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Leavy v. Chardonay Dialysis Co.

United States District Court, W.D. Arkansas

July 24, 2018

MICHAEL LEAVY PLAINTIFF
v.
CHARDONAY DIALYSIS CO. and NURSE ABRAH ELLIS DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed 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 Defendants' Motion for Summary Judgment. (ECF No. 38).

         I. BACKGROUND

         Plaintiff filed his Complaint on December 7, 2016, alleging he was denied adequate medical care by Defendants, resulting in the loss of sight in his left eye.[1] (ECF No. 1; 42 at 2). Plaintiff has End Stage Renal Disease, [2] and undergoes dialysis[3] three times a week. (ECF Nos. 40 at ¶ 2; 42 at 10). His allegations center on the dialysis he was given by Defendant Ellis, an employee of Defendant Chardonay, on January 14 and 16, 2015, while incarcerated in the Arkansas Department of Correction Ouachita River Unit (ORU). (ECF No. 1 at 3-4). Plaintiff alleges he did not meet the criteria for dialysis on Wednesday, January 14, 2015, because his blood pressure was too high, his blood count and body weight were too low, and he told Defendant Ellis he did not feel well. (Id.). Despite these health complaints, Defendant Ellis insisted on administering dialysis. Plaintiff alleges he fell asleep and woke to Defendant Ellis placing cold towels on his face and injecting him with saline to cool him down. He told Defendant Ellis his vision was blurry, and he had a headache. She told him to return to the barracks and rest. (Id.). He alleges Defendant Ellis did not monitor his blood pressure during the dialysis. (Id. at 4). Plaintiff alleges a dialysis patient next to him said it looked as though he had been having a seizure before he was awakened. (Id.).

         On Friday, January 16, 2015, Plaintiff alleges he went to dialysis and told Defendant Ellis that his condition had not changed and was again given dialysis. (Id. at 4). He was told to rest in the barracks after dialysis. That night at approximately 8:00 p.m. his sight was getting worse, and he was instructed by the ORU hospital to put in a sick-call request. (Id.). Plaintiff was then assisted to the phone, where he called his mother and told her what had happened. The next morning Plaintiff was unable to see when he awoke. (Id.).

         Plaintiff alleges he was taken upstairs to the ORU Hospital, and then sent to St. Vincent's Hospital in Little Rock. On admission at St. Vincent's, his blood pressure was “near stroke level, ” and his blood count was so low that he needed four pints of blood. (Id.) Plaintiff alleges a physician at St. Vincent's told him he should not have been on the dialysis machine. (Id.).

         When Plaintiff was returned to ORU hospital, he was seen by Dr. McKinney, who stated he should not have been placed on the dialysis machine. Dr. McKinney told Plaintiff and his family that he would arrange for him to be seen at the Jones Eye Clinic. (Id.) Plaintiff alleges the physician there told him the damage to the nerves around his eyes meant that he had an eighty-percent chance of never regaining his vision. Plaintiff alleges the physician told him he had suffered a stroke due to high blood pressure, which had caused the damage. He alleges the physician told him he should not have been placed on the dialysis machine with his high blood pressure. (Id. at 5).

         Plaintiff alleges any policy by Defendant Chardonay which permitted a dialysis nurse to initiate dialysis on a patient with high blood pressure and low blood count is unconstitutional. (Id. at 6).

         Plaintiff proceeds against both Defendants in their official and personal capacity. (Id. at 5). He seeks punitive damages. (Id. at 6).

         Defendants filed their Motion for Summary Judgment on January 29, 2018. (ECF No. 38). On January 30, 2018, the Court entered an Order directing Plaintiff to file a Response to the Motion. (ECF No. 41). Plaintiff did so on March 2, 2018. (ECF No. 42). On March 6, 2018, the Court entered a Show Cause Order directing Plaintiff to file a Statement of Disputed Facts. (ECF No. 43). Plaintiff filed a Statement of Disputed Facts on March 22, 2018. (ECF No. 46).

         II. LEGAL STANDARD

         Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the record "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Once a party moving for summary judgment has made a sufficient showing, the burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists.” National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607 (8th Cir. 1999).

         The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient evidence to support a jury verdict in their favor." National Bank, 165 F.3d at 607 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "A case founded on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. (citing, Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         III. ...


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