Jones v. Deluca

          REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed pro se by Plaintiff, Wremburen Jones, under 42 U.S.C. § 1983. Before the Court is a Motion for Summary Judgment filed by Defendants Dr. Joseph DeLuca, Nurse Sheryl Mendenhall, and Jail Administrator James Bolton. (ECF No. 17). Plaintiff has filed a Response. (ECF No. 24). Defendants have filed a Reply. (ECF No. 27). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         I. FACTUAL BACKROUND

         Plaintiff is currently incarcerated in the Garland County Detention Center in Hot Springs, Arkansas. Plaintiff's claims in this action arise from alleged incidents that occurred while he was incarcerated in the Ouachita County Detention Center (“OCDC”) in Camden, Arkansas in 2016.

         Plaintiff was booked into the custody of the OCDC on April 10, 2016 and released September 8, 2016. (ECF No. 19-2, p. 2). During this time Defendant DeLuca was under contract with Ouachita County to provide medical evaluation and treatment for the OCDC's detainees. (ECF No. 19-6, p. 1). Defendant Bolton was the Jail Administrator for the OCDC, (ECF No. 21- 1, p. 1), and Defendant Mendenhall was the staff nurse for the OCDC. (ECF No. 19-6, p. 1).

         On the same day Plaintiff was booked in to the OCDC, April 10, 2016, he was medically evaluated by Dr. Carlos Quintero at the Ouachita County Medical Center. (ECF No. 19-4, pp. 2-5). Plaintiff was diagnosed with a par lumbar muscle strain, prescribed the medication Flexeril, ^[1]and instructed to follow up with Defendant DeLuca within two to three days for continuance of care. Id. The following day, Plaintiff's medications - Flexeril, Omeprazole, Gabapentin, and Procardia - were approved to be administered while Plaintiff was in the custody of the OCDC. (ECF No. 19-4, p. 6). The medication bottles (except for Flexeril) showed Defendant DeLuca as the prescribing physician. Id.^[2]

         On April 14, 2016, Plaintiff submitted an Inmate Medical Request regarding his back pain. In response to Plaintiff's request, Defendant Mendenhall informed Plaintiff he was currently being provided medications to help alleviate his back pain and Defendant DeLuca had been informed Plaintiff was in the custody of the OCDC. (ECF No. 19-5, p. 2).

         On April 15, 2016, Plaintiff submitted an Inmate Grievance stating, “teeth hurting and swollen, need dentist appointment asap please.” In response Defendant Bolton informed Plaintiff he would need to submit a medical request to have his teeth evaluated. (ECF No. 19-3, p. 2).

         On April 18, 2016, Plaintiff requested an appointment with Defendant DeLuca to discuss his current medications. Defendant Mendenhall informed Plaintiff she would let Defendant DeLuca know he wanted to see him. (ECF No. 19-5, p. 2).

         On April 21, 2016, Plaintiff requested a visit with Defendant DeLuca to discuss his medications. (ECF No. 19-4, p. 13). On May 5, 2016, Defendant DeLuca noted in Plaintiff's medical file to “continue current medications as directed.” Id.

         On May 13, 2016, Plaintiff submitted an Inmate Grievance and medical Request stating, “Medical-ATTENTION-BEING-DENIED. SPEAK-WITH-SHERIFF-NORWOOD.” In response, Defendant Bolton informed Plaintiff he was on the list to be evaluated by the doctor. (ECF No. 19-3, p. 2).

         On May 18, 2016, Plaintiff again requested to have his back evaluated by Defendant DeLuca. Defendant Mendenhall presented the request to Defendant DeLuca who noted in Plaintiff's medical file “nothing for back pain.” (ECF No. 19-4, p. 14).

         On May 26, 2016, Plaintiff submitted an Inmate Medical Request stating, “I've been here for almost 2 months n constant pain daily. I would like too see doctor and stop getting lied too about being put on wait list.” (ECF No. 19-5, p. 3). Defendant Mendenhall responded stating, “Mr. Jones no one is lying to you. You have been on the list for the Doctor to see. I cannot make him see you. He decides who he will see during his time here. I will place you on the list again.” Id.

         On May 31, 2016, Plaintiff submitted an Inmate Grievance stating, “I would like to appeal my last grievance, because I'm being denied medical attention. Would like for this issue to be resolved as soon as possible.” (ECF No. 19-3, p. 3). Defendant Bolton responded stating, “You have been placed on the Dr. list. He chooses who he sees. It might help if you would send a Medical Request with some details of your medical problems.” Id.

         On June 1, 2016, Plaintiff submitted an Inmate Medical Request stating, “I am having constant and sever lower back pain on a daily basis.” (ECF No. 19-5, p. 3). Defendant Mendenhall responded informing Plaintiff “you are on the list.” Id.

         On June 2, 2016, Plaintiff again requested to see Defendant DeLuca for back pain. (ECF No. 19-4, p. 15). Defendant Mendenhall presented the request to Defendant DeLuca. The following day, Defendant DeLuca noted in Plaintiff's medical file “nothing for back pain.” Id.

         On June 8, 2016, Plaintiff submitted an Inmate Medical Request stating, “would like to see doctor concerning constant and severe lower back pain that has been going on for two months.” (ECF No. 19-5, p. 3). Defendant Mendenhall responded stating, “I will let him know again.” Id.

         On June 19, 2016, Plaintiff submitted an Inmate Grievance stating, “would like opportunity to visit dentist immediately, have toothache; and need tooth pulled. Thank you.” (ECF No. 19-3, p. 5). Defendant Bolton responded two days later indicating “appointments are being scheduled.” Id.

         On July 3, 2016, Plaintiff submitted an Inmate Grievance stating, “I've put in numerous requests; concerning having extremely and severly lower back pain on a daily basis. Could you please allow me to see doctor. Thank you very much.” (ECF No. 19-3, p. 5). Defendant Bolton responded the following day telling Plaintiff again he was on the “Dr. list to see.” Id.

         On July 23, 2016, Plaintiff submitted an Inmate Medical Request stating, “would like to visit doctor about these constant and severe lower back pain that I'm enduring on a daily basis. It has gotten were im hurting and pain is shooting all down my legs daily.” (ECF No. 19-5, p. 5). Defendant Mendenhall responded four days later stating, “I will place you on the list.” Id.

         On July 26, 2016, Plaintiff was evaluated for “my abscessed molar. Which is my mouth and Face. Cause of my bad teeth hurting. I was prescribed penicillin. So, that it would get the swelling out. But I still had not seen a dentist….penicillin is not for pain. I wasn't given any pain medication …nor have I seen, the dentist as promised by Jail Administrator, James Bolton…” (ECF No. 1, p. 10).

         Plaintiff's medical records indicate Plaintiff was seen on July 28, 2016, in the OCDC medical clinic for back pain shooting down his legs. (ECF No. 19-4, p. 7). A physician, presumably Defendant DeLuca, noted that day under Physician's Findings and Orders “Nothing else.” Id. However, Plaintiff specifically disputes he was seen by Defendant DeLuca on this day. (ECF No. 1, p. 6 and ECF No. 24).

         On August 4, 2016, Plaintiff submitted an Inmate Medical Request stating, “would like to see doctor concerning these severe burning and constant pains in my back daily. It has gotten were severe pains are through my legs as well this has affected my walking ability.” (ECF No. 19-5, p. 5). Defendant Mendenhall responded the following day telling Plaintiff he was on the list to be evaluated by the doctor. Id. That same day, Plaintiff submitted an Inmate Grievance stating, “I've been putting in numerous sick call requests; and grievances concerning my health issues and all I keep hearing is I'm being out on list to see doctor. This has been going on for four months.” (ECF No. 19-3, p. 10). Defendant Bolton responded to Plaintiff's ...