United States District Court, W.D. Arkansas, Hot Springs Division
ORDER
ROBERT
T. DAWSON, SENIOR U.S. DISTRICT JUDGE
Now
before the Court are Plaintiff's Motion to Reconsider
(ECF No. 147) the Order of United States Magistrate Judge
Barry A. Bryant denying Plaintiff's Motion for
Clarification; Plaintiff's Motion to Reconsider (ECF No.
148) the Magistrate's Order granting in part and denying
in part Plaintiff's Motion to Compel; and Plaintiff's
Motion to Reconsider (ECF No. 149) the Magistrate's Order
denying Plaintiff's Motion for Sanctions. The Court finds
the matters ripe for consideration.
I.
BACKGROUND
This
case has a very long, detailed, and complex procedural
history. Because it is important to understand what brought
us to this juncture, the Court will undertake to summarize
case events from the beginning. Plaintiff, Christopher Eugene
De Rossitte, an indigent litigant representing himself, is
presently an inmate of the Special Needs Unit at Ouachita
River Correctional Unit, a prison facility run by the
Arkansas Department of Correction (ADC). Plaintiff filed a
133 (one hundred, thirty-three) page Complaint setting out in
narrative form allegations covering a period of more than
three years against thirteen named Defendants (Compl., ECF
No. 1). Plaintiff alleges constant, years-long suffering from
conditions and ailments that were ignored or ineffectively
treated by prison medical clinic staff despite his tireless
and persistent complaints. Plaintiff alleges retaliatory
action has been taken against him for complaining and filing
grievances about his situation; and that persons in power
with knowledge of his suffering failed to act. Upon an
initial review of the Complaint, [1] Plaintiff was ordered to
file an Amended Complaint using the court approved §1983
complaint form to clearly state “his claims against
each Defendant with factual specificity” and indicate
what claim he was making against each defendant. (Order 1,
May 5, 2017, ECF No. 7.) Plaintiff was provided a Prisoner
Litigation Guide and the court-approved complaint form.
Thereafter,
Plaintiff filed a 170-page Amended Complaint (Am. Compl.,
June 12, 2017, ECF No. 11) seeking damages for denial of
medical care in violation of the Eighth Amendment;
retaliation in violation of the First Amendment; denial of
equal access under the Americans with Disabilities Act;
medical malpractice and negligence; and violation of Health
Insurance Portability and Accountability Act. Because he did
not amend his complaint using the “court-approved
complaint form to clearly state how each named Defendant
violated his federal constitutional rights, ” Plaintiff
was directed to file a Second Amended Complaint using the
approved form and limiting the complaint to a total of ten
(10) pages. (Order 1, Aug. 21, 2017, ECF No. 13.)
Plaintiff's
138-page Second Amended Complaint (including 127 pages of
attached grievances), was filed on or about September 5, 2017
alleging four claims for relief against nine named
defendants: denial of medical care in violation of the Eighth
Amendment; retaliation in violation of the First Amendment;
denial of medical care in violation of the Eighth Amendment
and the Americans with Disabilities Act; and medical injury
under Arkansas state law. The named defendants are Correct
Care Solutions, Inc. (CCS), Nannette Vowell, Melissa L.
Gifford, Andrea Beasley, Gwendolyn Hart, Richard Morgan, Rory
Griffin, Wendy Kelly, and Nichole A. Robinson. (Second Am.
Compl., Sept. 5, 2017, ECF No. 14.) Specifically, Plaintiff
alleges:
The plaintiff, for over two and half years, has and continues
to suffer from a frequently debilitating and always painful
condition (likely a bacterial infection MRSA). Symptoms
include many NEVER addressed by ANY CCS staff person despite
dozens and dozens of sick calls, requests and grievances:
constant pain in tissues of face and head; Frequent, usually
daily headaches, mild to severe; excessive thirst; difficulty
swallowing; recurrent boils and bumps on face; recurrent
swelling eyelids; earaches; muscle weakness and pain;
shortness of breath, persistent and recurrent rashes; urine
irregularities; poor blood work labs; bouts of nausea. And
also includes a few INEFFECTIVELY addressed symptoms:
constant eye pain and irritation; build-up of irritants under
eyelids resulting in sleep deprivation; blurred, cloudy and
dimmed vision; constant sinus trouble; recurring cough;
recurring sore throat; edema on arms. Possible long-term
health issues and permanent vision damage may already have
resulted.
(Second
Am. Compl. 4, 8.) Upon review, the Court entered an order
directing service of the Second Amended Complaint (Order
Directing Service, Oct. 5, 2017, ECF No. 16).
Defendant
Wendy Kelley is Director of the Arkansas Department of
Correction, and Defendant Rory Griffin is Deputy Director.
Defendants Griffin and Kelley (the ADC Defendants) filed a
Motion to Dismiss on grounds that Plaintiff's § 1983
claim for money damages against state officials acting in
their official capacities is barred by the Eleventh
Amendment. In addition, Defendants asserted Plaintiff did not
request “precise” injunctive relief from them in
their official capacities; Defendant Griffin is entitled to
qualified immunity as to the individual capacity claims
against him; and Plaintiff failed to state a claim for relief
under the ADA. (Defs' Mot. to Dismiss, Oct. 30, 2017, ECF
No. 20.)
On
November 13, 2017, Plaintiff filed a pleading captioned
“Motion for Declaratory Relief” wherein he made
additional allegations against various Defendants and stated
“that ONLY due to the Court imposed restriction of
length, and for no other reason, Plaintiff was unable to
include under §VII Relief, of that form, nor in the
three supplemental pages, the perspective [sic] Declaratory
Relief the Plaintiff seeks.” By his motion, Plaintiff
sought declaratory judgment requiring the ADC be held
accountable for oversight of medical services. Plaintiff also
sought declaratory judgment finding that ADC Defendants
Kelley and Griffin acted with deliberate indifference to the
violation of Plaintiff's 8th Amendment rights;
that CCS is contractually obligated and “not at liberty
to disregard, refuse to diagnose or decline to treat”
Plaintiff's afflictions; that the refusal of
Defendant's Vowell and Gifford to diagnose and treat
Plaintiff's symptoms over a two year period despite
numerous and persistent requests is a continuing violation of
Plaintiff's 8th Amendment rights; that
Defendants Vowell and Gifford violated his
1stAmendment rights by “their many
retaliatory actions and efforts attempting to punish and
silence the Plaintiff for speaking out”; that the
actions of Defendants Vowell and Gifford constitute
“medical injury, as malpractice and neglect, under
Arkansas state law;” that Plaintiff's hearing aid
is recognized under the ADA as disability support device
necessary for Plaintiff's daily activities and is not a
luxury or privilege to be arbitrarily withheld; that
Plaintiff is entitled to reasonable access to his medical
records including a wheelchair accessible area with an open
surface upon which Plaintiff may work; that Defendant's
documents may not be withheld arbitrarily; and that Plaintiff
shall not face retaliatory action or negative treatment from
Defendants as a result of this legal action. (Pl.'s Mot.
Declaratory Relief 2-4, Nov. 13, 2017, ECF No. 26.)
Upon
review, the Magistrate determined it was appropriate to
refile the Motion for Declaratory Relief as a Supplement to
Plaintiff's Second Amended Complaint. (Pl.'s Suppl.
to Second Am. Compl, Nov. 14, 2017, ECF No. 28.) All named
Defendants responded to the Supplement. (ADC Defs'
Response to Pl.'s Suppl. Second Am. Compl, Nov. 27, 2017,
ECF No. 31; Defs' Answer, Nov. 28, 2017, ECF No. 32.)
Plaintiff
thereafter filed a Response to the ADC Defendants' Motion
to Dismiss (Pl.'s Resp. to Defs' Mot. to Dismiss,
Dec. 7, 2017, ECF No. 36); the ADC Defendants replied
(Defs.' Reply to Resp. to Mot., Dec. 14, 2017, ECF No.
38); and Plaintiff filed a sur-reply (Pl.'s Resp., Jan.
23, 2018, ECF No. 44). Upon review by United States District
Judge Susan O. Hickey, the Motion to Dismiss was granted in
part and denied in part. Plaintiff's official capacity
claims against the ADC Defendants for denial of medical care
and the individual and official capacity claims against
separate Defendant Griffin based on the ADA were dismissed
with prejudice. Plaintiff's individual capacity claim
against separate Defendant Griffin for denial of medical care
was not dismissed. Lastly, Plaintiff's request for
declaratory relief against the ADC Defendants was denied on
grounds that the requested relief was improper. (Order, April
19, 2018, ECF No. 67.)
Plaintiff
filed a Motion for Preliminary Injunction asking the Court to
“immediately remedy the undue suffering the Plaintiff
continues to face in direct violation of the Eighth
Amendment….” (Pl.'s Mot. Prelim. Inj. 1,
Dec. 22, 2017, ECF No. 39.) In the Motion for Preliminary
Injunction, Plaintiff requests that he be tested for MRSA and
be given an appropriate course of treatment; that Defendants
Vowell and Gifford be prohibited from making any medical
decisions, recommendations or examinations regarding
Plaintiff; and that Plaintiff's medical needs be
addressed by other available day clinic staff (Mot. Prelim.
Inj. 7-8, ECF No. 39). Plaintiff also requests to
“arrange to have a correctional officer (preferably one
known to the Plaintiff to be of exceptional trustworthiness
and good character . . .) to be present at all times during
the collection, packaging and transfer of samples,
maintaining observation of those to be sent to a
lab…” (Id. at 10, ECF No. 39).
Defendants filed Responses in Opposition to the motion, (ADC
Defs.' Resp. Opp'n Mot. Prelim. Inj., Jan. 5, 2019,
ECF No. 40; Resp. Opp'n Mot. Prelim. Inj., Jan. 5, 2019,
ECF No. 42), and Plaintiff filed a Reply to the Responses
(ECF No. 45). On February 9, 2018, the Court mistakenly
ordered the Clerk to re-file the Supplement (ECF No. 28) as a
Motion for Declaratory Relief. It was so filed (ECF No. 48),
and Defendants filed Responses in Opposition (ADC Defs'
Response to Pl.'s Mot. for Declaratory Relief, Feb. 21,
2018, ECF No. 50; Response to Pl.'s Mot. for Declaratory
Relief, Feb. 21, 2018, ECF No. 51). On March 26, 2018, the
Motion for Declaratory Relief (ECF No. 48) was denied as moot
and the Order refiling the Supplement as a Motion for
Declaratory Relief was withdrawn. (See Order, March
26, 2018, ECF No. 56.) The same day, the Magistrate issued a
Report and Recommendation (ECF No. 49) recommending the
Motion for Preliminary Injunction (ECF No. 39) be denied on
the grounds that it was unlikely Plaintiff would be
successful on the merits of his claims; that Plaintiff failed
to demonstrate irreparable harm; the balance of equities
favored the Defendants; and the issuance of an injunction
would not serve any public interest. (Report, Feb. 9, 2019,
ECF No. 49.)
Plaintiff
filed timely written objections to the Magistrate's
report and recommendation denying the preliminary injunction
and conceded that, “AS WRITTEN [the] request for a
preliminary injunction should be rejected on the grounds that
it is excessively complex, makes multiple assumptions and
would require an unnecessary level of Court
intervention.” Plaintiff then goes on to state his
specific objections to the report. First, Plaintiff does not
just “disagree” with how the Defendants are
providing care, Plaintiff asserts that a “majority of
his symptoms have never been treated, diagnosed, discussed or
in any way addressed by CCS medical staff.” The few
treatments that have been offered were largely ineffective.
(Pl.'s Resp. to Report 1, Feb. 23, 2018, ECF No. 52)
Second, Plaintiff objects to the finding his “symptoms
do not appear to be the type of serious medical conditions
which place him in danger of immediate harm.” Plaintiff
maintains that “further vision loss must be considered
a very real possibility.” Plaintiff believes his
symptoms may all be explained by “a bacterial agent
such as MRSA” which can be potentially life
threatening. Plaintiff claims the medical staff deliberately
ignore his symptoms and complaints and refuse any diagnostic
test to rule out MRSA. Plaintiff also limits the requested
injunctive relief to include ordering medical personnel to
diagnose and treat symptoms not previously addressed; provide
effective treatment for his eyes; and that Defendants Vowell
and Gifford be “prohibited, for the duration of this
case, from treating the Plaintiff based on prior acts of
retaliation and a clear conflict of interest.”
Id. After a de novo review, United States District
Judge Susan O. Hickey, adopted the Report and Recommendation
in full, and Plaintiff's Motion for Preliminary
Injunction was denied. (Order, April 20, 2018, ECF No. 72.)
Judge Hickey advised Plaintiff if he “wishes for the
Court to consider more limited injunctive relief he may so
move, but the Court will not evaluate such requests when made
in responsive pleadings.” (Id. at 2)
In
addition to his requests for declaratory and injunctive
relief, Plaintiff also sought court intervention in discovery
issues. Plaintiff filed a Motion Requesting Depositions Upon
Written Questions (March 12, 2018, ECF No. 53) requesting to
depose Thomas N. Daniel (CCS Day Clinic Physician); Defendant
Gwendolyn Hart (former CCS Nurse/physician's assistant);
Ms. Cannon (CCS physician's assistant); Defendant
Nannette Vowell (CCS physician); and Defendant Melissa
Gifford (CCS nurse). Defendants filed a Response in
Opposition to the Motion. (Defs' Resp. Mot. Requesting
Dep., March 26, 2018, Doc. No. 57.) The Motion was denied on
grounds that Plaintiff failed to indicate his willingness or
ability to pay the expenses associated with the requested
discovery. (Order, March 27, 2018, ECF No. 58.)
Plaintiff
also filed a Motion for an Order to Compel Production of
Documents from Defendant Correct Care Solutions, LLC (Mot.
Compel CCS, March 16, 2018, ECF No. 54) seeking an order
demanding production of all documents that had been properly
requested and that Defendant CCS failed to provide. Plaintiff
filed an Addendum to the Motion to Compel to alert the Court
to the fact that the Motion may be missing page three, and
Plaintiff attached to the addendum a new page three to fill
in the gap. (Pl.'s Addendum to Mot. Compel CCS, March 26,
2018, Doc. No. 55.) Defendant filed a Response to
Plaintiff's Motion to Compel CCS (ECF No. 61) asserting
that Plaintiff had failed to attempt to confer with Defense
Counsel prior to filing the Motion as required by Local Rule
7.2(g). In addition, Defendants' attorney advised the
Court that he had written “a letter to the Ouachita
River Unit medical staff on March 2, 2018, notifying them of
Plaintiff's pending litigation and requesting that
Plaintiff be able to regularly review his records” and
specifically requesting that Plaintiff be provided access to
printed copies of his electronic medical records. (Defs'
Resp. Mot. Compel CCS 2, ¶ 6, March 30, 2018, ECF No.
61.) The Magistrate Judge ruled that the Motion to Compel CCS
should be denied because Plaintiff failed to show he made any
effort to confer with Defendant before seeking court
intervention. (Text Only Order, April 2, 2018, ECF No. 62.)
On
April 10, 2018, eight days after the Order denying the Motion
to Compel CCS was entered, Plaintiff filed a Reply to
Defendant's Response to the Motion alleging that “a
printed copy of his eomis records” had not been added
to his medical jacket as mentioned in Defense Counsel's
letter, and that Defendant's objections to his discovery
requests were unsupported and “flimsy.”
(Pl.'s Reply Mot. Compel CCS 1-2, April 10, 2018, ECF No.
63.) Plaintiff also advised the Court that on April 3, 2018
he had sent a letter to Defense Counsel attempting to resolve
the discovery dispute. Plaintiff asked the Court to
“merely stay a ruling until such time as Defense
Counsel has had sufficient time to respond to the
Plaintiff's letter…as the Plaintiff believes it
highly unlikely the Defense will in any way alter its
position or provide suitable justification for denying
discovery.” (Pl.'s Reply 1, ECF No. 63.)
While
the Motion to Compel CCS was working its way through the
Court, Plaintiff filed a Motion for an Order to Compel
Response to Interrogatories and Production of Documents from
Defendant Nannette Vowell (Mot. Compel Vowell, March 29,
2018, ECF No. 59) and a Motion for an Order to Compel
Response to Interrogatories and Production of Documents from
Defendant Melissa Gifford (Mot. Compel Gifford, March 29,
2018, ECF No. 60). By these motions, Plaintiff sought
responses to the discovery he had served on Defendants Vowell
and Gifford on January 30, 2018. Defendants Vowell and
Gifford filed a Response to Plaintiff's Motions to Compel
asserting that the motions were untimely and premature
because Plaintiff had not attempted to confer with Defense
Counsel before seeking Court intervention. (Defs' Resp.
Mots. Compel, April 12, 2018, ECF No. 64.) The motions to
compel were both denied on the grounds that “Plaintiff
failed to show he made any effort to confer with Defendant(s)
before filing…” (Text Only Orders, April 20,
2018, ECF Nos. 70, 71).
Not to
be deterred, and on or about June 5, 2018, Plaintiff filed a
Motion to Reassert Motions to Compel with Additional Argument
alleging that the responses he received to the January 30,
2018 discovery served on Defendants Vowell and Gifford were
”woefully incomplete” even though Plaintiff had
made efforts to confer with Defense Counsel through written
correspondence on April 3, 2018 and again on May 8, 2018.
(Pl.'s Mot. Reassert Mots. Compel, June 5, 2018, ECF No.
74.) Plaintiff contended that “despite dozens of
requests and grievances, the Plaintiff was never provided all
those documents he sought to view.” Id. at 1.
Plaintiff complained of the “extreme hindrance”
encountered attempting to view the documents that were
produced for his review, including limited viewing time and
arbitrary viewing schedules. Id. at 3. Plaintiff
asserted that his discovery requests were not
“voluminous, [un]proportional, overly broad,
outweighing utility, seeking attorney work product, ”
and that Defendants' objections were not supported by any
facts or explanation and should be overruled. Id. at
4. Finally, Plaintiff accused Defendants of
“duplicity” and using “language intended to
obfuscate and avoid.” Id. At the end of his
motion, Plaintiff once more set forth the specific documents
and information he sought produced by Defendants CCS, Vowell
and Gifford. Id. at 5-7.
In
Response to Plaintiff's Motion to Reassert Motions to
Compel, Defendants stood by their objections to
Plaintiff's discovery requests arguing that the responses
given were appropriate under the Federal Rules of Civil
Procedure. (Def.'s Resp. Mot. Compel, June 19, 2018, ECF
No. 75.) Defendants also pointed out that ADC policy strictly
controls access to an inmate's Medical Records,
“including when and where the inmate will review the
Medical Record and the duration of the review session.”
ADC policy also states that an inmate “will not be
provided with a copy of any part of his or her Medical
Record, except for those forms where a copy is designated for
the inmate, such as duty restrictions or diet
restrictions.” (Def's Resp. 2, ¶ 6 (citation
omitted)). Defendants allege Plaintiff has been provided
appropriate access to his medical records in accordance with
ADC policy, and “that the electronic medical records
have been printed at Plaintiff's request and included in
his medical jacket for Plaintiff to review.”
Id. at ¶ 7. Plaintiff filed a Reply to
Defendants' Response to his Motion to Compel. (ECF No.
79.) Finding Plaintiff's discovery requests were
relevant, and that Defendants' objections were
“conclusory and [did] not make any showing as to why
the information requested should not be produced, ” the
Magistrate Judge issued an Order granting Plaintiff's
Motion to Reassert Motions to Compel wherein Defendants were
directed to respond to Plaintiff's requests as
specifically set forth on page five of the Order. (Order 4-5,
July 9, 2018, ECF No. 80.)
While
the discovery motions against Defendants CCS, Vowell, and
Gifford were pending and referencing the Court's previous
Order advising that he “could submit for the
Court's consideration a motion requesting ‘more
limited injunctive relief, ” Plaintiff filed a second
Motion for Preliminary Injunction. (Pl.'s Mot. Prelim.
Inj, 1, July 5, 2018, ECF No. 76.) Plaintiff describes the
requested relief as follows: “The medical Defendant CCS
provide diagnosis and treatment for the persistent pain in
the tissues of the Plaintiff's face and head.”
Id. at 4. Defendant Rory Griffin filed a Response in
Opposition to the Motion (Resp. in Opposition, July 19, 2019,
ECF No. 84), as did the Medical Defendants (Resp. in
Opposition, July 19, 2019, ECF No. 85). Plaintiff replied to
the Responses. (Pl.'s Reply, August 2, 2018, ECF No. 88.)
On August 10, 2018 the Magistrate issued a Report and
Recommendation concluding that the preliminary injunction
should be denied. (Report and Recommendation, August 10,
2018, ECF No. 92.) Specifically, the Court found that
Plaintiff had failed to show he suffered from an objectively
serious medical need and did not demonstrate a likelihood of
success on the merits. Id. at 4-6. In addition,
Plaintiff failed to show that his alleged symptoms were the
type of serious medical condition that placed him in danger
of immediate harm. Id. at 6-7. Finally, the Court
found that the balance of harm if the injunction is granted
favored the Defendants and that an injunction would not serve
the public interest. Id. at 7. Plaintiff timely
filed written objections. (Pl.'s Obj. to Report and
Recommendation, Aug. 27, 2018, ECF No. 103.)
While
Plaintiff's discovery motions and the second motion for
preliminary injunction were pending, Plaintiff filed three
Motions for Subpoenas (ECF Nos. 77, 78, 82) seeking testimony
of witnesses. The Court denied these motions as premature
since discovery was ongoing. Plaintiff was advised that he
could re-submit his motions to subpoena witnesses for trial
if the case survived summary judgment. (Order, July 9, 2018,
ECF No. 81; Order, July 12, 2018, ECF No. 83.)
On July
23, 2018, in response to the Order (ECF No. 80) compelling
production, Defendants filed a Motion for Extension of Time
to Respond to the Court's Order Granting Plaintiff's
Motion to Compel and for Extension of Time Within to Appeal
to the District Court Pursuant to Federal Rules of Civil
Procedure, Rule 72. (ECF No. 86.) This motion was granted,
and Defendants were given until August 6, 2018 to file
objections to the Order granting Plaintiff's Motion to
Reassert Motions to Compel. (Order, July 24, 2018, ECF No.
87.)
The
Medical Defendants filed an appeal to the District Court of
the Order Granting Plaintiff's Motion to Reassert Motions
to Compel. (Appeal of Magistrate Judge Decision, August 6,
2018, ECF No. 90.) Claiming he did not receive a certified
copy of the Appeal allegedly mailed to him by Defense
Counsel, Plaintiff filed a Motion to Stay Ruling on
Defendants' Appeal, asking for an additional 14 days to
file a response. (Pl.s' Mot. to Stay Ruling of Defs'
Appeal, Aug. 21, 2018, ECF No. 101.) Believing that Plaintiff
was seeking an extension of time to respond the Appeal, the
Magistrate denied the motion for stay, and Plaintiff was
given until September 5, 2018 to file a response. (Order,
Aug. 22, 2018, ECF No. 102.) Plaintiff made a second request
for additional time to respond to the appeal (Pl.'s Mot.
Extend Time, August 29, 2018, ECF No. 104), and the motion
was granted by order entered August 30, 2018 (ECF No. 105).
Plaintiff was given until September 10, 2018 to file his
response, and he met this deadline. (Pl.'s Obj. Defs'
Appeal, Sept. 7, 2018, ECF No. 108.) On November 9, 2018,
United States District Judge Susan O. Hickey, affirmed the
Magistrate's Order Granting Plaintiff's Motion to
Compel, and the appeal was dismissed. (Order, Nov. 9, 2018,
ECF No. 122.)
On
August 6, 2018, the ADC and Medical Defendants filed a Joint
Motion to Extend the discovery deadline to 60 days after the
Court issued a ruling on motions for summary judgment for
want of administrative exhaustion that the Medical and ADC
Defendants each planned to file before the end of the month.
(Defs.' Joint Mot. Extension Time, August 6, 2018, ECF
No. 89.) Defendants also requested that Court extend the
substantive dispositive motions deadline for ninety (90) days
after the Court ruled on the as-yet-unfiled motions for
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