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De Rossitte v. Correct Care Solutions, Inc.

United States District Court, W.D. Arkansas, Hot Springs Division

February 9, 2018

CHRISTOPHER EUGENE DE ROSSITTE PLAINTIFF
v.
CORRECT CARE SOLUTIONS, INC., DR. NANETTE VOWELL, NURSE MELISSA L. GIFFORD, HEALTH SERVICES ADMINISTRATOR ANDREA BEASLEY, NURSE GWENDOLYN E. HART, NURSE NICHOLE A. ROBINSON, RORY GRIFFIN, WENDY KELLEY, AND NURSE RICHARD MORGAN DEFENDANTS

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed by Plaintiff, Christopher Eugene De Rossitte, pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. Currently before the Court is Plaintiff's Motion for Preliminary Injunction. (ECF No. 39). Defendants have filed Responses in opposition to the motion. (ECF Nos. 40, 42). Plaintiff filed a Reply to the Responses. (ECF No. 45).

         I. BACKGROUND

         Plaintiff is currently incarcerated in the Arkansas Department of Correction (“ADC”) Ouachita River Unit (“ORU”). Plaintiff filed his initial Complaint on May 4, 2017.[1] (ECF No. 1). The following day, the Court ordered Plaintiff to file an Amended Complaint to state his claims against each defendant with factual specificity on the Court's approved § 1983 form. (ECF No. 7). On June 12, 2017, Plaintiff filed an Amended Complaint but failed to use the Court's form as directed to clearly indicate what claim Plaintiff was making against each Defendant.[2] (ECF No. 11). On August 21, 2017 the Court directed Plaintiff to file a Second Amended Complaint on the court-approved § 1983 form limiting him to a total of ten (10) pages. (ECF No. 13).

         Plaintiff filed a Second Amended Complaint on September 5, 2017, naming Correct Care Solutions, Inc. (“CCS”), Dr. Nannette Vowell, Nurse Melissa L. Gifford, Andrea Beasley, Gwendolyn Hart, Richard Morgan, Rory Griffin, Wendy Kelly and Nichole A. Robinson as Defendants. (ECF No. 14).[3] He claims he has been denied medical care in violation of the Eighth Amendment and the American with Disabilities Act and has been retaliated against for seeking legal action.[4] Id.

         Plaintiff filed his Motion for Preliminary Injunction on January 5, 2018. In the motion, Plaintiff requests:

“a Preliminary Injunction, to immediately remedy the undue suffering the Plaintiff continues to face in direct violation of the Eighth Amendment to the United States Constitution; specifically that the Arkansas Department of Correction through its officers and health services contractor Correct Care Solutions, Inc., be immediately ordered to provide all necessary medical care as to alleviate the Plaintiff's ongoing and untreated pain and suffering bringing ADC into compliance with its Constitutional obligations and CCS into compliance with its contractual obligations to ADC to such medical care to be expatiated herein.”

(ECF No. 39, p. 1)

         He goes on to describe numerous conditions and ailments he has endured for “over two and half years” as a result of the alleged denial of adequate medical care by Defendants. These ailments track the allegations in Plaintiff's Second Amended Complaint. Specifically Plaintiff's states:

“Over the past three years the Plaintiff has suffered from multiple symptoms which, though reported dozens of times, have gone entirely untreated and unaddressed: constant pain in the tissue of the face and head; daily headaches, sometimes severe; excessive thirst; difficulty swallowing; recurrent boils and bumps on face and forehead, occasionally elsewhere; repeated swelling of eyelids; earaches; poor blood work labs; persistent and recurring rashes; urine irregularities; bouts of nausea; shortness of breath; and muscle pain and weakness. Additionally the following symptoms have been ineffectively treated, individually, without attempt at further remedy or diagnosis of cause despite persistant complaints; constant eye pain; constant eye irritation; build-up of irritants under eyelids resulting persistant sleep deprivation; blurred cloudy and dimmed vision; constant sinus trouble; recurring cough; recurring sore throat; and edema on arms. Since the Plaintiff began work on this lawsuit he has also suffered recurring joint and bone pain and, arising from the bouts of nausea, recurring bouts of vomiting. For approximately the last two and a half years the Plaintiff has repeatedly suggested all of this frequently debilitating condition is the result of a single bacterial infection with several evident reasons to believe it is MRSA. (Methicillian Resistant Staphylococcus Aureas).”[5]

(ECF No. 39, pp. 2, 3)

         Plaintiff claims Defendants have refused to acknowledge that he has any infection and have “categorically and absolutely refused all diagnostic tests while providing no alternate opinion whatever as to the cause of these symptoms…The question of whether or not an infection exists, or a definitive diagnostic determination of the cause of these symptoms if not present, is absolutely central to the evaluation and resolution of this case.” Id. at 3. Based on these allegations, Plaintiff requests an immediate injunction ordering CCS to arrange for Plaintiff to be tested for MRSA by standard diagnostic means, [6] and commence an “appropriate” course of treatment upon receipt of the test results until Plaintiff is symptom free.

         In addition, Plaintiff requests an injunction ordering: 1) “all CCS staff named as Defendants in the Plaintiff's Second Amended Complaint, particularly Doctor Nannette Vowell and Nurse Melissa L. Gifford who have both actively engaged in retaliation against the Plaintiff…be prohibited from making any medical decisions, recommendations or examinations regarding the Plaintiff for the duration of this action and that Plaintiff's medical needs during this time be addressed by other available CCS Day Clinic staff”, [7] (ECF No. 39, pp. 7, 8); 2) the reinstatement of acetaminophen and Plaintiff's other prescriptions; and 3) the ADC through Defendants Kelly and Griffin, to “arrange to have a correctional officer (preferably one known to the Plaintiff to be of exceptional trustworthiness and good character such as Sgt. Rose, Sgt. Parks. Sgt Weehunt, Sgt. Clemmons, Lt. Caro or Lt. Elmore) to be present at all times during the collection, packaging and transfer of samples, maintaining observation of those to be sent to a lab...” (ECF No. 39, p. 10).

         Defendants CCS, Dr. Nannette Vowell, Andrea Beasley, Melissa Gifford, Gwendolyn Hart, Richard Morgan and Nichole Robinson (collectively referred to as “Medical Defendants”) filed a Response to Plaintiff's motion arguing he is not entitled to a preliminary injunction because Plaintiff fails to allege facts to support a conclusion that Plaintiff is in immediate danger of irreparable harm. Instead, they assert Plaintiff's medical records demonstrate his various complaints have been addressed by the medical staff at the ORU and he simply disagrees with the treatment he has been provided. (ECF No. 42). Defendants Rory Griffin and Wendy Kelley (collectively referred to as the “ADC Defendants”) ...


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