United States District Court, W.D. Arkansas, Texarkana Division
GERALD H. LOWERY, SR. PLAINTIFF
WARDEN JEFFIE WALKER, Miller County Detention Center MCDC; NURSE S. KING, Head Nurse MCDC; NURSE CHELSEA FOSTER, MCDC; NURSE LONNIE REDFEARN, MCDC; DR. TIMOTHY REYNOLDS, MCDC; SHERIFF JACKIE RUNION; SOUTHERN HEALTH PARTNERS, INC.; and MILLER COUNTY DEFENDANTS
REPORT AND RECOMMENDATION
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
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,  and Loni Redfearn. (ECF No.
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.
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
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
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).
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.
to the affidavits of Defendants King and Reynolds,
December 31, 2017, Lantus was discontinued by Nurse
Practitioner - Steven Foltz. (ECF Nos. 41-1 p. 2, 41-5 pp. 5-
7). At that point Plaintiff was only taking Metformin for his
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).
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).
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.
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).
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).
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).
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).
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).
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.
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).
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.
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
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.”
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.”
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.
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).
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).
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.
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.
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).
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