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Perry v. Helder

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

August 27, 2018




         Plaintiff, Al Gene Perry, filed this action pursuant to 42 U.S.C. §1983. He proceeds pro se and in forma pauperis.

         This case arises out of Plaintiff's incarceration in the Washington County Detention Center (WCDC). Plaintiff names as Defendants Sheriff Tim Helder, Dr. Robert Karas, and Nurse Veronica Dockery. Plaintiff sues the Defendants in their individual and official capacities, asserting that his constitutional rights were violated when he was denied adequate medical care. Specifically, he contends that he was not given a medication, Gleevec, prescribed to him by his oncologist, and that he was not given any treatment for a painful hernia. Further, Plaintiff alleges Defendants had a custom or policy of denying medical treatment to inmates until such a time as the Arkansas Department of Correction (ADC) would pay for the treatment.

         The case is before the Court on the Motion for Summary Judgment (ECF No. 30) filed by the Defendants. Plaintiff has responded (ECF No. 36) to the Motion. The Motion is now ready for decision.

         I. BACKGROUND

         For non-emergency medical care, WCDC inmates make medical complaints/requests via an electronic kiosk. (ECF No. 32-5 at 3 & 10).[1] The medical requests are reviewed daily by medical personnel. (ECF No. 32-1 at 2). “Nursing staff is responsible for checking the files of inmates under the medical provider's care and following all physician's orders that are noted in those files.” (Id.); see also (ECF No. 32-5 at 3). Any appointments with outside medical care providers are made by nursing staff. (ECF No. 32-1 at 2). “Since January 1, 2016, Dr. Rob Karas has been the Jail Medical Doctor and Karas Correctional Health has provided all medical care in the [WCDC] pursuant to a contract with Washington County.” (Id. at 2-3).

         Non-medical personnel are not permitted to make medical decisions except in emergency situations. (ECF No. 32-1 at 3). “All decisions regarding medications, medical testing, or medical treatment are left to the professional medical judgment of the physician at the detention facility.” (Id.)(emphasis omitted). Dr. Karas is not required to “consult with any employee of the [WCDC] before prescribing any medication, testing, or treatment.” (Id.); see also (ECF No. 40-1 at 2).

         Plaintiff was extradited from Texas after being held there for approximately twenty days and booked into the WCDC on July 29, 2017. (ECF No. 32-6 at 38 & 42);(ECF No. 32-2 at 1-2). He had no medications with him. (ECF No. 32-2 at 1-2). On July 31st, Plaintiff waived a parole revocation hearing and acknowledged that he would be placed in the custody of the ADC. (Id. at 3).

         On August 1, 2017, Plaintiff submitted his first medical request asserting that he needed his medications, Gleevec[2] and Lisinopril.[3] (ECF No. 32-3 at 1). He stated they could call Dr. Sarah Waley. (Id.). Nurse Southern responded that same day, stating that they had received his medications from his family. (Id.). Further, Nurse Southern stated that the provider had reviewed the medications but declined to prescribe them for Plaintiff. (Id.).

         On August 2, 2017, medical staff faxed a request for Plaintiff's records to Highlands Oncology Group (ECF No. 32-4 at 1). That same day, Plaintiff was seen by Nurse Dockery. (ECF No. 32-4 at 35). Plaintiff reported having regularly taken his Gleevec. (Id.). Nurse Dockery noted the presence of a “[v]ertical healed surgical incision on the anterior abdomen. Mild to moderate herniation of superior scar, easily reducible with no erythema or increased warmth.” (Id.). Nurse Dockery reported that she discussed the signs and symptoms of an incarcerated hernia[4] with the Plaintiff and told him to notify medical if they occurred. (Id.).

         Plaintiff testified that he had seen Dr. Brander at Highlands Oncology about the hernia prior to his incarceration. (ECF No. 32-6 at 50). She told Plaintiff it would be best not to have surgery for the hernia unless it ruptured because of the medication he was taking. (Id.). Plaintiff was told to just keep a close eye on it. (Id.).

         On August 3, 2017, Highlands Oncology provided the WCDC with the Plaintiff's records. (Id. at 3). The records indicate that Plaintiff had a gastrointestinal stromal tumor (GIST) removed on September 26, 2016. (ECF No. 32-4 at 5). There was some evidence of rupture prior to surgery which “place[d] the tumor at higher risk for recurrence.” (Id.). For this reason, it was recommended that Plaintiff be started on Gleevec once his abdominal wound was healed. (Id.). Plaintiff started on Gleevec on November 28, 2016. (Id. at 9).

         On August 8, 2017, an appointment was made for Plaintiff to be seen at Highlands Oncology on August 18th. (ECF No. 32-4 at 35). Labs and a fasting CT were to be done that morning prior to the appointment. (Id.). Plaintiff was seen on that date. (ECF No. 32-6 at 33); (ECF No. 32-6 at 53).

         At the time, Plaintiff testified he was in pain because of the hernia and Dr. Brander said she would discuss it with Dr. Petrino, Plaintiff's surgeon. (ECF No. 32-6 at 54). Plaintiff felt like he needed the surgery at this point because the hernia had become painful. (Id.). Plaintiff told Dr. Brander he was not being provided with Gleevec at the WCDC and she put him back on the medication. (Id.).

         Plaintiff testified that at some point when he was seen by Nurse Dockery, she was asking him about his insurance. (ECF No. 32-6 at 55). She told Plaintiff that his Medicaid had automatically stopped because he was in jail. (Id.). She asked if he had any other insurance coverage. (Id.). She mentioned that Gleevec was very expensive. (Id.). Plaintiff testified he told her that they should contact the ADC to see if they would pay for it. (Id.).

         On August 21, 2017, Plaintiff submitted a medical request regarding his “medical condition[s] and [his] medication.” (ECF No. 32-3 at 2). He stated he desperately needed surgery for a “hernia about 8in protruding out of my [abdominal] area and it's the size of a softball.” (Id.). He believed that if “it ruptured it could be fatal.” (Id.). Next, he stated he needed his Gleevec that had been approved by his physician at Highlands Oncology almost a week ago. (Id.). Plaintiff asserted that if he was denied medical attention “any further, ” he would be filing a § 1983 action. (Id.). The request was placed “on review.” (Id.).

         On August 24, 2017, Plaintiff submitted a grievance about not getting his medication. (ECF No. 32-3 at 4). He asked for a § 1983 form because of this refusal. (Id.). Corporal Mulvaney responded by noting that his complaint concerned a medical issue and that the “WCDC has nothing to do with the medical staff and them making medical decisions . . . . Therefore it is not WCDC that is not giving you your meds you are requesting.” (Id.). Corporal Mulvaney also provided the Plaintiff with the address of the Court Clerk. (Id.). That same day, medical staff submitted another request to Highlands Oncology for Plaintiff's medical records from the August 18th visit. (ECF No. 32-4 at 30).

         On August 26, 2017, Plaintiff submitted another grievance about his medication. (ECF No. 32-3 at 5). He indicated he had been denied the medication by Dr. Karas, then his oncologist ordered him to continue on Gleevec, and still he was not receiving the medication. (Id.). According to Plaintiff, he was told that Nurse Dockery was in the process of obtaining his records but when his family attempted to provide a “doctor release form” it was refused. (Id.). Plaintiff stated that if the current provider could not meet his medical needs, the WCDC should perhaps find a provider that would. (Id.). The grievance was reassigned to medical services that day. (Id.).

         On August 28, 2017, Plaintiff submitted a medical request asking whether it was possible for Highlands Oncology to fax the medical records to the WCDC. (ECF No. 32-3 at 6). He indicated that he would sign the necessary form. (Id.). He asserted that he had been approved for the medication by the oncologist. In response, he was told “management is working on your case. [T]hey are getting records[.]” (Id.).

         On August 29, 2017, Plaintiff submitted a grievance about not receiving his Gleevec. (ECF No. 32-3 at 7). The grievance was reassigned to medical on August 30th. (Id.). C. Dominguez responded as follows:

according to the pharmacy you gave us (Walmart NM on butterfield coach) none of your meds have been filled since [A]pril 19, 2[0]17 which is more than the 30 days that is required for scripts to be filled
I see they took your blood pressure for a couple of days and the provider then ordered you a bp ...

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