United States District Court, W.D. Arkansas, Fayetteville Division
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
Al Gene Perry, filed this action pursuant to 42 U.S.C.
§1983. He proceeds pro se and in forma
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.
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
non-emergency medical care, WCDC inmates make medical
complaints/requests via an electronic kiosk. (ECF No. 32-5 at
3 & 10). 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
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).
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).
August 1, 2017, Plaintiff submitted his first medical request
asserting that he needed his medications,
Gleevec and Lisinopril. (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.
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 with the Plaintiff and told him to notify
medical if they occurred. (Id.).
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.).
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).
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).
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.
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
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.).
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).
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.).
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
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, 217 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 ...