ERIN L. SETSER, Magistrate Judge.
This is a civil rights action filed by the Plaintiff, Carl Jeffrey Parks, pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. He has sued Defendants in both their individual and official capacities.
Plaintiff is currently incarcerated in the Arkansas Department of Correction (ADC), North Central Unit, in Calico Rock, Arkansas. The events at issue in this case occurred while Plaintiff was incarcerated in the Benton County Detention Center (BCDC) in Bentonville, Arkansas, from August 25, 2010, to May 10, 2011. Specifically, Plaintiff maintains he was denied adequate medical care for a back condition he had that was aggravated by injuries he sustained in November of 2010, while trying to assist in fixing a cell door.
Defendants have demanded a jury trial. On September 28, 2011, a pretrial evidentiary hearing was held to determine if any issues triable to a jury exist. Following the hearing, a subpoena was issued for the records from Estes Chiropractic Clinic.
The testimony of the following witnesses was taken: (1) Kyle Kallstrom; (2) the Plaintiff, Carl J. Parks; (3) Dr. John Huskins, a named Defendant; (4) Nurse Marsha Smith, a named Defendant; (5) Nurse Gail Hartgraves, a named Defendant; (6) Captain Robert Holly, a named Defendant; and (7) Sheriff Keith Ferguson, a named Defendant. For purposes of discussion, their testimony and the evidence presented will be summarized.
Prior to his incarceration at the BCDC, Plaintiff testified he was being treated for back pain by Dr. Poemoceah with hydrocodone and clonazepam.
Dr. Huskins, the jail physician, testified he first saw Plaintiff on September 8, 2010, due to complaints of back pain in the mid-thoracic region and allergies. Dr. Huskins prescribed Tylenol, three times a day for ten days, and requested Plaintiff's records from his treating physician.
On September 16th, the Flexeril was discontinued and Soma (carisoprodol) prescribed instead.
On October 6th, Plaintiff was seen with complaints of back pain and requested steroids.
On October 22nd, Plaintiff was given a cortisone shot for his back.
On or about November 17th, at the request of Deputy Stettnisch, four or five inmates, including the Plaintiff, were working on the cell doors. The process involved placing a folded up towel at the bottom of the door between the frame and the door, slamming it shut, and pulling it open after several minutes had passed. When he pulled on a cell door that was stuck, Plaintiff felt a sharp pain between his shoulder blades. He knew right away that he had injured his back and asked to see the doctor. Dr. Huskins was not at the BCDC at that time. Nurse Smith placed Plaintiff's name on the list of inmates to be seen the following day.
Kyle Kallstrom, a fellow inmate, testified that he was present when Plaintiff sustained the injury to his back. Kallstrom testified that when Plaintiff pulled on the door Kallstrom heard something "pop" and it was obvious Plaintiff was in pain.
Plaintiff testified that by the next day, November 18th, he was in excruciating pain. Plaintiff was seen by Dr. Huskins and complained of significant mid to low back pain.
Plaintiff testified his condition continued to worsen despite the fact that he saw Dr. Huskins once or twice a week. On November 23rd, an x-ray of Plaintiff's lumbar spine was taken.
On November 29th, Plaintiff was seen complaining of upper and lower back pain and a cough.
On December 6th, Dr. Huskins ordered x-rays of Plaintiff's cervical and thoracic spine due to continued complaints of pain.
Specifically, the x-rays of the thoracic spine revealed "[m]ild intervertebral disc disease identified throughout the thoracic spine. No acute thoracic spine abnormality identified."
On January 15, 2011, Plaintiff was seen by Nurse Hartgraves.
Plaintiff had a follow-up appointment with Dr. Huskins on January 19th.
Nurse Smith testified that as one of the jail nurses she scheduled appointments for inmates. It was her understanding that when she called for an appointment she was given the first available appointment. On February 15th, when she called to schedule an appointment at Ozark Orthopaedics, the first available appointment was March 2nd. It is not clear from the testimony how Plaintiff ended up with an earlier appointment but he was first seen at Ozark Orthopaedics by Julie Slavik, PAC, on January 27th.
Plaintiff continued to complain of pain and, on January 31st, was prescribed MS Contin (oral morphine).
On February 7, 2011, a MRI was done.
When Dr. Huskins reviewed the MRI results with Plaintiff, Dr. Huskins authorized a return visit for Plaintiff at Ozark Orthopaedics.
On April 12th, when Plaintiff was seen complaining of back pain due to a fall on the previous day, Nurse Smith contacted Dr. Huskins and Plaintiff was approved for an additional dose of morphine. On April 18th, when Plaintiff fell again, Nurse Smith testified Plaintiff was sent to the emergency room for evaluation. Torodal was prescribed and Dr. Huskins authorized Plaintiff to receive this along with his other medications.
On April 15th, Nurse Hartgraves testified Plaintiff was brought to the nurse's station by Sergeant McCraine and Sheriff Ferguson. Plaintiff was in tears and stated he was suffering from back pain and nothing had been done. Nurse Hartgraves reminded him that he had just been started on prednisone the previous day and was on pain medication. She advised Plaintiff that the first chiropractic appointment was cancelled when Dr. Barnes' office required an up front cash payment. Plaintiff was informed that another appointment had been scheduled.
Plaintiff's son had passed away the week before and Plaintiff was also worried about his ability to work after he was released with his "back out." Nurse Hartgraves testified that Plaintiff accused Benton County of delaying his medical care so it would not be liable for his medical bills. Nurse Hartgraves indicated she reminded Plaintiff that they had no idea when he would leave their care and his care was proceeding appropriately.
Sheriff Ferguson testified that he accompanied the Plaintiff and McCraine to the nurse's station on April 15th. Sheriff Ferguson recalled hearing that Plaintiff's son had passed away and believed that may have been why he visited with the Plaintiff. While his recollection of the conversation he had with Plaintiff was vague, Sheriff Ferguson could recall saying that Plaintiff had to "look forward," but did not recall discussing Plaintiff's medical condition with him.
With respect to the chiropractor, Nurse Smith testified she initially scheduled an appointment with Dr. Barnes for March 30th. However, on March 29th, Dr. Barnes' office called and stated they would not see Plaintiff without a $100 payment at the time of service. Despite, Nurse Smith's assurances that the county would take care of the cost of the visit, Dr. Barnes' office insisted $100 be paid up front. As this issue had never arisen before, Nurse Smith checked with Dr. Huskins who advised her to make an appointment with someone else.
Captain Holly testified that he was the jail administrator. He indicated the jail did not have a petty cash fund. Usually when payment up front was requested, Captain Holly testified a letter was written guaranteeing payment. He indicated it was also possible for payment to be made with a credit card. However, he was not consulted about the demand for payment made by Dr. Barnes.
Nurse Smith made an appointment for April 19th with Mark Estes, D.C., of Estes Chiropractic.
During this entire period of time, Plaintiff continued receiving pain medication and his medications were adjusted or changed on various occasions.
According to Plaintiff, Captain Holly also responded to grievances. Plaintiff also testified that one day when he went to see Dr. Huskins, Sheriff Ferguson was there and told the doctor to schedule an MRI. Plaintiff explained that he named both Nurse Smith and Nurse Hartgraves as Defendants because they were present at the doctor's visits. Plaintiff testified that neither did anything wrong. Plaintiff explained that he named Detective Stettnisch as a Defendant because he was present when the injury occurred.
As jail administrator, Captain Holly testified that he responds to any grievances dealing with the civil rights of inmates. If Captain Holly was not at the facility, Lieutenant Carter would respond to the grievances. With respect to grievances relating to medical care, Captain Holly indicated that if he knew the inmate was receiving medical care he would defer to the medical staff. He recalled talking to Plaintiff on a couple of occasions regarding his medical condition.
A pretrial evidentiary hearing may be utilized to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
Section 1983 provides a cause of action against any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. "Qualified immunity shields government officials from liability in a § 1983 action unless the official's conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known."
I begin with the question of whether the facts support Plaintiff's claim that Defendants violated his Eighth Amendment rights by exhibiting deliberate indifference to his serious medical needs. "Where a prisoner needs medical treatment prison officials are under a constitutional duty to see that it is furnished."
"In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The deliberate indifference standard includes "both an objective and a subjective component: `The [plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs.'"
It is not necessary for the Plaintiff to show a total deprivation of medical care.
It is undisputed that Plaintiff had serious medical needs with respect to his back. He was under a doctor's treatment prior to and after incarceration and was given a variety of medications including narcotic pain medication to provide relief from pain.
With respect to Deputy Stettnisch, Plaintiff testified that he named the deputy as a Defendant solely because he was present when Plaintiff was injured. This provides no basis of liability.
Sheriff Ferguson and Captain Holly, as supervisory officials, cannot be held liable on a theory of respondeat superior.
Sheriff Ferguson and Captain Holly did not personally provide medical treatment to the Plaintiff and were not personally involved in determining what medical care Plaintiff should receive or the timing of medical care that was provided.
With respect to the medical Defendants, Nurse Smith, Nurse Hartgraves, and Dr. Huskins, I believe no reasonable jury could find that these Defendants exhibited deliberate indifference to Plaintiff's serious medical needs. Plaintiff testified neither Nurse Smith nor Nurse Hartgraves had done "anything wrong." Instead, they were named as Defendants solely because they were present at his visits with Dr. Huskins.
In regard to Dr. Huskins, Plaintiff was: seen on numerous occasions; prescribed a variety of medications which were either eliminated, the dosage adjusted, or other drugs prescribed in conjunction with them, if they proved to be ineffective by themselves; sent to the hospital at least two different times; referred to an orthopedic doctor; and referred to a chiropractor.
Although there was some delay in Plaintiff's initial receipt of chiropractic care, there is no evidence that Plaintiff suffered adverse consequences because of this delay.
"The inmate must clear a substantial evidentiary threshold to show the prison's medical staff deliberately disregarded the inmate's needs by administering inadequate treatment."
"Claims against individuals in their official capacities are equivalent to claims against the entity for which they work; they require proof that a policy or custom of the entity violated the plaintiff's rights."
For the reasons stated, I recommend that: the Defendants be found to be entitled to qualified immunity on the individual capacity claims; it be found that there is no basis for liability on the official capacity claims; and, the case be dismissed in its entirety because the evidence does not present a sufficient disagreement to require submission to the jury.
