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Wilmoth v. Gilbert

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

February 20, 2018

MICHAEL SHANE WILMOTH PLAINTIFF
v.
INTERIM SHERIFF MEYER GILBERT, Benton County, Arkansas; LIEUTENANT JESUS MARTINEZ; SERGEANT MICHAEL V. LIRA; DEPUTY AUSTIN MURPHY; CORPORAL KEMP; SERGEANT DOWYER; MAJOR JEREMY GUYLL; NURSE SHEA SMITH; DR. ROBERTO SAEZ; and NURSE TYRANNY RAY DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS JUDGE

         This is a civil rights action brought by the Plaintiff pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis.

         Although Plaintiff is currently incarcerated in the East Arkansas Regional Unit of the Arkansas Department of Correction (ADC), the events at issue in this case occurred while he was incarcerated in the Benton County Detention Center (BCDC).[1] Plaintiff contends that, during his incarceration at the BCDC, his constitutional rights were violated in the following ways: (1) he was denied adequate medical and mental health care; (2) excessive force was used against him; and (3) he was subjected to disciplinary action based on falsified documents and given an excessive punishment.

         The case is before the Court on two Motions for Summary Judgment. The first Motion for Summary Judgment (Doc. 49) was filed by Separate Defendants Dr. Roberto Saez, Nurse Tyranny Ray, and Nurse Shea Smith (collectively, "Medical Defendants"). The second Motion for Summary Judgment (Doc. 52) was filed by Separate Defendants Sheriff Meyer Gilbert, Lieutenant Jesus Martinez, Sergeant Michael V. Lira, Deputy Austin Murphy, Corporal Kemp, Sergeant Dowyer, and Major Jeremy Guyll (collectively, "County Defendants"). Plaintiff has responded (Doc. 81) to both Motions and they are now ripe for decision.[2] For the reasons stated herein, the Medical Defendants' Motion for Summary Judgment (Doc. 49) is GRANTED, and the County Defendants' Motion for Summary Judgment (Doc. 52) is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         Because the instant Motions are one for summary judgment, the Court will recite the facts in the light most favorable to Wilmoth, the non-moving party, and will limit its discussion only to what is necessary to provide context for the Court's decision. In addition, because the two Motions deal with very different sets of facts, the Court will recite the most pertinent facts in two separate sections. Finally, because the sequencing of events is of considerable importance to certain of Plaintiffs claims, in each section, the Court will recount events chronologically.

         A. Facts with respect to the Medical Defendants

         Dr. Roberto Saez is a physician who, at all times relevant to this lawsuit, was under contract with Southern Health Partners, Inc. ("SHP"), to provide medical services to inmates housed at the BCDC. (Doc. 50-1, p. 1). Tyranny Ray and Shea Smith are nurses who were similarly employed by SHP to provide medical services for inmates housed at the BCDC. (Doc. 50-2, pp. 1, 4).

         Plaintiff was booked into the BCDC on July 6, 2016. (Doc. 54-2, p. 1). A mental health screening form was completed on that same day. (Doc. 54-3, p. 2). Plaintiff indicated he was receiving care at Dayspring Behavioral Health and was currently taking Plaquenil, Trazodone, and Klonopin. Id. at 2, 3 (spelling corrected).[3]

         According to Nurse Ray, she saw the Plaintiff on July 7, 2016, to conduct his intake screening, but Plaintiff refused to be screened and refused to sign a consent for treatment form. (Doc. 50-2, p. 2; Doc. 50-3, pp. 2, 3). Plaintiff denies that he refused to be screened and/or refused to sign a consent to treatment form. (Doc. 81, p. 3). Further, he states that he never saw or talked to Nurse Ray on July 7, 2016. Id. at 4. However, at some point, it is undisputed that Plaintiff told Nurse Ray that he was taking "home medications" and, as a result, Nurse Ray contacted his family to have his medications brought to the BCDC. (Doc. 50-2, p. 2).

         On July 18, 2016, Plaintiff submitted his first medical request via the electronic kiosk system. (Doc. 50-2 at 2; Doc. 50-4, p. 1). In the request, Plaintiff stated he had been contacted by his doctors and they needed him to sign a medical authorization for release of his records. In addition, he mentioned that his family had dropped off some medications, but he had not yet received them. (Doc. 50-4, p. 1). The very next day, Nurse Ray, responding to his message, advised Plaintiff that the only medication dropped off was Plaquenil, asked what he was taking that for, and stated that he had not been given Plaquenil because the discontinue date on the medication was May 15, 2016. Id. Plaintiff responded that he was taking the Plaquenil for a skin condition. (Doc 50-2, p. 2; Doc. 54-4, p. 2).

         On July 19, 2016, Plaintiff indicated he had not refused an inmate visit and had never even been called for a medical visit. (Doc. 54-4, p. 3). Nurse Ray responded: "addressed." Id.] see also (Doc. 54-7, p. 32). That same day, Dr. Saez ordered that Plaintiff be continued on Plaquenil for his skin condition. (Doc. 50-1, p. 1).

         On July 20, 2016, Plaintiff submitted a kiosk entry thanking Nurse Ray for her help in addressing his issues and asking if she could obtain his records from Ozark Guidance. (Doc. 50-4, p. 2). She responded that she was working on it. Id. The Ozark Guidance records subsequently obtained indicate that Plaintiff had been diagnosed with Intermittent Explosive Disorder, Generalized Anxiety Disorder, Post-Traumatic Stress Disorder, and Unspecified Bipolar Disorder. (Doc. 54-3, p. 1). When he is not on his mental health medication, Plaintiff testified he is "highly explosive" and "quick tempered." (Doc. 54-7, p. 13).

         On July 21, 2016, Plaintiff asked when he would be placed back on his mental health medications. (Doc. 50-2, p. 2; Doc. 50-4, p. 4). Nurse Ray responded that she was waiting for his mother to bring the medications to the BCDC so that she could verify them. (Doc. 50-4, p. 4).

         On July 22, 2016, Plaintiff submitted a medical request stating that, prior to his incarceration, he had been seen at Daysprings and prescribed Lithium. (Doc. 50-2, p. 3; Doc. 50-4, p. 5). However, the doctor would not start him on Lithium without having blood tests performed first.[4] (Doc. 50-4, p. 5). Plaintiff had not had his blood collected prior to being booked in. (Doc. 50-2, p. 3).

         On July 25, 2016, Plaintiff asked again about his mental health medications, stating his mental state had "gotten extremely worse I need my meds very bad." (Doc. 50-4, p. 6). Nurse Ray again responded that she was waiting for his mother to bring in the medications. Id. Plaintiff stated that he and his family had to do a lot of work within the first couple of weeks of his incarceration to get his medications and his records brought up to the BCDC. (Doc. 54-7, pp. 33-34).

         On July 26, 2016, Plaintiff submitted a request stating that Ozarks Community Hospital (OCH) in Gravette, Arkansas, would not allow his mother to pick up his medications without a signed release. (Doc. 50-2, p. 3; Doc. 50-4, p. 7). He signed the release the next day. (Doc. 50-2, p. 3; Doc. 50-3, p. 5). The OCH records indicated Plaintiff had been on Klonopin for anxiety and Oxycodone for right ankle pain. (Doc. 50-2, p. 3; Doc. 50-3, p. 6).

         On July 27, 2016, Dr. Saez started Plaintiff on Trazodone, 50 mg., for anxiety and depression.[5] (Doc. 50-1 at 1). Plaintiff submitted a medical request stating that his family had been told that medical staff could help get him transferred to a "mental hospital" and asking how they got this accomplished (Doc. 81-1, p. 11). Nurse Ray responded that the judge and attorneys were the ones responsible for doing that and that medical staff had no authority to transfer an inmate to a mental hospital. Id. Plaintiff submitted a second request on July 27, 2016, stating that his "free world doctor gave m[e] traz[o]done to be taken at night." (Doc. 81-1, p. 12). He said taking it in the morning would be more than he could handle if he was forced to stay out of his cell. Id. If the medication was going to be given in the morning, he said he should be placed in a medical cell. Id. Nurse Ray responded: "addressed." Id.

         On July 28, 2016, the Trazodone was discontinued. (Doc. 50-1, p. 1). Plaintiff testified that the Medical Defendants would only prescribe Trazodone so that it was taken in the morning. (Doc. 54-7, p. 21). He indicated that this would make him "severely sleepy-almost unconscious to a point." Id. In short, he testified that there was "no way [he] could take it in the morning and function." Id. He maintains the medication should have been prescribed in accordance with his private doctor's orders. (Doc. 81, p. 6). He also states he never had depression. Id. However, Plaintiffs own exhibit indicates he reported being very depressed at times when seen at Ozark Guidance on February 4, 2016. (Doc. 81-2, p. 2).[6]

         That same day, Plaintiffs blood was collected and sent to Quest Diagnostics for testing. (Doc. 50-1, p. 1). The results were faxed to the BCDC on July 29, 2016. (Doc. 50-3, pp. 7-8).

         On August 1, 2016, Plaintiff submitted a request asking about his mental health medications. (Doc. 50-2, p. 3). He said his medication was not being given to him as prescribed by his doctor and his "mental health is getting extremely worse" (Doc. 50-4, p. 8). On August 2, 2016, Plaintiff submitted another request stating that the "issue needs addressed as soon as possible my mental health condition is getting extremely worse." Id. Nurse Ray replied that she had sent the blood work results to Daysprings but had not heard back from them. (Doc. 50-2, p. 3; Doc. 50-4, p. 8). Nurse Ray asked him if he wanted to be seen by the jail doctor, and Plaintiff was subsequently placed on the doctor call list. (Doc. 50-2, p. 3).

         On August 4, 2016, Plaintiff asked to see Ms. Susan, of social services, regarding his mental health needs. (Doc. 81-1, p. 15). Nurse Ray replied that she had given the request to Susan. Id. On August 8, 2016, Plaintiff submitted a request for Ms. Susan asking that she let him know what she found out. (Doc. 81-1 at 16). He also stated that there was a supplemental security income issue that he forgot to talk to her about. Id. Again, his request was given to Susan. Id.

         On August 11, 2016, Plaintiff asked when he would be seeing the doctor. (Doc. 81-1, p. 18). He stated he was "on the verge of having a major mental break down." Id. In response, Nurse Ray stated he would be seeing the doctor the next day. Id.

         Plaintiff testified that during his disciplinary hearing[7] on August 12, 2016, Lieutenant Martinez could tell Plaintiff was having severe mental health issues. (Doc. 54-7, p. 37). Plaintiff testified he was edgy, experiencing anxiety, and appeared to be aggressive when he was just trying to convey his thoughts. Id. at 38. He also testified that he uses his hands a lot when he talks and gets loud and boisterous. When Plaintiff advised that he was not currently on mental health medication, he testified that Lieutenant Martinez said they needed to fix that and went straight to the doctor's office. Id. at 37.

         On August 12, 2016, Dr. Saez saw the Plaintiff at doctor call. (Doc. 50-1, p. 2). Dr. Saez reviewed Plaintiff's blood test results from Quest Diagnostics. Id. Dr. Saez started Plaintiff on Lithium which is used for the treatment of manic episodes of bipolar disorder. Id.; see also Doc. 50-3, p. 11. That same day, Plaintiff was also started on Ibuprofen twice a day, for a week, for pain resulting from a physical altercation. (Doc. 50-1, p. 2; Doc. 50-3, p. 9).

         On August 13, 2016, Plaintiff said he really needed to speak with Nurse Ray about his medication. (Doc. 81-1, p. 20). Nurse Ray responded: "duplicate." Id.

         The next day, Plaintiff submitted a request complaining of severe headaches, his jaw hurting, and having problems with his medication. (Doc. 81-1, p. 21). Nurse Jakovich responded that Plaintiff was already on Ibuprofen and had not been on the new medication long enough for it to be effective. Id.

         On August 15, 2016, Plaintiff said it was very important he saw Nurse Ray about his medication and that the request was not a copy. (Doc. 50-4, p. 9). Plaintiff complained of an allergic reaction to the Lithium. Id. He stated his lips and throat were swollen and also complained of headaches. Id. Nurse Ray saw Plaintiff on August 16, 2016. (Doc. 81-1, p. 22).

         On August 17, 2016, Plaintiff's Lithium prescription was discontinued because of Plaintiffs report of having an allergic reaction to it. (Doc. 50-1 at 2). On August 18, 2016, Plaintiff submitted a request stating he needed to see the doctor. (Doc. 81-1, p. 23). Nurse Ray asked what he needed to see the doctor about. Id. Plaintiff replied that his skin was getting worse and he needed something for his mental health. Id. at 24. Nurse Ray responded that he would be put on the list. Id.

         On August 20, 2016, Plaintiff submitted a medical request stating that his emotions went from one extreme to the other and he was losing massive amounts of weight. (Doc. 54-4, p. 16). He stated he did not care about the reaction he had to Lithium and that he needed something. Id. That same day, Plaintiff submitted a medical request saying he had not had a migraine for two years until the incident on August 12, 2016, and was now having them constantly. Id. at 17.

         On August 21, 2016, he submitted another request saying he did not want to get in more trouble than he was already in and to just put him back on Lithium. (Doc. 54-4, p. 16). Nurse Ray replied that Dr. Saez had ordered another medication, Zyprexa (olanzapine), for him to try and that he would begin receiving it the following day. Id.

         On August 22, 2016, Plaintiff was prescribed Zyprexa as a mental health medication.[8] (Doc. 50-1, p. 2; Doc. 50-3, p. 10). On August 26, Plaintiff complained of mood swings. (Doc. 50-1, p. 2). As a result, the Zyprexa dosage was increased to 7.5 mg. Id.

         On August 28, 2016, Plaintiff complained he was still having migraines over his left eye and that his jaw hurt. (Doc. 50-4, p. 10). He stated that the doctor had told him that he would get Plaintiff taken care of but nothing was done. Id. Nurse Ray asked if he would like some Ibuprofen and he responded yes. Id. On August 29, 2016, Dr. Saez prescribed Ibuprofen, 600 mg., twice a day for ten days. (Doc. 50-1, p. 2; Doc. 50-3, p. 10).

         On September 3, 2016, Plaintiff submitted a request asking if his skin cream had ever been brought to the jail. (Doc. 81-1, p. 32). In response, he was told Nurse Ray would be asked to check on it Monday. Id.

         The following day, Plaintiff submitted a medical request stating he still had a knot on his head from the incident on August 12, 2016, was having severe migraines over his left eye, and his jaw still hurt "extremely bad." (Doc. 54-4, p. 19). In a second request submitted that day, Plaintiff stated he was still having some anxiety and panic attacks, could not sleep well, and still had some mood changes. Id. Nurse Ray responded: "ok." Id.

         On September 9, 2016, Plaintiff again complained of headache and jaw pain. (Doc. 50-1, p. 2). His Zyprexa dosage was increased to 10 mg. and he was started on a muscle relaxer, Flexeril, 10 mg., twice a day for seven days, and given Ibuprofen, 600 mg., twice a day for fourteen days. Id.; see also Doc. 50-3, pp. 10, 12.

         On September 13, 2016, Plaintiff submitted a request asking the names of the medications he was taking and in what dosage. (Doc. 81-1, p. 34). He also stated the doctor had said he was increasing his dosage but it appeared he was still getting 7.5 mg. pills. Id. Nurse Ray responded that he was receiving: hydroxychloroquine (Plaquenil) 200 mg., twice a day; cyclobenzaprine (Flexeril) 10 mg., twice a day; olanzapine (Zyprexa) 10 mg., once a day; and Ibuprofen, 600 mg., twice a day. Id.

         On September 15, 2016, Plaintiff submitted a request advising Nurse Ray that one of his creams that had been brought to the jail was trashed. (Doc. 81-1, p. 35). Plaintiff said he had told the doctor it was almost empty and the doctor said he would reorder it along with an order for Plaintiff's shampoo. Id. Plaintiff states the nurse then said he would not get the shampoo. Id. Plaintiff asked why it could not be placed on the med cart and he could fill his small bottle when he needed to. Id. Nurse Ray responded: "ok." Id.

         On September 25, 2016, Plaintiff submitted a request saying he needed his Ibuprofen reordered because he was still having headaches and his jaw was still hurting. (Doc. 81-1, p. 36). Nurse Ray responded that his current prescription had expired and that he would need to talk to the doctor. Id. That same day, Plaintiff submitted a request asking whether his cream that had been thrown in the trash was being reordered. Id. at 37. Nurse Ray responded: "ok." Id.

         On September 28, 2016, Plaintiff submitted a request stating he needed to see the doctor. (Doc. 81-1, p. 39). Nurse Ray asked what the reason was. Id.

         On October 10, 2016, Plaintiff submitted a request stating he had two seizures on the previous Friday and Saturday. (Doc. 50-2, p. 4; Doc. 50-4, p. 11). He also stated he was still having migraines and his jaw still hurt. (Doc. 50-4, pp. 11-12). Nurse Ray evaluated Plaintiff at nurse call on October 11, 2016. (Doc. 50-4, p. 12). Plaintiff reported a history of seizures but stated he had not taken Dilantin, an anti-epileptic medication, since December of 2015. (Doc. 50-2, p. 4; Doc. 50-4, p. 12). Plaintiff was placed on the doctor list. Id. Dr. Saez saw Plaintiff again on October 14, 2016, when he stated he had two seizures. Dr. Saez noted that the seizures had not been witnessed by anyone and gave no new orders. (Doc. 50-1, p. 2).

         On October 16, 2016, Plaintiff submitted a grievance stating that he was being denied medical attention for an injury caused by a deputy. (Doc. 54-4, p. 21). Lieutenant Holt replied that all medical decisions were made by medical staff. Id. He forwarded the grievance to medical staff. Id. Nurse Ray asked him how he was being denied medical attention. Id.

         On October 24, 2016, Plaintiff submitted a request saying he was feeling shaky between meals and felt like he was going to pass out. (Doc. 81-1, p. 43). He was seen by Nurse Ray on October 26, 2016. Id.

         Plaintiff asserts that the care given by the Medical Defendants during his incarceration at the BCDC was deficient in numerous ways. With respect to Dr. Saez, Plaintiff testified that Dr. Saez said he did not believe the Plaintiff had seizures and refused to treat him for them. (Doc. 50-5, p. 2; Doc. 54-7, p. 49). Even after the nurse documented his history of seizures, Plaintiff indicated the doctor refused to treat him. (Doc. 54-7, p. 49). Plaintiff also believes Dr. Saez should have either prescribed him Klonopin or at least weaned him off of it, or given him something for the side effects. (Doc. 54-7, p. 45). Plaintiff testified as a result of the medication being stopped abruptly he suffered withdrawal, was sick to his stomach, had a headache, and suffered from severe anxiety. Id. The symptoms lasted about a week or week and a half. Id. Plaintiff also testified Dr. Saez refused to allow him to take his Trazodone in the evening. Id. at 49.

         With respect to Nurse Ray and Nurse Smith, Plaintiff contends they should never have let the guard issue him his medications. (Doc. 54-7, pp. 46-47, 50, 95). Plaintiff testified that for nearly the entire month that he was in red and white stripes, [9] the guards brought him his medication. (Id. at 47-48). He also did not believe Nurse Ray followed up on his mental health medications in a timely manner and did not have him seen. (Doc. 50-5, p. 2). With respect to his official capacity claims, Plaintiff testified that he did not at that time know what policy, custom, or practice violated his constitutional rights, but he stated that he had requested copies of the policies and had not received them yet. Id.

         The Medical Defendants deny being deliberately indifferent to Plaintiff's medical needs. By affidavit, Dr. Saez states he "used sound professional judgment when [he] prescribed medications for [Plaintiffs] various medical and mental health needs." (Doc. 50-1, p. 3). Dr. Saez states he provided Plaintiff with "appropriate and timely care, and I met or exceeded all applicable standards of care." Id. Dr. Saez asserts that he was not deliberately indifferent to Plaintiffs serious medical needs. Id. By affidavit, Nurse Ray states that Plaintiff was considered a safety risk to the healthcare staff. (Doc. 50-2, p. 4). With respect to medication being passed out, Nurse Ray states:

[b]ecause Plaintiff was considered a safety risk, correction officer accompanied nurses while passing medications to Plaintiff. The nurses handed the medications to the correction officer, who passed the medications to Plaintiff through the "beanhole" in the cell door. At no time did a correction officer pass medications to Plaintiff without a nurse present.

Id.

         Nurse Ray asserts that neither she nor Nurse Smith were deliberately indifferent to Plaintiff's serious medical needs. (Doc 50-2, p. 4). Nurse Ray also asserts that she and Nurse Smith provided Plaintiff with "appropriate and timely nursing care." Id. at 5. Further, both Dr. Saez and Nurse Ray assert that no policy or custom of SHP was unconstitutional, or exhibited deliberate indifference to Plaintiffs serious medical needs. Id.; see also Doc. 50-1, p. 3.

         B. Facts with respect to the County Defendants

         Plaintiff was booked into the BCDC on July 6, 2016, after being arrested on a parole violation charge. (Doc. 54-2, pp. 1-2). He was also charged by the Bella Vista Police Department with domestic battery, assault on a family or household member, and terroristic threatening. Id. at 3. On July 26, 2016, additional charges of tampering and violation of a no contact order were added. Id. at 13. On August 17, 2016, a parole revocation hearing was held and Plaintiff was found guilty of violating the terms of his parole.[10] Id. at 15-16. As a result, he was a pretrial detainee during the two incidents that form the backdrop of his claims against the County Defendants.

         1. Incident on August 11, 2016

         On August 11, 2016, there was an altercation in the pod control area. (Cnty. Defs.' Ex. B (conventionally filed DVD)).[11] The video shows Plaintiff coming out of the pod door into the pod control area. There are three officers present in addition to the officer standing in the elevated control area. Plaintiff stands with his arms behind his back against the pod windows. He is directed to the half wall surrounding the control area and puts his forehead against the wall and stands with his hands behind his back. When he begins talking, he moves his head from the wall, and starts shaking his head and looking from one side to another. He turns partially towards one of the officers and then turns back to face the wall. Then, he takes his hands from behind his back and talks in an agitated manner. When one officer moves towards Plaintiff with a pair of handcuffs, Plaintiff quickly turns towards the officer and throws his hands up in the air. He is quickly taken to the floor. One officer is on top of him and two officers help hold him down. One officer attempts to get handcuffs on ...


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