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Kemp v. Correct Care Solution, Inc.

United States District Court, W.D. Arkansas, Hot Springs Division

December 13, 2018



          Susan O. Hickey United States District Judge.

         This is a civil rights action filed pro se by Plaintiff, Lamar Kemp, under 42 U.S.C. § 1983. Before the Court is a Motion for Summary Judgment filed by Defendants Correct Care Solutions, LLC, Dr. Nannette Vowell, and Andrea Beasley.[1] (ECF No. 36). Plaintiff has filed a Response and Supplement to Response. (ECF Nos. 43, 63). Defendants have filed a Reply. (ECF No. 49). Plaintiff filed a sur-reply. (ECF No. 57). The Court finds this matter ripe for consideration.

         I. BACKGROUND

         Plaintiff's claims in this action arise from alleged incidents that occurred between September 20, 2013, and August 2017 while he was incarcerated in the Arkansas Department of Correction's (“ADC”) Ouachita River Correctional Unit (“ORCU”).[2] Viewed in the light most favorable to Plaintiff, the relevant facts are as follows.

         Plaintiff suffered a spinal cord injury in 1969. (ECF No. 37, ¶ 42). Over time, his physical condition has deteriorated and he suffers from weakness on his left side and foot drop. One of Plaintiff's legs is shorter than the other, he suffers from extreme pain, and has difficulty standing or walking. (ECF No. 37-4, p. 14). Plaintiff has been using a wheelchair since sometime in 2011. (ECF No. 37-2, pp. 20-22). In 2012, he was fitted for and received an ankle/foot brace and shoes. Plaintiff describes these shoes as high-top sneakers that enable him to use his brace and help him move about in his wheelchair. (ECF No. 37-5, p. 25). In 2013, Plaintiff began experiencing symptoms of kidney failure. (ECF No. 37-5, pp. 52-53). Plaintiff was transferred to the ORCU from the Tucker Unit of the ADC on September 20, 2013, in part so that the medical team could monitor his kidneys to see if he needed dialysis.[3] Prior to being transferred to the ORCU, Plaintiff used his wheelchair, brace, and wore his shoes regularly to assist him with mobility. When Plaintiff was transferred to the ORCU, his high-top shoes were not sent with him.[4]

         Sometime in November or December of 2013, Dr. Nanette Vowell called Plaintiff to the day clinic and ordered Plaintiff to get out of his wheelchair and walk. Plaintiff stood up but refused to try and walk on the cement floor without his high-top shoes. As a result, the wheelchair was taken from him. (ECF No. 1, p. 6). Dr. Vowell informed Plaintiff that he did not need tennis shoes if he was going to primarily use the wheelchair. Id. Plaintiff was then sent to lockup without his wheelchair. In December of 2013, Plaintiff wrote to the Spinal Cord Commission explaining that his wheelchair had been taken from him by Dr. Vowell. In February of 2014, Plaintiff was issued a wheelchair by the Spinal Cord Commission.

         Plaintiff's medical records indicate he was prescribed 50 milligrams of Tramadol and 300 milligrams of Gabapentin for pain beginning in 2014. (ECF No. 37-4, p. 14). Plaintiff took each of these medications three times a day until sometime in 2017. (ECF No. 37-5, pp. 46-47). At some point, Dr. Vowell discontinued Plaintiff's Tramadol and reduced his dosage of Gabapentin. The medical records are not clear as to exactly when or why Dr. Vowell made a change to Plaintiff's pain medication. Plaintiff is no longer taking any medication for pain even though he has a prescription for Gabapentin because he claims the decreased dosage does not work. (ECF No. 37-5, p. 55).

         Sometime in April 2017, Plaintiff met with Andrea Beasley about starting physical therapy, so he could work on his leg strength and reevaluate his need for shoes. Beasley measured Plaintiff for shoes and told him he would begin physical therapy classes on April 9, 2017. Despite Beasley's statements, Plaintiff was never permitted to participate in physical therapy and was not issued high-top shoes. (ECF No. 37-5, pp. 98-99). Beasley is not a doctor and never provided medical care to Plaintiff. Id. at 98. Plaintiff states that Beasley “gripes at me at everything.” Id. at 95.

         Between September 20, 2013, and August 25, 2017, Plaintiff filed the following fourteen formal medical grievances:

(1) OR-14-01023 requesting his “size 8 ½ high top Reebok tennis shoes prescribed by doctors” be ordered. Plaintiff states he has braces made for him by Felix Limb and Brace and he can't use his leg brace with the shoes he was issued at the ORCU. (ECF No. 37-2, pp. 1-3).
(2) OR-15-00110 claiming his “14th Amendment Rights were being violated” and stating he needed help controlling his high blood pressure. (ECF No. 37-2, pp. 4-6).
(3) OR-15-00659 concerning a request for a restriction to keep Plaintiff from serving punitive time in isolation due to the heat. Plaintiff states his nerves are bad from his spinal injury and the heat aggravated his sinuses. (ECF No. 37-2, pp. 7-9).
(4) OR-15-00660 regarding a nurse “angrily” placing a bandage on a wound and rushing him out of the infirmary. (ECF No. 37-2, pp. 10-12).
(5) OR-15-00708 regarding health complications from exposure to heat. (ECF No. 37-2, pp. 13-16).
(6) OR-15-00878 requesting a “heat script.” (ECF No. 37-2, pp. 17-19).
(7) OR-16-01099 submitted June 25, 2016, stating “with footwear I'll no longer ambulate by wheelchair, look I use my foots everywhere I go. No. leg rest.” Plaintiff again requests medical footwear (tennis shoes) previously prescribed. On August 23, 2016, a response to the grievance was submitted which states “[t]he provider determines your medical needs. You have been in a wheelchair since 2011 due to left sided weakness and back issues. The provider does not provide medical footwear to patients in wheelchairs that are long term.” (ECF No. 37-2, pp. 20-22).
(8) OR-16-01125 claiming Dr. Vowell denied Plaintiff medical shoes and the opportunity to see Dr. Felix, a specialist. Plaintiff stated he has spinal cord damage, can partially walk and is working to be able to walk. He stated he has had tennis shoes since 1992 prescribed by an ADC doctor and “Dr. N. Vowell states I don't walk, I don't need shoes, yet [I'm] not restricted to this wheelchair for it has no leg handles so [I'm] forced to use my [feet] everyday. I [was] issued shoes on every Unit (Diagnostic, Work Complex, JCJ-CF, Cummins, Varner, Brickeys, Dermott, Tucker Maximum Security, all in Medical Jacket or Computer. Please view Medical Jacket and instruct medical [personnel] to issue me either self sole or tennis shoes[.]” (ECF No. 37-2, pp. 22-25).
(9) OR-16-01588 grievance relating to change/termination of pain medications. (ECF No. 37-2, pp. 26- 28).
(10) OR-17-00190 complaining that Dr. Vowell acted with deliberate indifference to Plaintiff's medical needs by failing to treat and diagnose his pain and refusing to allow him to see a foot specialist. (ECF No. 37-2, pp. 29-31).
(11) OR-17-00510 stating that Nurse Robinson intercepted and returned 95% of Plaintiff's requests, no matter to whom they are addressed. (ECF No. 37-2, pp. 32-34).
(12) OR-17-00511 regarding denial of footwear and the weakness of his feet. (ECF No. 37-2, pp. 35-37).
(13) OR-17-00512 regarding pain and suffering Plaintiff was experiencing while waiting to receive proper medical care at ORCU and complaining he had been denied medical footwear. (ECF No. 37-2, pp. 38-40).
(14) OR-17-00727 claiming Dr. Vowell took his wheelchair from him, denied his numerous medical requests, took him off his pain medication, and refused to provide blood pressure medicine. (ECF No. 37-2, pp. 41-44).

         Plaintiff filed his Complaint on August 25, 2017, against Correct Care Solutions, LLC (“CCS”), Dr. Nannette Vowell, Andrea Beasley, Gwendolyn Hart, Rory Griffin and Wendy Kelly. (ECF No. 1). Plaintiff alleges Defendants denied him medical care, violated his rights under the Americans With Disabilities Act, and retaliated against him for filing medical grievances. Plaintiff also asserts a claim for medical malpractice under state law.[5] Id. at p. 15. Specifically, Plaintiff alleges that Defendant Vowell denied him medical care when she took his wheelchair from him in late 2013, refused to issue him previously prescribed medical shoes, [6] reduced his pain medications in 2017, and retaliated against him for contacting the Spinal Cord Commission and filing medical grievances against her. Plaintiff alleges Defendant Beasley told him he would be starting physical therapy which never happened and she “gripes” at him. Plaintiff sues Defendants in their official and individual capacities and seeks compensatory and punitive damages. Id. at p. 14.

         On May 14, 2018, Defendants CCS, Vowell, and Beasley filed the instant motion. Defendants argue they are entitled to summary judgment because: (1) Plaintiff's claims arising prior to August 25, 2014, are barred by the statute of limitations; (2) Plaintiff failed to exhaust his administrative remedies; (3) Defendants were not deliberately indifferent to Plaintiff's medical needs; and (4) there is no basis for official capacity liability. (ECF No. 36). Plaintiff filed his Response to the motion for summary judgment arguing there are genuine issues of material fact regarding Plaintiff's claims for denial of medical care and that Defendants failed to address Plaintiff's claims for retaliation and medical malpractice. (ECF No. 43). Defendants filed a Reply arguing that Plaintiff's claim for retaliation should be dismissed as a matter of law and Plaintiff's claim for malpractice should be dismissed because Plaintiff has failed to provide any expert testimony regarding the applicable standard of care and the causal link to damages. (ECF No. 49).


         Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, 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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “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 Comm. 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. ...

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