Everhart v. Flournoy

          MEMORANDUM OPINION AND ORDER

          Susan O. Hickey Chief United States District Judge

         Before the Court is a Supplemental Motion for Summary Judgment filed by Defendant Sharon Flournoy (ECF No. 54) and a Supplemental Motion for Summary Judgment filed by Defendants Chris Walcott and Robert Gentry (ECF No. 58). Plaintiff Wayne Alvin Everhart has responded to each motion. (ECF Nos. 62, 64). Defendants Gentry and Walcott have filed a reply. (ECF No. 66). The Court finds these matters ripe for consideration.

         I. BACKGROUND

         This is a civil rights action filed pro se by Plaintiff, Wayne Alvin Everhart, pursuant to 42 U.S.C. § 1983. Plaintiff's claims in this action arise from alleged incidents that occurred between August 20, 2017, and October 25, 2017, while he was incarcerated in the Sevier County Detention Center (“SCDC”).^[1] Plaintiff alleges Defendants denied him medical care while he was incarcerated in the SCDC between August 20, 2017, and October 25, 2017, when they ignored his complaints of extreme pain from his hernia and ulcers in his mouth and when his medications were “messed up” and improperly dispensed to him on three occasions. Plaintiff also claims his constitutional rights were violated when Defendant Walcott refused to provide him with copies of his grievances. Viewed in the light most favorable to Plaintiff, the relevant facts are as follows.

         A. Plaintiff's Health Issues

         Plaintiff was booked into the SCDC on August 20, 2017. During intake, Plaintiff notified SCDC personnel about his inguinal hernia. (ECF No. 55, p. 1). On August 26, 2017, Plaintiff underwent a History and Physical, during which he identified his current medical conditions as anxiety, torn left meniscus, left shoulder pain, and a left inguinal hernia. Id.

         On August 30, 2017, Plaintiff submitted a grievance stating in part that he “was denied medical attention when telling staff he was not only urinating blood but continuously leaking blood from his private parts! Yet staff not only refused medical attention but left [him in] N Pod with bloody clothing[.]” (ECF No. 60, pp. 2-3). Defendant Walcott responded the next day, indicating the grievance had been received and that “all medical complaints or request[s] should go to the Medical staff.” Id. Plaintiff did not file a medical grievance or complaint regarding this incident and there is nothing in the summary judgment record to indicate that this grievance was ever addressed by any SCDC officer or any medical personnel. That same day, Plaintiff submitted another grievance, requesting “a printed copy of each and every grievance I've filed since being housed here.” The next day, Defendant Walcott responded stating, “we do not give out grievances.” Id.

         On September 21, 2017, Plaintiff submitted an Inmate Medical Request complaining of blood in his urine. (ECF No. 60, p. 2). That same day, Officer Anthony Dibucci submitted the following Jail Incident Report:

On the 21st day of September 2017, at 1700, I Officer DiBucci, assumed jailer duties. At approximately 1915 Officer Alvarez notified me over the radio that [Plaintiff] complained he has blood in his urine. I then called [Defendant Flournoy] and she asked us to get a sample of urine from [Plaintiff]. Once we did there was clearly blood in the urine. I then contacted [Defendant Flournoy] again [and] she told us to take [Plaintiff] to ER. [Defendant] Walcott was then contacted and

         notified of the situation. I then had Officer Alvarez take [Plaintiff] to the ER. (ECF No. 60-5, p. 2). Defendant Flournoy submitted an affidavit stating that although she was not on duty at the SCDC on September 21, 2017, she handled Plaintiff's complaints from off-site by having him transported to the emergency room. (ECF No. 56-1, p. 2). At the hospital, Plaintiff was diagnosed with an inguinal hernia and underwent a urinalysis culture. He was placed on Bactrim-an antibiotic used to treat urinary tract infections-for seven days and was referred to a surgical specialist to undergo further medical evaluation. (ECF No. 60, p. 3). The emergency room physician specifically ordered that “[Plaintiff] needs to see a surgeon next week”. (ECF No. 60-4, p. 10). Defendant Flournoy states she had no further contact with the SCDC on September 21, 2017, following Plaintiff's emergency room visit. (ECF No. 56-1, p. 2).

         On September 25, 2017, Plaintiff submitted an Inmate Grievance stating:

I was taken to ER the other night and know for certain I was given a surgery referral, and have told staff numerous times about having pain in my lower hernia steadily dropping to point where it feels like its about to rupture, yet the nurse wants me to take a urine sample which was done the day of my trip to Emergency Room and hasn't happened but one time since then, it is the PAIN that is the problem! [Defendant Flournoy] is not a doctor nor do I feel comfortable having my well being or anything to [do] with my personal health in her hands or having her opinion what so ever.

         (ECF No. 60-3, p. 11). Defendant Walcott responded, stating “[a]ll medical requests or complaints need to be made to the medical staff.” Id. Later that day, Plaintiff submitted the following Inmate Medical Request:

I was taken to emergency room a few nights ago and had blood in my urine, and know for a fact that I was given a referral to see a surgeon for this week, I have only urinated blood 1 time since the trip to the emergency room, yet the pain has increased and my hernia has dropped to point where it feels like its about to rupture, I have notified staff numerous times of this yet when calling [Defendant Flournoy] she has them tell me she will get my urine sample from me in morning, I do not see where a urine sample is even relevant to me being in pain and having no trace of blood or foul smell in my urine, she is not a DR. and I do not feel safe/comfortable with her having anything to do with her having any say so or influence to decision pertaining to my well being and/or personal health.

         (ECF No. 44-5, p. 3).

         According to her affidavit, Defendant Flournoy was not on duty at the SCDC from September 21, 2017, through September 24, 2017. (ECF No. 56-1, p. 2). She returned to work on Monday, September 25, 2017, and noted the physician's special orders for a surgical consult for Plaintiff. Id. In addition, Defendant Flournoy states that between September 25, 2017, and September 28, 2017, she made several attempts to locate a surgeon who was willing to see inmates. (ECF No. 56-1, p. 2). On September 28, 2017, she located Dr. Anthony Burton in Mena, Arkansas, who was willing to see Plaintiff. Id. On September 28, 2017, a week after the emergency room physician ordered that Plaintiff be referred to a surgeon for consult and three days after Plaintiff submitted two grievances regarding his referral to a surgeon, Defendant Flournoy sent a request to the Arkansas Department of Correction (“ADC”) to order Plaintiff's surgical consult. Id.

         On October 2, 2017, Plaintiff submitted another Inmate Medical Request stating, “I have tremendous pressure on my scrotum to point to where its making me dizzy and nauseous.” (ECF No. 44-5, p. 4). In response to this request, Plaintiff was seen in the SCDC clinic that same day and medically evaluated by the staff of Southern Health Partners, Inc.^[2] On October 3, 2017, a nurse replied to Plaintiff's Inmate Medical Request submitted on September 25, 2017, stating, in relevant part, “Medical needs are being met.”^[3] (ECF No. 44-5, p. 3). Plaintiff's medical records reflect that he was prescribed 500 mg of Tylenol that same day. (ECF No. 56-2, p. 7).

         On October 10, 2017, Plaintiff submitted a grievance, requesting “[to] speak to Chad Daddle or [Defendant] Gentry[.]” (ECF No. 60-3, p. 19). However, Plaintiff did not specify what he wanted to speak with them about. Defendant Walcott responded the following day, indicating that he would “let them know you would like to speak with them.” Id. According to Defendant Gentry's affidavit, ^[4] as the Sheriff of Sevier County, Arkansas, he does not receive grievances and does not respond to grievances. (ECF No. 60-6, p. 1). He also states he was not aware that Plaintiff was suffering from severe pain during his incarceration in the SCDC and the only time he was aware of a medical emergency regarding Plaintiff was when he was taken to the emergency room on September 21, 2017. Id.

         On October 12, 2017, Plaintiff submitted a Health Services Request stating:

This is the 3rd time my meds have been messed up either in morning shift and then tonight . . . the time before I was taken off ibuprofen due to being on [Bactrim] and neproxem at the same time then days later I was given 3 ibuprofens, 1 neproxen, and [Bactrim] and it has had the inside of my mouth sore and sensitive everyday since.

         (ECF No. 56-2, p. 16). On October 13, 2017, Nurse Practitioner Steven Foltz examined Plaintiff, found there were multiple ulcers in Plaintiff's mouth, and noted that Peridex oral rinse needed to be ordered for Plaintiff. Id. at pp. 7, 13.

         In her affidavit, Defendant Flournoy states that she was not on duty on October 13, 2017, and had no knowledge of the Peridex prescription. She states that she returned to work at the SCDC at 1:30 p.m. for a half day on Saturday, October 14, 2017, and left work at 5:30 p.m. Defendant Flournoy returned to the SCDC and worked on Sunday, October 15, 2017, from 9:00 a.m. until 1:00 p.m. Plaintiff complained of mouth pain at approximately 9:35 p.m. that evening and received an over-the-counter oral mouth rinse from a member of the SCDC's staff. Id. at p.

         On Monday, October 16, 2017, Defendant Flournoy ordered Plaintiff's prescription for Peridex. (ECF No. 56-1, p. 3). That same day, Plaintiff submitted a medical request stating, “[I] got my medicated oral rinse last night but didn't get it today, my mouth is hurting [severely] to the point where I can barely eat and waking me up all throughout the night.” (ECF No. 56-2, p. 18). A nurse responded on October 17, 2017, stating, “[w]ill receive on nights med pass.” Id. That same day, Plaintiff submitted the following medical request:

[I] have been telling staff and filling request about the inside of my mouth and throat for over a week now. I am unable to eat because of the [excruciating] pain and sores in my mouth! Which started because of over excess of certain and similar type meds being when not suppose to be on that much of one type. Everytime staff says nurse said it'll be on med cart yet when med cart gets here same thing nothing on it. I have food still in the bowls from being unable to eat it and [repeatedly] telling staff and asking for help yet nothing is being done, one staff member found some medicated rinse for me one night and haven't got it since . . . Each staff member after this says they can't get ahold of nurse and passes my issue off to the next shift[.]

Id. at p. 19. A nurse responded to Plaintiff's complaint the same day, stating:

provider ordered your peridex mouth rinse on Friday. We have to order it from the pharmacy as it is something that we do not keep in our house stock. What you was given by jail staff was a standard over the counter mouth rinse. I have called the pharmacy and your mouth rinse is now ready for pick ...