United States District Court, E.D. Arkansas, Pine Bluff Division
following Recommended Disposition
(''Recommendation'') has been sent to United
States District Judge Susan Webber Wright. Any party may file
written objections to this Recommendation. Objections must be
specific and include the factual or legal basis for
disagreeing with the Recommendation. An objection to a
factual finding must specifically identify the finding of
fact believed to be wrong and describe the evidence that
supports that belief.
original and one copy of the objections must be received in
the office of the United States District Clerk within
fourteen (14) days of this Recommendation. If no objections
are filed, Judge Wright can adopt this Recommendation without
independently reviewing all of the evidence in the record. By
not objecting, you may also waive any right to appeal
questions of fact.
Morlanthus Clay (“Clay”) is a type 2 diabetic who
takes insulin injections to control his blood sugar levels.
He has filed this pro se ' 1983 action alleging
that, while he was confined in the Arkansas Department of
Correction (“ADC”), Defendants Correct Care
Solutions, LLC (“CCS”), Dr. Brett Butler
(“Dr. Butler”), Advance Practice Nurse Aric Wade
Simmons (“APRN Simmons”); Health Services
Administrator Amy Rowland (“HSA Rowland”), and
Director of Nursing Don Kimble (“Nursing Director
Kimble”) violated his constitutional rights by failing
to provide him with adequate medical care for diabetes and
neuropathy. Doc. 2. Clay seeks $50, 000 in
compensatory damages and $25, 000 in punitive damages against
each Defendant. Id.
have filed a Motion for Summary Judgment on the merits of
Clay's inadequate medical care claim, a Brief in Support,
and a Statement of Undisputed Facts. Docs. 74, 75, &
76. Clay has filed a Declaration in Opposition to
Defendants' Motion for Summary Judgment, a Response, a
Brief in Support, a Response to Statement of Facts, and a
Statement of Facts. Docs. 91, 92, 93, 94 & 95.
addressing the merits of the Motion for Summary Judgment, the
Court will summarize the relevant undisputed facts giving
rise to Clay's inadequate medical care
February of 2015, Clay was transferred from the Tucker
Maximum Security Unit to the East Arkansas Regional unit.
(Doc. 2, ¶ 18).
February 17, 2015, Dr. Butler changed Clay's insulin from
Humalog R to Humulin R. Dr. Butler made this change despite
Clay informing him that he believed he had experienced
“adverse effects” from Humulin R in the past,
which allegedly led another doctor to change his insulin from
Humulin R to Humalog R. (Doc. 2, ¶ 19).
While Clay believes that he is allergic to Humulin R, he
acknowledges that no doctor has ever diagnosed him as having
an allergy to Humulin R. (Clay depo., Doc. 76-2,
Exh. B, at 22-23)
testified in his deposition that, if he takes Humulin R, he
experiences side effects “[w]ithin a month's
time” which include coughing, asthma, and loss of
appetite. (Clay Depo., Doc. 76-2, Exh. B at 3-6).
No. medical evidence supports Clay's subjective belief
that these “side effects” are caused by taking
Because of his belief that he is allergic to Humulin R, Clay
refused to take the Humulin R that Dr. Butler prescribed in
February of 2015. (Clay depo., Doc. 76-2, Exh. B, at
April 2, 2015, Dr. Butler changed Clay's insulin from
Humulin R to Novolin R to “pacify” Clay and stop
his complaints that he believed he was allergic to Humulin R.
Dr. Butler did not believe it was medically
necessary to make this change in Clay's insulin; nor did
he believe Clay was allergic to Humulin R. When he prescribed
Novolin-R for Clay, Dr. Butler was unaware there would be
future issues keeping it in stock. (Med. Records, Doc.
76-1, Exh. A at 4; Butler Decl., Doc. 76-4,
Exh. D at 2; Clay Depo., Doc. 76-2, Exh. B at 23).
April 24, 2015, Dr. Butler wrote an order, at Clay's
request, changing the timing of Clay's neurontin
medication to a morning dose. Clay complained that the four
days it took Dr. Butler to respond to Clay's written
request was too long. (Doc. 34, Exh. A at 30-32).
July 27, 2015, Clay was treated by APRN Simmons. During his
appointment, Clay requested APRN Simmons to change his
insulin regimen to three shots a day. After evaluating
Clay's condition, APRN Simmons made the medical decision
to keep Clay on a regimen of two insulin shots per day.
(Simmons Decl., Doc. 76-5, Exh. E at 1-2).
9. On a
number of dates between September 11 and October 22 of 2015,
Novolin R was unavailable when Clay appeared for pill call.
However, on all of those dates, Humulin R was available and
it was offered to Clay in lieu of Novolin R. Clay consistently
refused to take Humulin R in place of Novolin R. (Clay depo.,
Doc. 76-2, Exh. B, at 19; Kimble decl., Doc.
76-3, Exh. C at 1).
addition to offering Clay Humulin R when Novolin R was
unavailable, CCS's Nursing Director Kimble
continuously tried to explain to Clay that Novolin R
and Humulin R were interchangeable. (Kimble Decl., Doc.
76-3, Exh. C at 1; Simmons Decl., Doc. 76-5,
Exh. E at 3; Clay Depo., Doc. 76-2, Exh. B at 21).
Despite the ongoing educational efforts of Nursing Director
Kimble, and other members of CCS's medical staff, Clay
refused to receive the offered injections of Humulin R to
treat his diabetes. Clay also skipped meals in an effort to
manage his blood sugars. (Kimble ...