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Lewis v. Holloway

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

December 11, 2018

DESTIN ALLEN LEWIS PLAINTIFF
v.
SHERIFF HOLLOWAY, Benton County, Arkansas; LIEUTENANT HOLT; EMILY HOFER, Dietician; NURSE CARLOS RAMOS, Employed by Southern Health Partners; and CATERING BY MARLINS, d/b/a CBM Managed Services DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

         Plaintiff 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 ("ADC").

         Plaintiff 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.

         The 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. 65).

         In 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.

         I. BACKGROUND

         On 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).

         BCDC 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 below.

         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." Nat'l Bank of Commerce v. Dow Chem. 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." 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 (2007).

         III. DISCUSSION

         Section 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).

         A. First Claim: Denial of Medical Care

         1. Relevant Facts

         Nurse 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, p. 1.

         On 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.

         On 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).

         On June 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[1] was filthy and unsanitary to drink from. Id.

         Plaintiff 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. Id.

         On July 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 id.

         On July 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.

         On July 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.

         On July 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.

         On July 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.

         On July 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).

         On July 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).

         According 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).

         The 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 [SHP]." Id.

         On July 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 ...


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