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Ferris v. Hall

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

February 6, 2019

JUSTIN STEPHEN FERRIS PLAINTIFF
v.
NURSE SHAWNA HALL, Southern Health Partners DEFENDANT

          OPINION AND ORDER

          P. K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis.

         The claims asserted in this case arose when Plaintiff was incarcerated in the Benton County Detention Center (“BCDC”). Specifically, Plaintiff contends his constitutional rights were violated when: (1) he was given the wrong medication by Nurse Hall; and (2) he was denied medical attention when the medication made him physically ill. Plaintiff has sued Nurse Hall in both her individual and official capacities.

         On September 13, 2018, Nurse Hall filed a Motion for Summary Judgment (ECF No. 17). The following day, an Order (ECF No. 20) was entered directing Plaintiff to file a response to the Motion for Summary Judgment by October 5, 2018. Plaintiff was advised that failure to comply with the Court's Orders (ECF No. 20) would result in: (a) all of the facts set forth by the Defendant in the summary judgment papers being deemed admitted by Plaintiff, pursuant to Rule 56.1(c) of the Local Rules for the Eastern and Western Districts of Arkansas; and/or (b) shall subject this case to dismissal, without prejudice, pursuant to Local Rule 5.5(c)(2).

         Although the local rules allow the Court to deem these facts as admitted when a plaintiff does not file a response specifically disputing those facts, the Eighth Circuit has stated:

[a] plaintiff's verified complaint is the equivalent of an affidavit for purposes of summary judgment, and a complaint signed and dated as true under penalty of perjury satisfies the requirement of a verified complaint, 28 U.S.C. § 1746. Although a party may not generally rest on his pleadings to create a fact issue sufficient to survive summary judgment, the facts alleged in a verified complaint need not be repeated in a responsive affidavit in order to survive summary judgment motion.

Roberson v. Hayti Police Dep't., 241 F.3d 992, 994-995 (8th Cir. 2001). Therefore, the Court will “piece[] together [Plaintiff' s] version of the facts from the verified complaint. . . .” McClanahan v. Young, No. 4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5, 2016). Those portions of the Defendant's statement of material facts that do not conflict with [Plaintiff's verified complaint] are deemed admitted.” (Id.).

         I. BACKGROUND

         Plaintiff was booked into the BCDC on January 8, 2018. (ECF No. 19-1 at 1). Southern Health Partners, Inc., (“SHP”) was under contract with Benton County to provide healthcare services to inmates housed at the BCDC. (Id.). At all times relevant to this case, Nurse Hall was an employee of SHP. (Id.).

         On January 14, 2018, Plaintiff submitted a kiosk request to see the dentist and the doctor to get his medications. (ECF No. 19-2 at 2). On January 15, 2018, he was placed on the dentist list. (Id. at 4).

         On January 18, 2018, Plaintiff underwent a medical screening where he indicated he had broken teeth that were causing him pain. (ECF No. 19-3 at 5). On January 24, 2018, Plaintiff was seen by the dentist, diagnosed with chronic abscesses, and multiple teeth were extracted. (ECF No. 19-2 at 7). Plaintiff was initially prescribed Clindamycin 800 mg, twice a day, and Motrin 800 mg, twice a day. (ECF No. 19-2 at 9). The order was revised that same day to Clindamycin 150 mg, twice a day, and Ibuprofen 800 mg, twice a day. (Id.). According to the affidavit of Nurse Hall, on the evening of January 24, 2018, she gave Plaintiff Clindamycin 150 mg. and Ibuprofen 800 mg as prescribed. (ECF No. 19-1 at 2). The medication administration record also indicates these were the medications given Plaintiff on January 24, 2018. (ECF No. 19-2 at 10).

         According to the allegations of the Complaint (ECF No. 1), during the evening medication pass on January 24, 2018, Nurse Hall[1] mistakenly gave the Plaintiff Jeffrey E. Fenwick's medications instead of his own. Plaintiff asserts that he became physically ill but was denied medical attention and was not told what medication he had been given. However, Plaintiff indicates he was given a benzodiazepine “and lost [his] sobriety date” as a result.

         On January 25, 2018, Plaintiff submitted a kiosk entry stating: “last night at med pass I was given a bunch of pills to take by the nurse that were not ordered for me to take which I was not aware of until this morning I want to know what I took thank you.” (ECF No. 19-1 at 2); (ECF No. 19-2 at 2). Nurse Heather Trimmer responded that the medications were from the dentist. (Id.). Nurse Trimmer asked if Plaintiff would like to stop the medications. (Id.). Plaintiff indicated he would like to continue them. (Id.).

         In a note submitted later that day, Plaintiff stated: “I just want to know what I was given last night at med pass because that was my original question. I feel like y'all gave me the wrong meds and now you are trying to cover your tracks. I will take legal action if I must.” (ECF No. 19-2 at 2). On February 4, 2018, Plaintiff submitted a kiosk entry that said: “I'm filing out a 1983 form due ...


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