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