Lowery v. Walker

          REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed pro se by Plaintiff, Gerald H. Lowery, Sr., under 42 U.S.C. § 1983. Before the Court is a Motion for Summary Judgment filed by Defendants Southern Health Partners, Inc., Timothy Reynolds, M.D., Steven King, Chelsey Foster, ^[1] and Loni Redfearn. (ECF No. 41).^[2] Plaintiff has filed two Responses. (ECF No. 48, 50). 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 Arkansas Department of Correction (“ADC”), Varner Unit, in Grady, Arkansas. Plaintiff's claims in this action arise from alleged incidents that occurred while he was incarcerated in the Miller County Detention Center (“MCDC”) in Texarkana, Arkansas.

         Plaintiff was booked into the custody of the MCDC on December 28, 2017 and transferred to the ADC on January 7, 2019. (ECF No. 41-8 p. 7).

         On December 29, 2017, Plaintiff was screened for medical and mental health issues. At that time, he consented to treatment by Defendant Southern Health Partners, Inc. - the third-party organization responsible for providing detainees at the MCDC with medical care. Defendant Foster, a nurse employed by Defendant Southern Health Partners, Inc., performed the screening. (ECF No. 37-4, pp. 2-6). As a result of the screening, it was determined that Plaintiff was eligible to receive a night snack due to his diabetes. In addition, an order was entered to continue Plaintiff's current medications which included Lantus up to 30 units daily and Metformin 1000 mg by mouth twice a day. (ECF Nos., 41-2, 41-5 p. 5, 41-8 p. 7). These medications were verbally verified by Wal-Mart pharmacy. (ECF No. 41-5 p. 5). Lantus is a long acting form of injectable insulin. Metformin is an oral diabetes medication. (ECF No. 41-2, p. 1).

         Beginning on December 29, 2017, Plaintiff was administered twice daily blood sugar checks. (ECF Nos. 41-1 p. 2, 41-5 pp. 31-32). These blood sugar checks continued until January 18, 2018. Id.

         According to the affidavits of Defendants King and Reynolds, ^[3] on December 31, 2017, Lantus was discontinued by Nurse Practitioner - Steven Foltz.^[4] (ECF Nos. 41-1 p. 2, 41-5 pp. 5- 7). At that point Plaintiff was only taking Metformin for his diabetes. Id.

         On January 2, 2018, blood was collected from Plaintiff to determine his Hemoglobin A1C (Hbg A1c) level. (ECF Nos. 41-2 p. 2, 41-5 p. 8). Hgb A1c is also called glycosylated hemoglobin. (ECF No. 41-2, p. 2). Hgb A1c is used as a diagnostic tool to determine an individual's average blood sugar over the past two to three months. (ECF Nos. 41-2 p. 2, 41-6).

         The mathematical formula used to calculate the average blood sugar by Hgb A1c is 28.7 x A1c - 46.7. (ECF Nos. 41-2 p. 2, 41-7). Based on Plaintiff's Hgb A1c result of 6.6, Plaintiff's average blood sugar was 143 milligrams per deciliter (mg/dl) prior to his incarceration in the MCDC. (ECF Nos. 41-2, 41-5 p. 9, 41-7).

         From December 31, 2017, until January 18, 2018, Plaintiff's average blood sugar based on twice daily checks was 124 mg/dl. (ECF No. 41-1 p. 2, 41-5 p. 31-32). This is the period in which Plaintiff was receiving only Metformin for his diabetes and twice daily blood sugar checks. Id.

         On January 18, 2018, Nurse Practitioner Steven Foltz changed Plaintiff's blood sugar checks to weekly. (ECF Nos. 2 p. 2, 41-5 p. 32). Nurse Foltz monitored the results of the weekly blood checks and signed off on the results each week. (ECF No. 41-5 p. 32).

         According to Defendant Reynolds' affidavit, given that Plaintiff's blood sugar was well controlled from December 31, 2017, through January 18, 2018, it was medically prudent to change Plaintiff's blood sugar checks to weekly and discontinue his dosage of Lantus. (ECF No. 2, p. 2).

         On February 16, 2018, Plaintiff submitted a medical request stating he did not receive his night snack. In response Defendant King stated, “You are not on insulin. You have been removed from the night snack list. Your blood sugar will still be checked and if it drops to unacceptable levels you will be placed back on the night snack list. (ECF No. 37-3, p. 1).

         On March 9, 2018, Plaintiff's blood sugar reading registered “high” on the glucose meter. (ECF Nos. 41-2 p. 2, 41-3, 41-5 p. 10-14). Because of the high reading Plaintiff was transported to Wadley Regional Medical Center (“WRMC”) emergency room for evaluation. Id. The WRMC's emergency room physician ordered Plaintiff to be placed on Lantus 10 units at bedtime and ordered that blood sugar checks be performed twice daily. Id. Upon his return to the MCDC, Defendant Reynolds implemented the emergency room physician's orders. (ECF Nos. 41-2 p. 3, 41-3 p. 3, 41-5 pp. 5, 32-34).

         Plaintiff was transported to the WRMC for blood sugar issues two more times during the next twenty-four hours. (ECF Nos. 41-2 p. 3, 41-5 pp. 15-22). On March 10, 2018, the WRMC's emergency room physician ordered Plaintiff's Lantus dose be increased to 20 units at bedtime, and regular insulin be administered according to a “sliding scale.” (ECF Nos. 41-2 p. 3, 41-5 p. 20). The sliding scale method of administration is based on the adjustment of regular insulin doses depending on the current blood sugar reading. (ECF No. 41-2, p. 3). On March 11, 2018, Nurse Practitioner Foltz increased Plaintiff's Lantus to 20 units at bedtime and ordered regular insulin to be administered according to the WRMC's emergency room sliding scale. (ECF Nos. 41-2 p. 3, 41-5 p. 6, 41-8 pp. 11-13). Plaintiff continued to receive these dosages until June 8, 2018, when his Lantus was decreased to 18 units at bedtime. (ECF No. 41-5 p. 44).

         On March 28, 2018, Plaintiff was inadvertently administered 20 units of regular insulin rather than his 20 units of Lantus by Defendant Redfearn, a nurse employed by Defendant Southern Health Partners, Inc. (ECF Nos. 41-4 p. 2, 41-5 p. 23). Prior to this injection, Plaintiff's blood sugar was 202 mg/dl. (ECF Nos. 41-4 p. 2, 41-5 p. 36). Defendant Redfearn states in her affidavit, “At no time did I intentionally administer medications to Mr. Lowery that were not prescribed for him.” (ECF No. 41-4, p. 2). Plaintiff states he believes this incident was negligence. (ECF No. 41-8 pp. 14-15, 27).

         Plaintiff states after he was given the wrong medication, he was given bologna sandwiches to eat to keep his blood sugar from going too low. (ECF No. 19, p. 11). Ten minutes after the injection of the incorrect medication Plaintiff's blood sugar was 180 mg/dl. (ECF No. 41-5, 41-5 p. 23). Thirty minutes after the injection Plaintiff's blood sugar was 187 mg/dl. Id. Even though Plaintiff's blood sugar never reached a critical level he was transported to the WRMC for evaluation. (ECF No. 41-4, 41-5 pp. 23-26).

         On March 30, 2018, Plaintiff sent a request addressed to Defendant Walker requesting a face to face meeting “in regards to the evolution of my medical care in your jail…to address…another trip to the hospital that obviously could have been prevented and certainly could have been life threatening…” (ECF No. 37-3 p. 2).

         On April 3, 2018, Plaintiff submitted a grievance stating:

This grievance is to formally put a complaint against the inconsistencies of the medical applications of the facility and the callous intimidating tactics of Nurse King in regards to the personal treatment here and what he decides versus what the doctors have instructed at the hospital. The lack of access to my own personal information in regards to my treatment in this facility and the fact that although I have ‘labeled' with my name medication, I'm still getting someone else's and other infract.

(ECF No. 37-3 p. 3). The next day, the responding officer forwarded Plaintiff's requests to the appropriate authority.

         On May 7, 2018, Plaintiff submitted a grievance stating:

Up was discovered. I was taken to R&D for observation and given 6 bologna sandwichs. Lonnie returned to R&D moments later to inform me that I would be taking yet another preventable trip to thr E.R. as earlier in the month I had taken 3 embarassing trips to the E.R. handcuffed, chained and shackeled in what was another obviously avoidable debagel in less than a 24 hour period. The attending physician at the E.R. pointed out several discrepancies including but not limited Lonnie drawing the insulin.

(ECF No. 37-3 p. 6). In response Defendant King stated, “I have acknowledged receipt of the complaint.” Id.

         That same day Plaintiff submitted a second grievance stating:

Then giving me the syringe without identifying the meds. The immediate adverse effects have been to my eyesight and stopping the dripping at the end of my bladder evacuation. I now have difficulties with my injections as I am extremely apprehensive of taking the wrong shot. I have no clue of future mental, physical or emotional impairments this will have on my quality or longevity of life.

(ECF No. 37-3 p. 7). Again, Defendant King responded stating, “I have acknowledged receipt of the complaint.” Id.

         Plaintiff submitted a third grievance on May 7, 2018 stating:

This grievance has been generated in regards to the 20 units/cc of Humulin fast acting insulin that I was given on the evening of 3-28-18 instead of the slow acting Lantus that should have been administered and the psyical & psychological ramafications that have insued from said trauma. L.VN. Lonnie Redfearn drew up the Humulin in the syringe and handed it to me. I did the injection in my lower abdomen. As the next diabetic prisner was about to take his injection it was at that time the insulin mix.

(ECF No. 37-3 p. 8). Defendant King again acknowledged receipt of the complaint. Id.

         On May 14, 2018, Plaintiff was accused of theft after an excessive amount of alcohol pads were found in his property during a shake down. Plaintiff appeared at his hearing and accepted the sanction that was offered to him - 30 days loss of commissary. (ECF No. 37-5 pp. 1-6).

         On June 5, 2018, Plaintiff submitted a medical request stating, “I need the nurse to evaluate the condition of my lower left jaw and upper righ[t] molar tooth to direct me on what needs to happen as it has swollen and is sore also making it hard to chew. Thank you.” (ECF No. 37-3 p. 33). The record reflects this request was read by Defendant Foster, a nurse employed by Defendant Southern Health Partners, Inc. Id. Defendant King examined Plaintiff's mouth and told him he had an abscess tooth. He then gave Plaintiff three pills and told him to put in a sick call for that evening. (ECF No. 48 p. 6). Later that day, Plaintiff submitted another medical request stating, “The medicine that Nurse King gave me for pain has worn off and I was suppose to start on an antibiotic this evening so I can have a tooth removed Saturday…My pain is an excruciating 10…” (ECF No. 37-3 p. 34).

         During evening pill call on June 5, 2018, Plaintiff was cited for disrespectful behavior toward an MCDC staff member when he allegedly called a jailer “jackass” and was taken to lockdown. Although he denied saying the word, Plaintiff appeared at his disciplinary hearing and accepted the sanction of 15 days in lockdown. (ECF No. 37-5 pp. 8-13). According to the affidavit of Defendant Foster, Plaintiff refused his sick call at that time. (ECF Nos. 41-3 p. 2). Plaintiff specifically disputes this statement. (ECF No. 50 p. 3). There is no dispute Plaintiff did not receive any pain medication on the evening of June 5, 2018, before or after he was moved to lockdown. Id.

         According to the affidavits of Defendants King, Foster and Redfearn, Plaintiff did not make any requests, either verbal or written, for pain medication between June 6 and June 9, 2018. (ECF No. 41-1 p. 2, 41-3 p. 2, 41-4 p. 2). Plaintiff specifically disputes this and states, “I never refused medication. I was given a refusal and requested medication daily.” (ECF No. 50). He also states, “I was harshly admonished by Nurse S. King on the morning of 6-6-18 and when I asked him for pain medication he told me to put in a request on the kiosk…I lost kiosk privileges as part of my punishment.” Id. at p. 8.

         Defendant Foster states in her affidavit, “Inmates placed in administrative segregation can submit a sick call through the kiosk or by submitting a paper request.” Plaintiff disputes this statement in part and claims the kiosk was not turned on during his time in lockdown. (ECF No. 50 p. 3).

         On June 9, 2018, Plaintiff was prescribed 800 mg Ibuprofen twice daily for seven days after a tooth extraction. (ECF Nos. 41-1 p. 2, 41-5 p. 29). Plaintiff continued to receive this medication ...