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Richardson v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

January 19, 2018

EVERY RICHARDSON PLAINTIFF
v.
JASON KELLEY and ESTELLA BLAND DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to Chief United States District Judge Brian S. Miller. You may file written objections to all or part of this recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         I. Introduction

         Plaintiff Every Richardson commenced this case by filing a complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 2). In the complaint, he alleged that his constitutional rights were violated because the defendants were deliberately indifferent to his serious medical needs. He specifically alleged that infected wounds on his right ankle have not been properly treated and his requests for pain medication have largely been ignored. Richardson sues defendants in both their official and individual capacities and seeks both compensatory and punitive damages. See Doc. No. 2 at 1 & 3.

         Defendants Wendy Kelley and Rory Griffin were previously granted summary judgment. See Doc. Nos. 84 & 85. Richardson moved for summary judgment and filed a declaration and statement of undisputed facts in support. See Doc. Nos. 81 & 82. The remaining defendants, Jason Kelley and Estella Bland, filed a response asserting that Richardson's motion was premature and asking for additional time to file a response or a cross-motion for summary judgment on the merits. Kelley and Bland subsequently filed a Motion for Summary Judgment along with a supporting brief and statement of facts (Doc. Nos. 87-89). Richardson filed a response, a brief in support, and a statement of disputed facts (Doc. Nos. 91-93). Kelley and Bland filed a reply (Doc. No. 94), and Richardson filed a response to their reply (Doc. No. 95). Having reviewed and considered all the pleadings, and for the reasons stated herein, the Court recommends that Richardson's Motion for Summary Judgment be denied and that defendants' Motion for Summary Judgment be granted.

         II. Facts[1]

         Medical Records, Deposition Testimony & Affidavit of Dr. Jeffrey Stieve[2]

         Richardson is 30 years old. Doc. No. 88-1 at 2. Richardson has been housed in a single-man cell during the relevant period of time. Doc. No. 88-3 at 13. Richardson does not participate in activities or attend yard call. Doc. No. 88-3 at 23. Richardson is not diabetic. Doc. No. 88-3 at 20. Richardson is not hypertensive. Doc. No. 88-3 at 20. Richardson has no other significant medical problems other than the bilateral wounds on his ankles. Doc. No. 88-3 at 20; Doc. No. 88-4 at 2. Richardson previously filed a similar lawsuit regarding ankle wounds. See Richardson v. Kelley, et al, 5:12-cv-00250-BSM at Doc. No. 76 (dismissed on defendants' motion for summary judgment on the merits, where defendants presented expert testimony that Richardson's wounds were intentionally or incidentally contaminated with human feces) (E.D. Ark. April 16, 2014).

         Richardson has been provided a number of different medications for pain related to his bilateral ankle wounds, including salsalate, ibuprofen, nortriptyline, naproxen and gabapentin. Doc. No. 88-4 at 2; Doc. No. 88-3 at 71. Richardson maintains that during the relevant period of time for this lawsuit, he was given gabapentin and two ineffective medications along with gabapentin. Doc. No. 93 at 2. Richardson also testified that Tylenol is available in the commissary but he did not attempt to purchase it because gabapentin was the only medication which was effective in treating his pain. Doc. No. 88-3 at 70, 76-77. However, gabapentin is not indicated for this sort of pain. Doc. No. 88-4 at 2. Treatment with gabapentin in this context is an off-label use. Id. Richardson notes that at least five doctors, including Dr. Stieve, prescribed gabapentin for his pain. Doc. No. 91 at 5.

         Richardson has been provided with a number of diagnostic tests including x-rays (to explore the possibility of osteomyelitis), doppler studies (to explore the possibility of poor circulation), multiple wound cultures (to explore the wound for contamination such as bacteria and to determine which antibiotics may be indicated to treat any such bacterial infection) as well as numerous physical clinical exams. Doc. No. 88-4 at 2; Doc. No. 88-1. In addition, Richardson was provided with dressing changes; antibiotics; and other modalities designed to keep the wound clean and aid in healing. Doc. No. 88-4 at 2-3; Doc. No. 88-1. Some of the dressing changes and antibiotic treatments were missed as acknowledged in the response to Richardson's grievances (described below). Richardson was also transported to Little Rock on seven occasions between March 24, 2016, and May 23, 2016, for wound care at the Arkansas Heart Hospital Wound Center. Doc. No. 88-4 at 3; Doc. No. 88-2. Despite the above referenced clinical tests and treatments, Richardson's wounds would repeatedly scab over and heal and then again become open fresh wounds. Doc. No. 88-4 at 3; Doc. No. 88-3 at 18-19. Richardson believes his wounds reopen when his legs swell. Doc. No. 88-3 at 18. He testified that he believed his wounds were almost healed after treatment at the wound clinic because he received a compression dressing there that controlled the swelling. Id. at 27.

         On various occasions, Richardson refused treatment call. Doc. No. 88-4 at 2; Doc. No. 88-3 at 102-103; Doc. No. 88-1 at 26, 29, 37, 38, 94 & 102. Richardson also refused a Rocephin injection (antibiotics). Doc. No. 88-3 at 103. Richardson testified he may have missed treatments if he was asleep or listening to his radio when the nurse came by. Doc. No. 88-3 at 53. Richardson's medical records reveal that his bandages were often loose, wet or otherwise contaminated. Doc. No. 88-4 at 2; Doc. No. 88-3 at 102-103; Doc. No. 88-1 at 33, 68, 71, 72, 79, 85, 91, 98, 120 & 129. The medical records show, and Richardson testified, that despite medical advice to the contrary, Richardson repeatedly used non-sterile coverings for his wounds, such as brown paper towels, tissues, bed sheets, t-shirts and towels. Doc. No. 88-4 at 3; Doc. No. 88-3 at 62-63. Richardson claims he was forced to do so because he was not provided with appropriate and timely dressing changes. Doc. No. 88-3 at 37, 58 & 63-64. Richardson testified that he is capable of bandaging his own wounds. Doc. No. 88-3 at 57 & 59. Richardson testified that band aids are available on the commissary. Doc. No. 88-3 at 58.

         Dr. Stieve has opined that there is no indication that Richardson has a systemic infection or Dr. Stieve would have expected lesions to develop elsewhere on Richardson's body. Doc. No. 88-4 at 3. In Dr. Stieve's professional opinion, Richardson's wounds are the result of either deliberate or incidental contamination. Doc. No. 88-4 at 3. As was the case in the previous lawsuit, Richardson admits that E. coli was found in Richardson's wound during the relevant time period. Doc. No. 88-3 at 65. He believes the wounds are infected with E. coli while he is taking showers. Id. at 105. The organisms (bacteria from non-sterile sources) causing infection were recognized, assessed and treated. Doc. No. 88-4 at 3; Doc. No. 88-1; Doc. No. 88-2. Dr. Stieve opined that continued contamination by Richardson, after appropriate medical advice on sterile processes, had an adverse effect on the expected medical outcome. Doc. No. 88-4 at 3.

         Richardson has no formal medical education or training. Doc. No. 88-3 at 12. Richardson testified that he does not know who was responsible for treatment call in 2015, but believes that Nurses Boatner and Hargrave were primarily responsible. Doc. No. 88-3 at 35-36. Kelley's position with ADC is Health Services Administrator, and he does not typically provide direct patient care. Doc. No. 88-4 at 1-2; Doc. No. 88-3 at 29-30. Richardson testified that Kelley did not provide him with direct patient care and was not responsible directly for doing dressing changes himself. Doc. No. 88-3 at 29-30.

         Richardson testified that he cannot say what should have been done better in his medical case only that medical staff did not do what they were supposed to do. Doc. No. 88-3 at 118-119. It is Dr. Stieve's professional opinion that the medical care and treatment provided to Richardson has been appropriate and satisfactory for Richardson's complaints. Doc. No. 88-4 at 3. Dr. Stieve's conclusion is consistent with sound medical practices and his own professional judgment. Id. In Dr. Stieve's opinion, Richardson suffered no damage as a result of the medical care he received during the relevant period of time. Doc. No. 88-4.

         Richardson's Grievances[3]

         Richardson submitted two grievances in November 2015 complaining about his ankle wound care. Doc. No. 82 at 87 & 91. Richardson specifically complained in Grievance VSM15-5079 that Bland refused to increase his gabapentin prescription from 300 mg to 600 mg. Id. at 91. Kelley responded with an outline of the medical care and pain prescriptions Richardson had received and found the grievances to be without merit because Richardson had been adequately treated. Id. at 88 & 92. With respect to Richardson's pain prescription, Kelley noted that his 600 mg gabapentin prescription expired July 25, 2015, and that Richardson had been seen four times with no new prescription for gabapentin until Dr. Stieve prescribed 300 mg gabapentin (three times daily) on October 22, 2015. Id. at 92. Kelley concluded that Bland did not reduce Richardson's prescription but simply continued the one prescribed by Dr. Stieve. Id.

         Between November 28, 2015, and February 13, 2016, Richardson submitted 19 grievances complaining that he had not received treatment calls for dressing changes or medications. Id. at 2-8; 33-77, 82-86, 95-103.[4] All but one of these grievances were found to be with merit, and Richardson was informed by Kelley numerous times that corrective action would be taken. Id. Kelley first responded to grievances submitted between November 28, 2015, and December 3, 2015, on January 4, 2016, stating in part:

A review of your medical records indicates you did not receive treatment call multiple times from 11/27/15 through 1/4/16. This is unacceptable and will be dealt with by Varner Medical Unit management. Treatment call in VSM is assigned to particular nurses. The assignment sheets will be reviewed and corrective action taken. I find this grievance with merit.

Id. at 34, 37, 40, 43, 96.

         By the time Kelley responded to these grievances on January 4, 2016, Richardson had missed 12 treatments. Kelley responded to a grievance submitted on December 12, 2015, on January 20, 2016, in relevant part:

A review of your medical records indicates you did not receive treatment call on 12/12/15. This is unacceptable and will be dealt with by Varner Medical Unit management. Treatment call in VSM is assigned to particular nurses. The assignment sheets will be reviewed and corrective action taken. I find this grievance with merit.

Id. at 46. Kelley responded to three more grievances on February 1, 2016, stating in relevant part:

A review of your medical record indicates you do not have a treatment call documented 15 times since December 1st. Management is aware of the issue and measures have been taken to improve on the situation. If you do not receive treatment call on a particular day, please submit a Request for Interview to Mr. Kelley, HSA, so management can be immediately aware of the situation and corrective action can be taken. I ...

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