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De Rossitte v. Correct Care Solutions, Inc.

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

May 20, 2019

CHRISTOPHER EUGENE DE ROSSITTE PLAINTIFF
v.
CORRECT CARE SOLUTIONS, INC. DR. NANETTE VOWELL, and NURSE MELISSA L. GIFFORD DEFENDANTS

          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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