PATRICIA S. HARRIS, Magistrate Judge.
The following proposed Findings and Recommendation have been sent to Chief United States District Judge Brian S. Miller. You may file written objections to all or part of this recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this recommendation. By not objecting, you may waive theright to appeal questions of fact.
Plaintiff Every Richardson commenced this case by filing a complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 2). In the complaint, he alleged that his constitutional rights were violated because the defendants were deliberately indifferent to his serious medical needs. He specifically alleged that infected wounds on his right ankle have not been properly treated and his requests for pain medication have largely been ignored. Richardson sues defendants in both their official and individual capacities and seeks both compensatory and punitive damages. See Doc. No. 2 at 1 & 3.
Defendants Wendy Kelley and Rory Griffin were previously granted summary judgment. See Doc. Nos. 84 & 85. Richardson moved for summary judgment and filed a declaration and statement of undisputed facts in support. See Doc. Nos. 81 & 82. The remaining defendants, Jason Kelley and Estella Bland, filed a response asserting that Richardson's motion was premature and asking for additional time to file a response or a cross-motion for summary judgment on the merits. Kelley and Bland subsequently filed a Motion for Summary Judgment along with a supporting brief and statement of facts (Doc. Nos. 87-89). Richardson filed a response, a brief in support, and a statement of disputed facts (Doc. Nos. 91-93). Kelley and Bland filed a reply (Doc. No. 94), and Richardson filed a response to their reply (Doc. No. 95). Having reviewed and considered all the pleadings, and for the reasons stated herein, the Court recommends that Richardson's Motion for Summary Judgment be denied and that defendants' Motion for Summary Judgment be granted.
Richardson is 30 years old. Doc. No. 88-1 at 2. Richardson has been housed in a single-man cell during the relevant period of time. Doc. No. 88-3 at 13. Richardson does not participate in activities or attend yard call. Doc. No. 88-3 at 23. Richardson is not diabetic. Doc. No. 88-3 at 20. Richardson is not hypertensive. Doc. No. 88-3 at 20. Richardson has no other significant medical problems other than the bilateral wounds on his ankles. Doc. No. 88-3 at 20; Doc. No. 88-4 at 2. Richardson previously filed a similar lawsuit regarding ankle wounds. See Richardson v. Kelley, et al, 5:12-cv-00250-BSM at Doc. No. 76 (dismissed on defendants' motion for summary judgment on the merits, where defendants presented expert testimony that Richardson's wounds were intentionally or incidentally contaminated with human feces) (E.D. Ark. April 16, 2014).
Richardson has been provided a number of different medications for pain related to his bilateral ankle wounds, including salsalate, ibuprofen, nortriptyline, naproxen and gabapentin. Doc. No. 88-4 at 2; Doc. No. 88-3 at 71. Richardson maintains that during the relevant period of time for this lawsuit, he was given gabapentin and two ineffective medications along with gabapentin. Doc. No. 93 at 2. Richardson also testified that Tylenol is available in the commissary but he did not attempt to purchase it because gabapentin was the only medication which was effective in treating his pain. Doc. No. 88-3 at 70, 76-77. However, gabapentin is not indicated for this sort of pain. Doc. No. 88-4 at 2. Treatment with gabapentin in this context is an off-label use. Id. Richardson notes that at least five doctors, including Dr. Stieve, prescribed gabapentin for his pain. Doc. No. 91 at 5.
Richardson has been provided with a number of diagnostic tests including x-rays (to explore the possibility of osteomyelitis), doppler studies (to explore the possibility of poor circulation), multiple wound cultures (to explore the wound for contamination such as bacteria and to determine which antibiotics may be indicated to treat any such bacterial infection) as well as numerous physical clinical exams. Doc. No. 88-4 at 2; Doc. No. 88-1. In addition, Richardson was provided with dressing changes; antibiotics; and other modalities designed to keep the wound clean and aid in healing. Doc. No. 88-4 at 2-3; Doc. No. 88-1. Some of the dressing changes and antibiotic treatments were missed as acknowledged in the response to Richardson's grievances (described below). Richardson was also transported to Little Rock on seven occasions between March 24, 2016, and May 23, 2016, for wound care at the Arkansas Heart Hospital Wound Center. Doc. No. 88-4 at 3; Doc. No. 88-2. Despite the above referenced clinical tests and treatments, Richardson's wounds would repeatedly scab over and heal and then again become open fresh wounds. Doc. No. 88-4 at 3; Doc. No. 88-3 at 18-19. Richardson believes his wounds reopen when his legs swell. Doc. No. 88-3 at 18. He testified that he believed his wounds were almost healed after treatment at the wound clinic because he received a compression dressing there that controlled the swelling. Id. at 27.
On various occasions, Richardson refused treatment call. Doc. No. 88-4 at 2; Doc. No. 88-3 at 102-103; Doc. No. 88-1 at 26, 29, 37, 38, 94 & 102. Richardson also refused a Rocephin injection (antibiotics). Doc. No. 88-3 at 103. Richardson testified he may have missed treatments if he was asleep or listening to his radio when the nurse came by. Doc. No. 88-3 at 53. Richardson's medical records reveal that his bandages were often loose, wet or otherwise contaminated. Doc. No. 88-4 at 2; Doc. No. 88-3 at 102-103; Doc. No. 88-1 at 33, 68, 71, 72, 79, 85, 91, 98, 120 & 129. The medical records show, and Richardson testified, that despite medical advice to the contrary, Richardson repeatedly used non-sterile coverings for his wounds, such as brown paper towels, tissues, bed sheets, t-shirts and towels. Doc. No. 88-4 at 3; Doc. No. 88-3 at 62-63. Richardson claims he was forced to do so because he was not provided with appropriate and timely dressing changes. Doc. No. 88-3 at 37, 58 & 63-64. Richardson testified that he is capable of bandaging his own wounds. Doc. No. 88-3 at 57 & 59. Richardson testified that band aids are available on the commissary. Doc. No. 88-3 at 58.
Dr. Stieve has opined that there is no indication that Richardson has a systemic infection or Dr. Stieve would have expected lesions to develop elsewhere on Richardson's body. Doc. No. 88-4 at 3. In Dr. Stieve's professional opinion, Richardson's wounds are the result of either deliberate or incidental contamination. Doc. No. 88-4 at 3. As was the case in the previous lawsuit, Richardson admits that E. coli was found in Richardson's wound during the relevant time period. Doc. No. 88-3 at 65. He believes the wounds are infected with E. coli while he is taking showers. Id. at 105. The organisms (bacteria from non-sterile sources) causing infection were recognized, assessed and treated. Doc. No. 88-4 at 3; Doc. No. 88-1; Doc. No. 88-2. Dr. Stieve opined that continued contamination by Richardson, after appropriate medical advice on sterile processes, had an adverse effect on the expected medical outcome. Doc. No. 88-4 at 3.
Richardson has no formal medical education or training. Doc. No. 88-3 at 12. Richardson testified that he does not know who was responsible for treatment call in 2015, but believes that Nurses Boatner and Hargrave were primarily responsible. Doc. No. 88-3 at 35-36. Kelley's position with ADC is Health Services Administrator, and he does not typically provide direct patient care. Doc. No. 88-4 at 1-2; Doc. No. 88-3 at 29-30. Richardson testified that Kelley did not provide him with direct patient care and was not responsible directly for doing dressing changes himself. Doc. No. 88-3 at 29-30.
Richardson testified that he cannot say what should have been done better in his medical case only that medical staff did not do what they were supposed to do. Doc. No. 88-3 at 118-119. It is Dr. Stieve's professional opinion that the medical care and treatment provided to Richardson has been appropriate and satisfactory for Richardson's complaints. Doc. No. 88-4 at 3. Dr. Stieve's conclusion is consistent with sound medical practices and his own professional judgment. Id. In Dr. Stieve's opinion, Richardson suffered no damage as a result of the medical care he received during the relevant period of time. Doc. No. 88-4.
Richardson submitted two grievances in November 2015 complaining about his ankle wound care. Doc. No. 82 at 87 & 91. Richardson specifically complained in Grievance VSM15-5079 that Bland refused to increase his gabapentin prescription from 300 mg to 600 mg. Id. at 91. Kelley responded with an outline of the medical care and pain prescriptions Richardson had received and found the grievances to be without merit because Richardson had been adequately treated. Id. at 88 & 92. With respect to Richardson's pain prescription, Kelley noted that his 600 mg gabapentin prescription expired July 25, 2015, and that Richardson had been seen four times with no new prescription for gabapentin until Dr. Stieve prescribed 300 mg gabapentin (three times daily) on October 22, 2015. Id. at 92. Kelley concluded that Bland did not reduce Richardson's prescription but simply continued the one prescribed by Dr. Stieve. Id.
Between November 28, 2015, and February 13, 2016, Richardson submitted 19 grievances complaining that he had not received treatment calls for dressing changes or medications. Id. at 2-8; 33-77, 82-86, 95-103.
Id. at 34, 37, 40, 43, 96.
By the time Kelley responded to these grievances on January 4, 2016, Richardson had missed 12 treatments. Kelley responded to a grievance submitted on December 12, 2015, on January 20, 2016, in relevant part:
Id. at 46. Kelley responded to three more grievances on February 1, 2016, stating in relevant part:
Id. at 49, 52 & 55. Kelley responded in a similar fashion to two more grievances on February 8, 2016. Id. at 61 & 64.
On February 16, 2016, after Richardson had filed seven more grievances for missed treatment calls since Kelley's January 4 responses, Kelley visited Richardson in his cell along with Nurse Boatner. Richardson wrote a grievance complaining that despite this visit, Kelley was doing nothing to correct the inadequate medical care he had been receiving. Id. at 104. Kelley responded, in relevant part:
Id. at 105.
Kelley subsequently responded to another grievance on February 19, 2016, in relevant part:
Id. at 70.
Kelley also responded to a grievance on February 19, 2016, stating in relevant part:
Id. at 73. Kelley responded to four more grievances between February 29, 2016, and March 21, 2016, finding those with merit. Id. at 76, 86, 99 & 102. Again, all of these grievances concerned missed treatments that occurred before February 13, 2016.
In the meantime, Richardson also filed grievances regarding other issues such as appointments, tests, and pain medication.
On December 27, 2015, Richardson wrote grievance VSM16-0005 stating that he had been told by a doctor that he would be seen again in two weeks after he finished oral antibiotics to have another culture performed, but he had not been seen in over two weeks. Id. at 57. Kelley responded on February 1, 2016, in relevant part: "A review of your medical record indicates you were seen on 12/14/15 by Mr. Capps for pain medications. There is no mention of following up in 2 weeks after finishing the antibiotics in the documentation. I find this grievance without merit." Id. at 59. Richardson appealed, and Rory Griffin responded, in relevant part:
Id. at 59.
On January 28, 2015, Richardson submitted a grievance complaining that despite receiving culture results indicating an infection and a notice that he would be seen by a doctor within three working days, he was not seen by the doctor until February 6, 2016, nine days after he receive the notice. Id. at 78. The regional ombudsman found the grievance with merit due to the delay completing Richardson's follow-up but resolved. Id. at 79.
On February 19, 2016, Richardson submitted a grievance complaining that Bland told him she would let his current pain medication expire and would not place Richardson on any pain medication at all. Id. at 119. Kelley responded:
Id. at 120. On February 29, 2016, Richardson submitted two inmate request forms to Kelley to inform him of Bland's conduct and her statement that she would not give him any more pain medication. Id. at 181-182. Richardson testified that his gabapentin prescription subsequently expired but was prescribed again by Dr. Capps on March 7. See Doc. No. 88-3 at 75-76. However, Richardson's medical records show that a gabapentin prescription issued on December 9, 2015, expired March 8, 2016. See Doc. No. 88-1 at 47. Richardson received a new gabapentin prescription on March 7, 2016. Id. at 87. A medication administration record indicates that Richardson may have missed one dose of gabapentin on March 9, 2016. Id. at 88.
Richardson's statement of facts also describes certain emails from Kelley that he obtained through discovery. See id. at 19 (citing Doc. No. 80-1). In those emails, Kelley acknowledged the grievances filed by Richardson and instructed staff to remedy the problems with missed treatment calls. On January 10, 2016, Kelley wrote:
Doc. No. 80-1 at 12. After receiving an email notifying Kelley that Richardson missed treatment calls on January 9 and 10, Kelley responded, "This has to be addressed." Id. On January 12, 2016, in response to his staff's reply that she would check on weekends to make sure Richardson received treatments, Kelley responded: "I want disciplinary action taken when it is not done. Make sure each treatment is clearly assigned to day shift on the weekends and make a set of instructions to be printed out on what EXACTLY has to be done. Thanks!" Id. On February 1, 2016, Kelley wrote:
Id. at 11. On March 16, 2016, Kelley wrote:
Id. at 6.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party's allegations must be supported by sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy. Id. (citations omitted). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).
Defendants maintain that the undisputed facts show that Richardson has not suffered an Eighth Amendment violation. Specifically, they assert that Richardson has no viable theory of recovery with respect to Kelley and that Richardson's medical records and the affidavit of Dr. Stieve establishes that Richardson received appropriate medical care for his complaints. The Court examines each of Richardson's claims below.
Richardson alleges he did not receive necessary medical treatment for his serious medical needs, and that Kelley had personal knowledge of these claimed constitutional violations through the grievance process but did nothing to correct the situation. Richardson also asserts that Kelley had a duty as supervisor of medical services to investigate the claimed constitutional violations of the medical care providers, and that his corrective inaction constituted deliberate indifference to Richardson's serious medical needs.
While there is no respondeat superior liability for § 1983 violations, see Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997), there are two circumstances in which supervisors may incur liability for cruel and unusual punishment. First, a supervisor can be liable if personally involved in a constitutional violation. Second, a supervisor can be liable for corrective inaction that amounts to deliberate indifference or tacit authorization of unconstitutional practices. Howard v. Adkison, 887 F.2d 134 (8th Cir. 1989); Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993). More specifically, a prison supervisor can be liable if he is aware that an inmate has not received constitutionally adequate medical care, and fails to take corrective action. See Schaub v. VonWald, 638 F.3d 905 (8th Cir. 2011). See also Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (even though supervisor was not a physician and did not treat inmates, he had constitutional duty to ensure inmates in his charge received needed medical care).
A review of the evidence submitted by Richardson shows that Kelley did in fact take corrective action in response to Richardson's grievances and that Kelley was not deliberately indifferent to Richardson's medical care. With respect to the first two grievances submitted by Richardson in November 2015, Kelley responded with an outline of what medical treatment Richardson had received and found that Richardson had been adequately treated. See Doc. No. 82 at 88 & 92. Because Kelley found no mistreatment, he had no reason to take corrective action at that point. Richardson then submitted 12 grievances regarding missed treatments between November 28, 2015, and January 3, 2016. See id. at 33-68, 95-97. Kelley responded to the first five on January 4, 2016, promising to take corrective action. See id. at 34, 37, 40, 43, 96. Following Kelley's January 4 response, Richardson missed seven more treatments during January and February, all on Fridays, Saturdays, or Sundays with the last missed treatment falling on February 13, 2016. See footnote 3, supra. On February 16, 2016, after Richardson had filed seven more grievances for the missed treatment calls since Kelley's January 4 responses, Kelley visited Richardson in his cell along with Nurse Boatner to discuss the missed treatments. In his response to Richardson's grievance regarding this meeting, Kelley informed Richardson that the missed treatments had occurred on the weekends, and that nursing assignments had been recently changed and that a more stringent procedure was put in place to resolve the problem. See Doc. No. 82 at 105. Richardson did not complain of any missed treatments after this meeting. In subsequent responses to grievances that had been filed prior to this meeting, Kelley instructed Richardson to request an interview with him to address the missed treatments sooner than the grievance process allowed. See id. at 70, 73, 76 & 86. Kelley found Richardson's grievances regarding other issues to be without merit, see id. at 59 & 120, and accordingly, no corrective action by Kelley was warranted.
Kelley's emails, obtained by Richardson through the discovery process and referenced in his statement of facts, show the actions Kelley took after learning of Richardson's missed treatments. On January 10, 2016, Kelley instructed staff to ensure the treatment call at VSM was clearly assigned to day shift on the weekends. See Doc. No. 80-1 at 12. Subsequent emails from Kelley on January 9, 10, and 12 emphasized the need to make sure Richardson received his treatments, with Kelley specifically stating that he wanted disciplinary action taken if Richardson's treatments were not done. See id. Kelley wrote again on February 1 stating that the issue was "a top priority and must be fixed ASAP" and that he wanted all charts audited so that any nurse not performing the treatments as assigned could be disciplined. Id. at 11. Finally, Richardson explained in his March 16 email that Richardson missed many treatments before Kelley became aware of the problem due to the delay in the grievance procedure — specifically, he stated "it was 30 days after the fact that I had been made aware of how bad the situation was." Id. Kelley also outlined what he had done to improve the weekend treatment calls and noted that Richardson had a consult with the wound clinic later that month. Id. Richardson was in fact seen by the Arkansas Heart Hospital's wound clinic seven times between March 24, 2016, and May 23, 2016. See Doc. No. 88-2.
In sum, once Kelley became aware of the many treatments Richardson had missed between late November 2015 and early January 2016, Richardson missed fewer treatments. He missed some treatments in January and early February on weekends while Kelley worked with nursing staff to ensure that Richardson missed no more treatments. The last missed treatment was on February 13, 2016, and Kelley visited Richardson with Nurse Boatner on February 16, 2016, to discuss new arrangements to ensure Richardson missed no more treatments. The grievances he submitted do not show that he complained of any missed treatments after that date, and he was subsequently sent to the Arkansas Heart Hospital for treatment. These facts do not support a finding that Kelley failed to take corrective action or was deliberately indifferent to Richardson's medical needs. Additionally, Richardson's medical records and the affidavit of Dr. Stieve
Richardson's claim against Bland is based on her failure to provide the medications he sought and his allegation that she misrepresented that his wounds were healed in June 2016 and canceled his orders to be treated at the wound clinic. See Doc. No. 2 at 20-22; Doc. No. 88-3 at 69-78. As stated earlier (footnote 3, supra), the June 2016 claim is subject to dismissal because Richardson did not fully exhaust his administrative remedies before filing this suit on August 5, 2016. See Doc. No. 82 at 124-127 (appeal response to VSM16-2020 regarding June 6, 2016 encounter with Bland is dated September 19, 2016).
Richardson alleges that Bland refused to increase his gabapentin prescription on November 13, 2015, from 300 mg to 600 mg. See Doc. No. 82 at 91; Doc. No. 88-3 at 69-72 (Grievance VSM15-5079). In his deposition, Richardson stated that on February 5, 2016, Bland told him she would not prescribe gabapentin any longer because inmates were abusing it. See Doc. No. 88-3 at 73. Richardson also alleges that on February 19, 2016, Bland threatened to take him off gabapentin, said that she would let his prescription expire in March, and said that she would not allow him any pain medication at all. See Doc. No. 2 at 10 & 20; Doc. No. 82 at 119 (Grievance VSM16-0692); Doc. No. 88-3 at 74-75.
The Eighth Amendment's proscription of cruel and unusual punishment obligates prison officials to provide adequate medical care to inmates in their custody. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). To succeed with an inadequate medical care claim, a plaintiff must allege and prove that: (1) he had objectively serious medical needs; and (2) prison officials subjectively knew of, but deliberately disregarded, those serious medical needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Additionally, the Eighth Circuit has held that a "prisoner must show more than negligence, more even than gross negligence, and mere disagreement with treatment decisions does not rise to the level of a constitutional violation." Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). See also Reid v. Griffin, 808 F.3d 1191, 1192 (8th Cir. 2015) (holding that an inmate's disagreement with "diagnosis and treatment decisions is not actionable under § 1983"); Popoalii v. Correctional Medical Servs., 512 F.3d 488, 499 (8th Cir. 2008) (disagreement with treatment decisions does not rise to the level of a constitutional violation); Rowe v. Norris, 198 Fed. Appx. 579, 580-81 (8th Cir. 2006) (no constitutional violation occurred where plaintiff disagreed with the treatment he received); Bender v. Regier, 385 F.3d 1133, 1337 (8th Cir. 2004) (holding that negligence in diagnosis or treatment of medical condition is not sufficient to establish a constitutional violation); Prater v. Dep't of Corr., 11 Fed. Appx. 668, 669 (8th Cir. 2001) (holding that plaintiff failed to establish deliberate indifference where plaintiff did not allege he was "denied, delayed or refused" treatment, only that specific treatment was not provided); Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (mere disagreement with the course of medical treatment is insufficient to state Eighth Amendment claim).
Richardson's claim against Bland fails as a matter of law. He has produced no evidence to support his claims that he was denied pain medication and has not controverted the medical records showing he received pain medication. Richardson's claim appears to be nothing more than a disagreement as to treatment; however, assuming he needed the gabapentin as the only effective medication for his wound pain, his medical records show that he received it. He may have liked a higher dose, but several doctors determined that 300 mg three times a day was appropriate. At no point did Bland reduce his medication or cancel his prescription. Further, any threat by Bland to do so does not equate a constitutional violation. Verbal insults or threats generally do not rise to the level of a constitutional violation. See Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992). The only exception to this rule is when a verbal threat rises to the level of a "wanton act of cruelty" such that the inmate is in fear of "instant and unexpected death at the whim of his allegedly bigoted custodians." Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir. 1986). The undisputed facts show that Bland is entitled to summary judgment as a matter of law.
For the reasons stated herein, Defendants' Motion for Summary Judgment (Doc. No. 87) should be GRANTED, and plaintiff Every Richardson's Complaint should be DISMISSED WITH PREJUDICE. Further, Richardson's Motion for Summary Judgment (Doc. No. 81) should be DENIED. The Court should certify that an in forma pauperis appeal taken from the order and judgment dismissing this action would be considered frivolous and not in good faith.
