United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
Destin Allen Lewis brings this civil rights action pursuant
to 42 U.S.C. § 1983. He proceeds pro se and
in forma pauperis and contends that his
constitutional rights were violated while he was incarcerated
in the Benton County Detention Center ("BCDC").
Plaintiff filed this action while he was still incarcerated
in the BCDC, but he has since been transferred to the Delta
Regional Unit of the Arkansas Department of Correction
maintains that his constitutional rights were violated in the
following ways: (1) he was denied adequate medical care; (2)
he was recklessly exposed to known health risks; (3) he was
denied access to law library materials; and (4) he was denied
an adequate diet. He has named as Defendants Sheriff Holloway
and Lieutenant Holt of the BCDC; Catering by Marlins
("CBM"), the contract food provider for the BCDC;
one of CBM's dieticians, Emily Hofer; and Nurse Carlos
Ramos, who is employed by Southern Health Partners
("SHP"), the contract medical care provider for the
BCDC. Plaintiff has sued all Defendants in both their
individual and official capacities.
case is before the Court on the Motion for Summary Judgment
(Doc. 50) filed by Separate Defendant Nurse Carlos Ramos, the
Motion for Summary Judgment (Doc. 54) filed by Separate
Defendants CBM and Emily Hofer, and the Motion for Summary
Judgment (Doc. 57) filed by Separate Defendants Sheriff
Holloway and Lieutenant Holt. Plaintiff has filed a joint
response (Docs. 63 & 64) to the pending Motions. Only
Separate Defendants CBM and Emily Hofer filed a Reply (Doc.
reviewing Plaintiff's response to the Motions, it is
clear he has not addressed the inadequate diet claim made
against CBM and Emily Hofer. He also has left CBM and Emily
Hofer out of the style of the case in his response.
March 30, 2017, Plaintiff pleaded guilty to various state
criminal offenses. (Doc. 59-2, p. 5). He was booked into the
BCDC that same day. (Doc. 52-1, p. 1). His sentencing order
was entered on April 28, 2017. (Doc. 59-2, pp. 5-9).
Plaintiff remained incarcerated at the BCDC until he was
transferred to the ADC on July 27, 2017. (Doc. 52-1, p. 2;
Doc. 59-2, p. 10).
inmates have access to an electronic kiosk to communicate
with Sheriff's department staff and medical staff.
Inmates must submit general requests, nonemergency medical
requests, and grievances through the kiosk. The facts
relevant to each of Plaintiff's claims will be set forth
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." Nat'l
Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607
(8th Cir. 1999).
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." Nat'l 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
1983 does not create substantive rights. Baker v.
McCollan, 443 U.S. 137, 145 n.3 (1979). Instead, it
provides remedies for deprivations of rights established by
the Constitution or the laws of the United States.
Id. Two elements are required to establish a claim
under § 1983. These elements are: (1) the deprivation of
a right secured by the Constitution or laws of the United
States; and (2) that the deprivation was committed
"under color" of state law. Lugar v.
Edmondson, 457 U.S. 922, 931 (1982).
First Claim: Denial of Medical Care
Ramos, a licensed practical nurse, was at all times relevant
to the facts in the Complaint an employee of SHP, the
provider of healthcare services to inmates at the BCDC.
Plaintiff completed a medical questionnaire on March 30,
2017, as part of the booking process, and he did not identify
any medical conditions at that time. See Doc. 59-4,
April 7, 2017, Plaintiff submitted a request asking why the
Tuberculosis ("TB") filter was not working and why
he had not "received a TB shot yet?" (Doc. 52-3, p.
1). Plaintiff was medically evaluated on April 10, 2017, but
he did not present any current medical complaints. He was
administered a tuberculin skin test that same day, and the
test was negative. See Doc. 52-2, p. 15.
April 22, 2017, Plaintiff submitted a grievance to jail staff
in which he noted that there were inmates in the pod who had
been there for months and had not received a TB test.
See Doc. 52-3, p. 2. He also noted the
"filter" was inoperable. Id. During
Plaintiffs deposition in this case, he was asked whether
anyone in his unit was ever identified as having
tuberculosis, and he answered, "As far as I know,
nope." (Doc. 59-6, p. 30). Nurse Ramos also confirmed in
his responses to interrogatories that only one inmate was
diagnosed with active tuberculosis at the BCDC from
"2016 - June 2017." (Doc. 63, p. 23).
17, 2017, Plaintiff submitted a medical request stating that
he believed he had been suffering from dehydration for the
past couple of months. See Doc. 59-3, p. 19). He
noted that he and the other inmates were locked out of their
cells for seven to nine hours and only had sixteen ounces of
liquid with each meal. Id. He noted there was no
water fixture in the day room, and the wash basin in the
public restroom was filthy and unsanitary to drink from.
was again evaluated by medical staff at the jail on June 19,
2017. See Doc. 59-4, p. 5. Medical reports note that
Plaintiff did not want to drink from the sink and wanted to
have a cup in the day room. Id. at 6. Plaintiff was
educated on the importance of adequate water intake and the
signs of dehydration. Id. Plaintiff was then
instructed to report any decrease in his urine output.
2, 2017, Plaintiff was seen by medical staff for left ear
pain. (Doc. 52-2, p. 8). Staff noted that his left ear
opening was swollen, and the ear canal was dark red.
Id. His eardrum was "pearly white" and
intact. Id. He was prescribed Amoxil, an antibiotic,
and Ibuprofen, a pain reducer, twice a day for seven days.
Id. at 9. On July 3, 2017, Plaintiff asked for
authorization for a "lay-in" in his cell until the
ear infection was cured. (Doc. 52-3, p. 4). That same day, he
asked for a higher dose of Ibuprofen because the pain made
him very uncomfortable and he could not sleep. Id.
Medical staff granted his request for more Ibuprofen. See
5, 2017, Plaintiff complained that he thought he had a fever
and believed it was contagious. (Doc. 52-3, p. 6). He
submitted a second request for a lay-in until this infection
was gone. Id. In response, he was told that unless
he had a fever, he could not have bed rest. Id. He
submitted a third request stating that he did not receive his
antibiotic that day because the nurse said they were out of
it. Id. In response, a note was made that Plaintiff
was given his meds. Id.
6, 2017, Plaintiff submitted another medical request stating
the infection was now moving to his right ear; he had
"searing" pain down to his jaw; he believed he had
a fever; and it was "torture" being out in the day
room all day. Id. at 5. He asked if he could be
moved to the medical pod. Id. In response, Plaintiff
was told the medical pod was "reserved for severe
acute/chronic conditions only." Id.
7, 2017, Plaintiff submitted a request stating that he had
spoken with the nurse the previous night about receiving a
lay-in, that he had a fever of 99, and that the nurse had
ultimately authorized a one-day lay-in. Id. at 7. In
response, Plaintiff was informed that the nurse could not
justify bed rest without a fever. Id. Plaintiff
submitted another request stating he wanted to make sure he
was placed on doctor call. Id. In response, he was
told he had been on the list previously, but he had refused
sick call. Id.; cf. Doc. 52-2, p. 10 (noting that he
refused sick call because he believed he was getting better).
That same day, Plaintiff submitted a grievance asking what
the policy was for being granted a lay-in. (Doc. 52-3, p. 7).
He asked why he could not get a lay-in with a painful ear
infection, regardless of whether he had a fever. In response,
medical staff wrote that an "[i]nfection does not meet
criteria for bed for 'lay-in.'" Id.
10, 2017, Plaintiff submitted a grievance stating that an
inmate had been left in pod E-104 for three days (7/7-7/9)
with a staphylococcus bacteria ("staph") infection
on his knee. (Doc. 52-3, p. 8). Plaintiff claimed the inmate
was seen by the doctor on July 7th [a Friday] but not removed
from the pod until July 10th [a Monday]. Id.
Plaintiff noted it was the second time an inmate with staph
had been left in the pod, and Plaintiff was now afraid to use
cell 147 as a restroom because he did not want to get
infected with staph. Id. In response, he was told
that medical staff makes all medical decisions. Id.
12, 2017, Plaintiff submitted a medical request stating that
he was still suffering from the ear infection after taking
antibiotics for seven days. On July 13, 2017, Plaintiff was
again prescribed Amoxil for the ear infection, this time for
another ten days, and given Ibuprofen twice a day for seven
days. (Doc. 52-2, pp. 6, 11-12; Doc. 52-3, p. 3).
18, 2017, Plaintiff submitted a medical request stating he
was quite certain that he had a staph infection on his upper
left thigh. (Doc. 59-2, p. 22). He indicated he was feeling
dizzy and hot. Plaintiff was placed on the nurse's sick
call list. Id. Then, on July 19, 2017, Plaintiff
reported to medical staff that he had an abscess on his left
upper thigh that he believed was a spider bite. He was given
Benadryl twice a day for three days, and the wound was
cleaned with Hibiclens and treated daily. (Doc. 52-2, pp. 6,
13). On July 20, 2017, Plaintiff reported to nursing staff
that the abscess could be "something as simple as an
ingrown hair or STAFF [sic]." (Doc. 52-3, p. 14).
to Nurse Ramos, inmates who have known staph infections are
placed in medical isolation. (Doc. 63, pp. 23-24). Nurse
Ramos indicated that "staph infections are generally
treated with antibiotics." Id. at 24. Nurse
Ramos maintains that he did not have the authority to
segregate inmates. Instead, the segregation of inmates was
coordinated between SHP's medical team administrator and
the jail's administration team. (Doc. 52-1, p. 2).
BCDC's health policies provide that "[a]ny detainee
identified as having a communicable disease shall be
segregated as directed by medical staff." (Doc. 63, p.
49). In answering interrogatories, Sheriff Holloway stated
that there was an area in B pod that was "equipped with
negative air pressure in the cells to filter fresh air in and
to limit the spread of the disease(s)." Id. at
52. Further, Sheriff Holloway states that "[protocols
and medical policies are not adopted, supervised, or enforced
by Benton County." Id. Instead, "Benton
County relies on the professional medical judgment of the
medical staff which is provided pursuant to a contract with
22, 2017, Plaintiff completed his prescription for the
antibiotic Amoxil that he had been given for his ear
infection, and he was then prescribed the antibiotic Bactrim
for ten days. (Doc. 52-2, p. 7). Medical notes from July 25,
2017, indicate that Plaintiff refused wound care that day.
Id. at 14. Then, on July 26, 2017, Plaintiff
submitted a medical request about having a bruised tailbone.
(Doc. 59-3, p. 24). He indicated that he usually sat on two
towels to lessen the pain. However, he said he was now being
told he had to have approval from medical staff to sit on
towels. Id. On the following day, July 27, 2017, a
medical summary prepared by C. Russell indicated that
Plaintiff was cleared for transport to the ADC. (Doc. 63, p.
21). A note in the file ...