Leavy v. Chardonay Dialysis Co.

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

MICHAEL LEAVY PLAINTIFF

v. Civil No. 6:16-CV-06124

CHARDONAY DIALYSIS CO. and NURSE DEFENDANTS

ABRAH ELLIS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions

of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States District

Judge, referred this case to the undersigned for the purpose of making a Report and

Recommendation.

Currently before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 38).

I. BACKGROUND

Plaintiff filed his Complaint on December 7, 2016, alleging he was denied adequate

medical care by Defendants, resulting in the loss of sight in his left eye.1 (ECF No. 1; 42 at 2).

Plaintiff has End Stage Renal Disease,2 and undergoes dialysis3 three times a week. (ECF Nos.

40 at ¶ 2; 42 at 10). His allegations center on the dialysis he was given by Defendant Ellis, an

1 Based on the medical record supplied by Plaintiff, he lost vision in his right eye because of trauma in 1974. (ECF

No. 42 at 10). The loss of vision in his left eye, allegedly from the current incident, therefore resulted in the loss of

all or most of his vision.

2 Chronic kidney or renal disease “is long-standing, progressive deterioration of renal function. Symptoms develop

slowly and in advanced stages include anorexia, nausea, vomiting, stomatitis, dysgeusia, nocturia, lassitude, fatigue,

pruritus, decreased mental acuity, muscle twitches and cramps, water retention, undernutrition, peripheral

neuropathies, and seizures. . . .Treatment is primarily directed at the underlying condition but includes fluid and

electrolyte management, blood pressure control, treatment of anemia, various types of dialysis, and kidney

transplantation.” https://www.merckmanuals.com/professional/genitourinary-disorders/chronic-kidney-

disease/chronic-kidney-disease. (last accessed July 20, 2018).

3 Hemodialysis, commonly referred to as dialysis, is a process where “blood is removed from the body and filtered

by an artificial kidney machine.” https://www.merckmanuals.com/home/kidney-and-urinary-tract-

disorders/dialysis/dialysis. (last accessed July 20, 2018).

employee of Defendant Chardonay, on January 14 and 16, 2015, while incarcerated in the

Arkansas Department of Correction Ouachita River Unit (ORU). (ECF No. 1 at 3-4). Plaintiff

alleges he did not meet the criteria for dialysis on Wednesday, January 14, 2015, because his blood

pressure was too high, his blood count and body weight were too low, and he told Defendant Ellis

he did not feel well. (Id.). Despite these health complaints, Defendant Ellis insisted on

administering dialysis. Plaintiff alleges he fell asleep and woke to Defendant Ellis placing cold

towels on his face and injecting him with saline to cool him down. He told Defendant Ellis his

vision was blurry, and he had a headache. She told him to return to the barracks and rest. (Id.).

He alleges Defendant Ellis did not monitor his blood pressure during the dialysis. (Id. at 4).

Plaintiff alleges a dialysis patient next to him said it looked as though he had been having a seizure

before he was awakened. (Id.).

On Friday, January 16, 2015, Plaintiff alleges he went to dialysis and told Defendant Ellis

that his condition had not changed and was again given dialysis. (Id. at 4). He was told to rest in

the barracks after dialysis. That night at approximately 8:00 p.m. his sight was getting worse, and

he was instructed by the ORU hospital to put in a sick-call request. (Id.). Plaintiff was then assisted

to the phone, where he called his mother and told her what had happened. The next morning

Plaintiff was unable to see when he awoke. (Id.).

Plaintiff alleges he was taken upstairs to the ORU Hospital, and then sent to St. Vincent’s

Hospital in Little Rock. On admission at St. Vincent’s, his blood pressure was “near stroke level,”

and his blood count was so low that he needed four pints of blood. (Id.) Plaintiff alleges a

physician at St. Vincent’s told him he should not have been on the dialysis machine. (Id.).

When Plaintiff was returned to ORU hospital, he was seen by Dr. McKinney, who stated

he should not have been placed on the dialysis machine. Dr. McKinney told Plaintiff and his

family that he would arrange for him to be seen at the Jones Eye Clinic. (Id.) Plaintiff alleges the

physician there told him the damage to the nerves around his eyes meant that he had an eighty-

percent chance of never regaining his vision. Plaintiff alleges the physician told him he had

suffered a stroke due to high blood pressure, which had caused the damage. He alleges the

physician told him he should not have been placed on the dialysis machine with his high blood

pressure. (Id. at 5).

Plaintiff alleges any policy by Defendant Chardonay which permitted a dialysis nurse to

initiate dialysis on a patient with high blood pressure and low blood count is unconstitutional. (Id.

at 6).

Plaintiff proceeds against both Defendants in their official and personal capacity. (Id. at

5). He seeks punitive damages. (Id. at 6).

Defendants filed their Motion for Summary Judgment on January 29, 2018. (ECF No. 38).

On January 30, 2018, the Court entered an Order directing Plaintiff to file a Response to the

Motion. (ECF No. 41). Plaintiff did so on March 2, 2018. (ECF No. 42). On March 6, 2018, the

Court entered a Show Cause Order directing Plaintiff to file a Statement of Disputed Facts. (ECF

No. 43). Plaintiff filed a Statement of Disputed Facts on March 22, 2018. (ECF No. 46).

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), the record "shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

"Once a party moving for summary judgment has made a sufficient showing, the burden rests with

the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a

genuine issue of material fact exists.” National Bank of Commerce v. Dow Chemical Co., 165

F.3d 602, 607 (8th Cir. 1999).

The non-moving party "must do more than simply show that there is some metaphysical

doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient

evidence to support a jury verdict in their favor." National Bank, 165 F.3d at 607 (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "A case founded on speculation or suspicion is

insufficient to survive a motion for summary judgment." Id. (citing, Metge v. Baehler, 762 F.2d

621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

III. ANALYSIS

Defendants argue summary judgment should be granted in their favor because: (1) Plaintiff

failed to exhaust his administrative remedies; and (2) even if Plaintiff had exhausted his

administrative remedies, there is no evidence of deliberate indifference. (ECF No. 39 at 6-13).

Plaintiff argues summary judgment should not be granted because: (1) the grievance

process was unavailable to him; and (2) Defendant Ellis “totally disregarded” his reports to her

concerning his health and failed to document “vital elements of medical importance.” (ECF No.

42 at 1-2).

A. Failure to Exhaust Administrative Remedies

There is no dispute that Plaintiff’s grievance concerning his January 2015 dialysis was not

filed until October 22, 2015. There is also no dispute that this grievance was filed several months

past the required deadline under AD 14-16, the ADC Directive controlling grievance procedures.

(ECF No. 39 at 7; 42 at 2). Therefore, unless Plaintiff’s situation qualifies for an exception to the

mandatory exhaustion requirement, his claim is barred.

The Prison Litigation Reform Act (“PLRA”), mandates exhaustion of available

administrative remedies before an inmate files suit. Section 1997e(a) of the PLRA provides: “[n]o

action shall be brought with respect to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42 U.S. C. § 1997e(a).

In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court concluded that “exhaustion [as

required by the PLRA] is not per se inadequate simply because an individual later sued was not

named in the grievances.” Id. at 219. “[T]o properly exhaust administrative remedies prisoners

must complete the administrative review process in accordance with the applicable procedural

rules.” Id. at 218 (internal quotation marks and citation omitted). The Court stated that the “level

of detail necessary in a grievance to comply with the grievance procedures will vary from system

to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.” Id.

The Eighth Circuit Court of Appeals recognizes only two exceptions to the PLRA

exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance

procedures; or, (2) when the officials themselves fail to comply with the grievance procedures.

See Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (citing Miller v. Norris, 347 F.3d 736 (8th

Cir. 2001) (explaining that a prisoner is only required to exhaust those administrative remedies

that are available and any remedies that prison officials prevent a prisoner from utilizing are not

considered available)). “Available remedies are capable of use for the accomplishment of a

purpose: immediately utilizable and accessible.” Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015)

(internal quotations and modifications omitted). The Eighth Circuit has repeatedly held that a

court is not permitted “to consider an inmate’s merely subjective beliefs, logical or otherwise, in

determining whether administrative procedures are ‘available.’” Lyon v. Vande Krole, 305 F.3d

806, 809 (8th Cir. 2002) (citing Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.2000), cert. denied,

531 U.S. 1156 (2001).

Both Plaintiff and Defendants center their exhaustion argument on the language of AD 14-

16 (D)(1) “Completion of Forms:”

Inmates who have difficulty understanding how to complete the grievance forms or

actually completing the forms should request and be provided assistance from staff.

However, there is no prohibition against an inmate seeking assistance from another

inmate IF the grievant has language barriers or cannot read or write.

(ECF Nos. 39 at 7; 40 at 41; 42 at 2) (emphasis in original).

Plaintiff argues the grievance process was unavailable to him. Plaintiff states he was

housed in the ORU Hospital for several months after the incident and asked for assistance with

filing his grievance from nurses, mental health counselors, and hospital security staff to no avail.

(ECF No. 42 at 1). He alleges that on October 15, 2015, he received assistance in writing a

“Request for Interview” to Warden Faust, asking for help with his problem. Plaintiff alleges he

received a response from Warden Faust on October 19, 2015, stating he could seek assistance from

staff and other inmates to complete a grievance. (Id. at 2). Plaintiff then sought and received

assistance from another inmate and filed his grievance a few days later. (Id.). Plaintiff states the

grievance was rejected as untimely. He appealed this response, and the appeal response affirmed

the grievance was untimely. (Id.).

In sum, Plaintiff argues that he was not able to complete the form on his own and did not

know it was permissible to seek help from another inmate to complete a grievance form until he

was informed of this option by Defendant Faust. The plain language of the policy defeats this

argument, as it clearly states an inmate may seek aid from another inmate if he or she cannot read

or write. Here, Plaintiff alleges he could not read or write due to his vision loss. While the alleged

failure of ORU hospital staff to provide aid in writing a grievance is troubling, the plain language

of the policy permitted him to seek the aid of another inmate. That Plaintiff incorrectly believed

he could not do so did not make the grievance process unavailable to him.4 See Lyon, 305 F.3d at

809 (a court is not permitted “to consider an inmate’s merely subjective beliefs, logical or

otherwise, in determining whether administrative procedures are ‘available.’”).

Taking Plaintiff’s allegations in the light most favorable to him, he failed to exhaust his

administrative remedies, and his case is therefore barred. There is no question of material fact on

this issue, and Defendants are entitled to summary judgment as a matter of law.

B. Deliberate Indifference to Medical Needs

Even if Plaintiff had qualified for an exception to the exhaustion requirement, he failed to

provide sufficient summary judgment evidence to establish deliberate indifference to his medical

needs.

The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate

indifference to prisoners’ serious medical needs. Luckert v. Dodge County, 684 F.3d 808, 817 (8th

Cir. 2012). To prevail on his Eighth Amendment claim, Plaintiff must prove that Defendants acted

with deliberate indifference to his 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

4 The Court notes that Plaintiff’s submissions to this Court have been typewritten, complete, and overall well-

prepared.

needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132

F.3d 1234, 1239 (8th Cir. 1997)).

To show that he suffered from an objectively serious medical need Plaintiff must show he

“has been diagnosed by a physician as requiring treatment” or has an injury “that is so obvious

that even a layperson would easily recognize the necessity for a doctor’s attention.” Schaub v.

VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (internal quotations and citations omitted). The

objective seriousness of any delay in treatment must be measured by reference to the effect of

delay, which must be shown by verifying medical evidence in the record. Laughlin v. Schriro, 430

F.3d 927, 929 (8th Cir. 2005).

For the subjective prong of deliberate indifference, “the prisoner must show more than

negligence, more even than gross negligence, and mere disagreement with treatment decisions

does not give rise to the level of a constitutional violation.” Popoalii v. Correctional Med. Servs,

512 F.3d 488, 499 (8th Cir. 2008) (internal citation omitted). “Deliberate indifference is akin to

criminal recklessness, which demands more than negligent misconduct.” Id.

It is well settled that a “prisoner’s mere difference of opinion over matters of expert medical

judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation.”

Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal quotation marks and citations

omitted). An “inmate must clear a substantial evidentiary threshold to show the prison’s medical

staff deliberately disregarded the inmate’s needs by administering inadequate treatment.” Id.

Despite this, issues of fact exist when there is a question of whether or not medical staff exercised

independent medical judgment and whether the decisions made by medical staff fell so far below

the reasonable standard of care as to constitute deliberate indifference. See Smith v. Jenkins, 919

F.2d 90, 93 (8th Cir. 1990).

Plaintiff argues his loss of sight was caused by Defendant Ellis administering dialysis when

his physical condition contraindicated dialysis, thereby causing his vision loss. He further argues

he was told by physicians at the ORU Hospital, St. Vincent’s Hospital, and the Jones Eye Clinic

that he should not have been placed on dialysis. Plaintiff’s sole medical submission to support

these arguments is a January 20, 2015, medical record from St. Vincent’s. Nothing in this medical

record states that he should not have been placed on dialysis or attributes his vision loss to his

dialysis treatment. Dr. Byron, an ophthalmologist, noted significant atherosclerosis and

arteriovenous nicking present in the optic blood vessels, as well as edema and hemorrhages in the

optic nerve. He concluded that “the tempo of vision loss indicates either a vascular or

inflammatory etiology. In the setting of his ESRD5 and severe hypertension and anemia on

admission, I suspect he has had a complete infarction of his optic nerve.” He informed Plaintiff

that the likelihood of his regaining vision was low, and he would need to be followed by a low

vision specialist in the future. (ECF No. 42 at 10). He referred Plaintiff to Dr. Dworkin for further

studies to rule out the inflammatory etiology. (Id. at 10-11). The anemia was attributed to

“ESRD/chronic disease.” (Id. at 11).

In contrast, Defendants provided medical documentation that Plaintiff’s vital statistics

were taken before each dialysis treatment, and blood pressure readings were taken throughout each

dialysis treatment. (ECF No. 40 at 15, 20). Plaintiff complained of a stomachache and diarrhea

before the January 14, 2015, dialysis session, and terminated the treatment early against medical

advice. (ECF No. 40 at 15, 18). In his affidavit, Dr. Muhammad Kashif, a board-certified

nephrologist for Defendant Chardonay, stated Plaintiff met the criteria for dialysis on both dates.

5 End Stage Renal Disease, https://www.merriam-webster.com/medical/ESRD (last accessed July 16, 2018).

He further stated Plaintiff exhibited no need for emergency treatment, and he would have ordered

it if so indicated. (ECF No. 40 at 8-10).

Without objectively verifiable medical evidence to support his arguments, Plaintiff has

failed to clear the substantial evidentiary threshold needed to show Defendants deliberately

disregarded his medical needs. Instead, he merely states a layperson’s speculative disagreement

with the medical treatment provided, which is not actionable under § 1983. See Nelson, 603 F.3d

at 449 (“prisoner’s mere difference of opinion over matters of expert medical judgment or a course

of medical treatment fail[s] to rise to the level of a constitutional violation.”) (internal quotation

marks and citations omitted)).

There is, therefore, no question of material fact on this issue, and Defendants are entitled

to summary judgment as a matter of law.

IV. CONCLUSION

Accordingly, I recommend that Defendants’ Motion for Summary Judgment (ECF No. 38)

be GRANTED and Plaintiff’s claims against all Defendants in this case be DISMISSED WITH

PREJUDICE.

The parties have fourteen days from receipt of the Report and Recommendation in

which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 24th day of July 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE