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Turner v. Helder

United States District Court, W.D. Arkansas, Fayetteville Division

November 30, 2017

MICHAEL R. TURNER PLAINTIFF
v.
SHERIFF TIM HELDER; DR. ROBERT KARAS; KARAS MEDICAL SERVICES; SERGEANT J. BYRD (#414); NURSE LANDON HARRIS; and R. WALKER DEFENDANTS

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         This is a civil right case filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis.

         Plaintiff is currently incarcerated in the Benton Unit of the Arkansas Department of Correction (ADC). At all times relevant to this Complaint, Plaintiff was incarcerated in the Washington County Detention Center (WCDC). Plaintiff contends his constitutional rights were violated when he was forced to wait fifty-one days for treatment of a painful dental conditions.

         Defendants filed a Motion for Summary Judgment (ECF No. 23). A hearing was held on July 10, 2017, to allow Plaintiff to testify in response to the Motion. Plaintiff testified by video from the ADC. At the conclusion of the hearing, the Motion was taken under advisement pending preparation of this Report and Recommendation.

         I. BACKGROUND

         Plaintiff was booked into the WCDC on August 8, 2016, on pending criminal charges and a parole violation. (ECF No. 25-2 at 1-7). He reported to the booking officer that he had a toothache. (Id. at 5); see also (ECF No. 25-7 at 13).

         According to Corporal Mulvaney, emergency medical services are available twenty-four hours a day at the WCDC. (ECF No. 25-1 at 2); see also (ECF No. 25-6 at 1-6). Officers are trained to respond to medical emergencies and can provide temporary lifesaving care while EMS or other medical personnel are in route. (ECF No. 25-1 at 2) The primary medical provider is the facility medical provider and his personnel. (Id.). Pursuant to a contract with Washington County, Dr. Karas and Karas Correctional Health have provided all medical and dental care at the WCDC since January 1, 2016. (ECF No. 25-1 at 3). "[A]ll medical, dental, and mental health coordination for inmates at the [WCDC] is provided pursuant" to the contract. (ECF No. 25-8 at 1). All matters of judgment regarding health services are within the sole province of the contract medical staff. (ECF No. 25-1 at 3). No employee of the WCDC is authorized to make non-emergency medical decisions. (Id.). No one in the Sheriff's Office makes any decisions as to whether or not to provide a particular medication, diagnostic testing, or medical treatment based on cost. (Id.).

         Detainees make medical and dental complaints via an electronic kiosk. (ECF No. 25-1 at 2). The complaints are reviewed by medical personnel. (Id.).

         According to Corporal Mulvaney, the WCDC acknowledges that dental health directly affects an individual's total health and medical status. (ECF No. 25-1 at 2). Detainees receive emergency dental care and other dental treatment as deemed necessary by a contract dentist. (Id.). Emergency dental care is available to those detainees experiencing acute dental problems such as severe pain, infection, bleeding gums, etc. (Id. at 3). The severity of the pain or infection will determine if the problem is an emergency. (Id.). Medical staff are responsible for assessing whether a dental complaint constitutes an emergency. (Id.). The contract with Dr. Karas "requires that a dentist be provided between 6 and 8 hours per month." (ECF No. 25-8 at 2). Detainees are put on the dental list when they make a complaint. "They are seen in order of their complaint." (Id.). The dentist sees inmates on one day per month and typically sees fifteen to twenty inmates. (Id.).

         According to Dr. Karas, "[d]ental caries (cavities) are rampant in the inmate population." (ECF No. 25-8 at 2). As a result:

the dentist list is generally full. The dental list may have 20 to 40 patients on it at a time. Anyone who is not seen is moved up the list to be seen at the next available time slot. The protocol for a typical dental complaint in the [WCDC] is to examine the area of the complaint, place the inmate on an antibiotic for 10 days to cover dental abscess in the root canal, and provide a pain killer for 10 days. Usually, an nsaid like naprosyn is used and can be given for longer than 10 days if the patient is having persistent pain.
Emergent dental needs are treated immediately in the same way that . . . emergent medical needs are. However, a broken or decayed tooth would not be considered an emergency dental need.
An emergent dental need would usually entail either trauma from a blow to the mouth or jaw (causing a lost, but intact tooth, that could be put back into place) or fever and a marked amount of facial swelling due to dental abscess. For a mild abscess, medical providers at the jail could drain most of these types of abscesses. If that is not possible, the inmate could be sent to the Emergency room, but not necessarily to a dentist.

(Id.).

         Approximately a week before his arrest, Plaintiff knew he had a cavity. (ECF No. 25-7 at 17-18). Any pain he was in as a result of the cavity may have been masked because of his illegal drug use. (Id. at 19-20 & 70). A few days prior to Plaintiff's arrest, when he was flossing, a piece of his tooth fell out. (Id. at 18). He did not go to the dentist before his arrest to have this fixed. (Id. at 19). He did not seek help with the pain. (Id.). The cavity had not progressed enough that he had problems eating. (Id.).

         In fact, Plaintiff indicated he had not been to a dentist since 2007. (ECF No. 25-7 at 68). When he had cavities and/or broken teeth previously, he usually had them taken care of within two weeks. (Id. at 69).

         On August 11, 2016, Plaintiff waived his revocation hearing and his parole was revoked. (ECF No. 25-2 at 8); (ECF No. 25-7 at 11). Plaintiff submitted his first written request for dental care on August 25, 2016. (ECF No. 25-3 at 2). Plaintiff was put on the sick call list for the next day. (Id.). He was not seen but was instead put on the list to see the dentist and prescribed Naproxen in the interim. (ECF No. 25-4 at 16). The Naproxen prescription was for August 26th to September 22, 2016. (Id. at 16-17).

         On August 27, 2016, Plaintiff was told he was put on the dental list. Plaintiff testified he was initially unaware he had been prescribed Naproxen. (ECF No. 25-7 at 24). Plaintiff testified that once he knew he had been prescribed the medication, he never refused it. However, Plaintiff believed there was one occasion on which he was not in the barracks to receive the medication.

         Plaintiff testified that he took Naproxen for thirty-seven days until the prescription ran out. Plaintiff testified that the Naproxen did not completely eliminate the pain but that it "took the edge off." Plaintiff testified that on September 3, 2016, the tooth broke off just above the gum line "leaving a sharp and jagged base." (ECF No. 25-3 at 4). Plaintiff stated the tooth was "extremely uncomfortable and painful as well." (Id.). He said it made it difficult to eat. (Id.). He asked if he could be seen by the dentist "as soon as humanly possible." (Id.). He noted he had been complaining about the toothache since he was booked in. (Id.). Nurse Walker responded that the dentist only came once a month and that inmates were seen in the order they were added to the list. (Id.). Nurse Walker stated Plaintiff was on the list, although she was not sure where on the list he fell. (Id.). She said a dentist would be there sometime "this month." (Id.).

         On September 23, 2016, Plaintiff submitted a request stating that he put in a request on August 25, 2016, to see the dentist because he had a cavity causing him a "good amount of pain and discomfort. (ECF No. 25-3 at 6). He noted he had been told he was on this list to see the dentist and given Naproxen for the pain. (Id.). He stated he had put in a second request to see the dentist on September 3, 2016, when the tooth broke off "causing even more pain and discomfort." (Id.). He indicated he was told he was still on the list and his medication remained the same dose and strength. (Id.). That day, Plaintiff stated he had been told his prescription for Naproxen had been for thirty days and ran out. (Id.). He indicated he still had not been seen by a dentist and his broken tooth was still causing him a "great amount of pain and discomfort." (Id.). He asked that the situation be immediately rectified. (Id.). In response, he was told that the provider would be consulted. (Id.).

         That same day, Dr. Veronica Dockery reviewed his request and authorized Plaintiff to have Naproxen for one more week. (ECF No. 25-4 at 15). She said any longer could cause intestinal bleeding and increase cardiovascular risk. (Id.).

         On September 24, 2016, the dentist was at the WCDC seeing inmates. Plaintiff was not seen. Plaintiff submitted a grievance. (ECF No. 25-3 at 6). He stated that the broken tooth was causing him great pain and discomfort especially when he ate. (Id.). He said he had been on the dental list for thirty days and was at risk of infection as well as other "compounded" medical problems. (Id.).

         Plaintiff asserted that he had not been provided acceptable medical care by the provider and the duty to provide care fell back on the facility. (Id.).

         In response, Sergeant Byrd said there were over fifty inmates on the list and that the dentist only had time to see twenty inmates. (ECF No. 25-3 at 6). Plaintiff was informed that the twenty inmates seen had been on the list longer than he had. (Id.). Sergeant Byrd said he would forward the grievance to the medical supervisor. (Id.).

         Plaintiff testified that in addition to his requests/grievances, he complained verbally about his dental pain. (ECF No. 25-7 at 73). Each time he complained, Plaintiff stated he was merely advised he was on the dental list. (Id.).

         On October 1, 2016, Plaintiff submitted a request that stated he was in a "great amount of pain" and extremely uncomfortable. (ECF No. 25-3 at 7). He stated it was very difficult to eat and sleep. (Id.). He noted he had been receiving Naproxen since August 26, 2016, but had been told that day that his prescription had run out and no new order had been placed. (Id.). He stated he still had not seen the dentist and needed "to be given medication for this pain. In fact I would really like to be given something strong[er] because although Naproxen alleviates some of the pain it does not remove it all. . . . I am being denied medical treatment, being forced to wait in excess of 36 ...


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