United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
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
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.
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.
Records, Deposition Testimony & Affidavit of Dr. Jeffrey
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).
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.
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.
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.
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
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.
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.
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.
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. 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.
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 ...