United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS JUDGE
a civil rights action brought by the Plaintiff pursuant to 42
U.S.C. § 1983. He proceeds pro se and in
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). 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
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. 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.
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.
Facts with respect to the Medical Defendants
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).
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
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).
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).
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.
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).
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).
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. (Doc. 50-4, p. 5). Plaintiff
had not had his blood collected prior to being booked in.
(Doc. 50-2, p. 3).
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).
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).
27, 2016, Dr. Saez started Plaintiff on Trazodone, 50 mg.,
for anxiety and depression. (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:
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.
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).
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).
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
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.
testified that during his disciplinary hearing 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.
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).
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.
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.
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).
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.
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.
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.
August 22, 2016, Plaintiff was prescribed Zyprexa as a mental
health medication. (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
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).
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.
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.
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.
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.
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.
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:
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.
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).
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.
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.
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.
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,
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.
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
[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.
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.
Facts with respect to the County Defendants
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. 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.
Incident on August 11, 2016
August 11, 2016, there was an altercation in the pod control
area. (Cnty. Defs.' Ex. B (conventionally filed
DVD)). 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 ...