Petition for Writ of Certiorari — Carlin U. Powell, Petitioner v. Medical Department Cuyahoga County Correctional Center, et al.

5508

Cupri me Court, U.S.

I 'l LO

IN THE

JUL 0 7 2019

SUPREME COURT OF THE UNITED STATES

Carlin U'

ioffip.F OF THE CLERK

— PETITIONER

(Your Name)

vs.

ftacSL- t&jmw&ff CVYAHocA CcvKTf

omcnoNAL octree. &, A

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Mil]BP sites CMZf OF APfBfiLS________ _____

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

r.arlm

U. (oiat^II

(Your Name)

R.C.T.

BO. Bo* 7010

(Address)

ChilliaUbc, (Qf-j 4-5&01

(City, State, Zip Code)

(Phone Number)

QUESTON(S) PRESENTED

(I)

Did the Medical Department of Cuyahoga County

Correctional Center et al., violate Plaintiff-Appellant

Carlin U. Powell’s VIII, XIV Amendments to the United

States Constitution in depriving of Powell of his rights

and privileges by acting with deliberate indifference,

causing cruel unusual punishment, medical neglect and

Ambleism?

(II)

Did the Medical department of Cuyahoga County

Correctional Center, et al., violate Article V (h) of the

Interstate Agreement on Detainers (IAD), and also in

violating terms of the (IAD) agreement on inmates’

medical care and treatment while in the custody and

jurisdiction of the receiving state in which indictments

or trial is being held.

LIST OF PARTIES

Medical Department Cuyahoga County Corrections Center’ Metro Health Systems;

Dr. John A. Yourself; Dr. Alan Gatz; Dr. Rekha Ujla; Dr. Albert Coreno; Dr. Leslie

Koblentz; Dr. Thomas Tallman; Marcus Harris Director of Inmate Health Service;

Cuyahoga County Medical Director; and the State of Ohio Department of

Rehabilitation and Correction Medical Director.

TABLE OF CONTENTS

Page #

OPINION BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4,5

REASONS FOR GRANTING THE WRIT

6-12

CONCLUSION

V

13

INDEX OF APPENDICES

APPENDIX A U.S. Court of Appeals Decision

APPENDIX B 1 and 2 (IAD) Agreement

APPENDIX C Article VOi)

APPENDIX D X-Ray photo of back/spine

APPENDIX E Exhibit A and C, request for medical help

APPENDIX F Grievance filed following Exhibit A request

APPENDIX G Request for X-Ray before physical therapy

APPENDIX H 1-3 Amendment addition to claim as it worsened

APPENDIX

I Teaching for (DVT) and (PE)

APPENDIX J Instruction on chest pain

APPENDIX K Symptoms of Angina

(

£A

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

JXf is unpublished.

1_ to

The . opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

/

court

The opinion of the_

to the petition and is

appears at Appendix

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

to

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was _41 OBj

______

jXf No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date: ___________

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and including_!____

in Application No. ___A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix______

[ ] A timely petition for rehearing was thereafter denied on the following date:

_____________________, and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date) in

to and including____

(date) on

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2.

TABLE OF AUTHORITIES CITED

Page #

Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 128, L. Ed. 2d. 811 (1994)

6.

Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir.

7,8

(2002)

8

• 8, 119, 10

10

10

10

11

11

11

12

12

12

12

Lamarbe v. Wisneski, 266 F.3d 429, 439 (6th Cir 2001)

Blackmore v. Kalamazoo Cntv.. 390 F.3d 890, 897 (6th Cir 2004)

Wood v. Housewright. 900 F.2d 1332, 1334 (9th Cir. 1990)

Hutchinson v. United States. 838 F.2d 390, 394 (9th Cir 1988)

Comstock v. McCray. 273 F.3d 693, 703 (6th Cir. 2001)

Caiozzo v. Foreman, 581 F.3d 63, 69

Hill v. Curcione. 657 F.3d 116, 122 (2nd Cir. 2011)

Talal v. White. 403 F.2d 423, 426 (6th Cir. 2005)

Strong v. David. 297 F.3d 646. 650 (7th Cir. 2002)

'Ashcroft v. LQbal, 556 U.S. 662, 678 (2009)

Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081

(2007)

Phillips v. Roane Cntv.. 534 F.3d 531, 536, 544 (6th Cir. 2008)

Gibson v. Moskowitz. 523 F. 3d 657. 662-663 (6th Cir. 2008)

STATUTES AND RULES

12

42U.S.C. $ 1983

Fed. R. Civ. P. 8(a)

8, 10

10

6, 7

OTHER

U.S. CONST. VIII Amendment

U.S. CONST. XIV Amendment

(IAD) and Article V (h)

3

STATEMENT OF THE CASE

Plaintiff- Appellant, Carlin U. Powell filed complaint pursuant 42 U.S.C. 1983

Against the Medical Department Cuyahoga County Correctional Center et. Al.,

on 6/12/2017.

Mr. Powell is physically impaired and is disabled. He has a history of deep

vein thrombosis/pulmonary embolisms in his lungs, arms, and legs. Mr. Powell

also has (Angina) in which also if not treated properly and, timely or neglected if

/

and when symptoms are identified or when embolisms accrue it may and can

lead to death. Mr. Powell were transferred from incarceration from North

Carolina to Cleveland Ohio pursuant Article III (A) of the Interstate Agreement

on Detainers.(IAD), Due to Mr. Powell's medical condition medications and

treatment. He could not be driven via the correctional institutions vehicle

transportation and therefore were flown via airplane to the Cuyahoga County

Correctional Center. (CCCC). Upon admittance of the (CCCC), Mr. Powell were

then seen by medical provider Dr. Alan Gatz, whom at that time refused to

provide Mr. Powell with any of his Dr. prescribed medication for his nerve and

Chronic pain care, and informed Mr. Powell that the medications prescribed to

him could not and would not be given to him while being incarcerated at the

(CCCC) and that he would just be out of luck being medications could not be

substituted due to Mr. Powell's allergies and other medication being taken at

/

that time. Mr. Powell were then assigned to a unit in which he were made to

4

sleep on a thin mattress and concrete floor for over five months weighing over

260 lbs., ignoring his bottom bunk restriction as were assigned. This was done

even knowing his medical history of deep vein thrombosis/pulmonary embolisms

(DVT), and (Angina). Mr. Powell's pleas for medical help and treatment were

continually ignored. Even after Mr. Powell's medical condition accrued

dangerously worsening so that it led to him being transferred to the medical

department and being placed on a medical unit due to extreme extremity swelling

of his left leg, ankle, and feet on 7/5/17, as well as back and breathing difficulties,

yet still Mr. Powell's medical needs were ignored being he were still not seen by a

Dr. for over one week. And again Mr. Powell still was not given any pain or nerve

medication for his chronic pain care from May 26, 2016 throughout February 23,

2018, for over twenty two months while being in incarceration of the (CCCC).

5

REASONS FOR GRANTING THE PETITION

On 5/26/ 2016, Plaintiff-Appellant Carlin U. Powell arrived at the Cuyahoga

County Correctional Center (CCCC). The constitutional violations of Mr. Powell's

constitutional rights continually accrued, from the disregarding, and ignoring of

his medical needs and conditions as well as the denial of his Dr. prescribed

medications in his chronic pain care. These were acts knowingly and willingly

committed, placing Mr. Powell's life in danger.

Mr. Powell's medical issues are sufficiently serious. "Farmer v. Brennan, 511

US. 825 „ 834,114, S. Ct. 1970. 128 L. ED 2d. 811 (1994). Pursuant Agreement of

the Interstate Agreement on Detainers (IAD). "An inmate should remain in

temporary custody in a suitable jail while awaiting prosecution in your

jurisdiction. See (Appendix A). Meaning that if the Dr. prescribed medication

being prescribed to Mr. Powell, could not continue to be prescribed to him while

/ -V

being incarcerated in the facility of the (CCCC), nor substituted due to the other

medications needed in the treatment and care of Mr. Powell's care. The (CCCC)

were not a suitable facility to house Mr. Powell while awaiting prosecution in the

jurisdiction of the Cuyahoga County. Dr.'s and personnel of the (CCCC), were

aware of Mr. Powell's medical issues prior to his arrival, being pre-arranged from

(q

vehicle transportation to being flown via airplane due to his medication, and

medical condition. Mr. Powell could have been held in another facility suitable for

his medical care while being held in the jurisdiction of the Cuyahoga County.

Pursuant: (IAD) Article V (h); "From the time that a party state receives custody of

a prisoner pursuant to this agreement until such prisoner is returned to the

territory and custody of the sending state, the state in which the one or more

untried indictments, information's or complaints are pending or in which trial is

being had shall be responsible for the prisoner and shall also pay all costs of

transporting, caring for, keeping and returning the prisoner, see (Appendix B).

This is an Article of the U.S. Treaty that has seemed to have been misunderstood.

The Supreme Court has stated that deliberate indifference to a risk is

equivalent to "recklessly disregarding that risk" or failing to take reasonable

measures to abate it. Id. At 836,847. The Sixth Circuit has also noted that in cases

involving medical care less flagrant conduct may constitute "deliberate

indifference", than in cases against other types of government officials. (Terrence

v. Northville {845, F, sup. 2d. 839} Reg'l Psychiatric hosp., 286 F. 3d 834, 843 (6th

Cir.2002). ***A prisoner is not required to show that hew was literally ignored by

7

the staff to prove an VIII Amendment violation, only that his serious medical

needs were consciously disregarded, "lamarbe v. Wisneski.. 266 F. 3d

429.439(6th cir.2001). Care that is "grossly inadequate" can also constitute

deliberate indifference. (Terrence, 286 f. 2d. at 843.

A serious medical need is one that is diagnosed by a physician as mandating

treatment or that is obvious that even a lay person would easily recognize the

necessity for a Dr.'s attention. " Harrison v. Ash, 539, F. 3d. 510, 518 (6th Cir.2008).

(citing Blackmore v. Kalamazoo Cntv.. 390 f,3d. 890. 897. (6th Cir. 2004). Dr.'s

personally witnessed serious risks through Mr. Powell's continuous complaints, as

well as his documented medical history, among other indications and pain risks

and incidents in which Mr. Powell were suffering. See(Appendix A/^.

In appellees affidavit filed; Doc # 51-1 filed: 06/29/18 Page ID# 430,431, and

433. The current Medical Director and defendant Dr. Thomas Tallman admitted in

his own statements; p.l Page ID#430- It was noted that all Dr.'s were aware of

Mr. PoWell having a history of pulmonary embolism (PE) and deep vein

thrombosis (DVT). As well as hypertension (high blood pressure. On p.2 Page ID#

431. Dr. then admitted to Dr.'s knowing that Mr. Powell had a history of chronic

8

back pain following spinal surgery. On p.4 Page ID# 433. Dr. then willingly

admitted that from May 26, 2016 through February 23,2018. Mr. Powell did not

receive any medication for his nerves and chronic pain care despite his several

pleas for medical treatment and medical condition accruing, worsening from the

neglect being suffered from the abliesm performed at this facility. See (Appendix

C,D, and E).

On 7/5/17, Mr. Powell were referred to the medical department by nurse

(Alfernik), being that his left leg, ankle, and feet were in extreme extremity

swelling, as well as his continual complaints of chest pain and breathing

difficulties. See (Appendix F 1-3). Mr. Powell were then seen by Rekha Ujla M.D.

at which time Dr. denied the request of emergency care, but felt medical

condition were critical enough that Mr. Powell was moved from regular

population to a medical unit 6F. Yet Mr. Powell's medical care and conditions

were still being ignored being that he were still not seen by a Dr. or medical

provider about is medical care for over one week. "Deliberate Indifference" is

established by showing; (a) a purposeful act or failure to respond to a prisoner's

pain or possible medical need, and. (b) harm caused bv the indifferent to a

prisoner's serious medical needs if they "deny, delay, or intentionally interfere

with medical treatment. "Wood v. Flousewroight, 900 F. 2d. 1332,1334 (9th

<\

cir. 1990. (QUOTING Hutchinson v. United States, 838 F. 2d. 390, 394 (9th Cir.

1988). Both these prongs has been continually met. Rekha Ujla witnessed

extreme extremity swelling, witnessed the complaints of serious pain, knew of

Mr. Powell's medical history of pulmonary embolism (PE) and deep vein

thrombosis (DVT) as well as his Angina, yet Emergency request was denied and

Mr. Powell were placed in a secluded cell were he were not seen by any Dr. for

over one week. Defendant's subjectively perceived a risk of harm to Mr. Powell

and disregarded and ignored it continually. " Comstock v. Me crav. 273, F. 3d. 693,

703, (6th Cir.2001). An inference , if actually made and then disregarded, can

constitute " deliberate indifference". Id. At 837. Similarly a prison official may "

not escape liability" if the evidence show that he/she merely refused to verify

underlying facts that he/she strongly suspected to exist. Id. At 843. See Appendix

Gl, G2, and G3. One who is detained " prior to conviction "receives protection

against mistreatment...(urider) the Due Process Clause of the Fourteenth

Amendment of the U.S. Constitution, if held in state custody. "Caiozzo, 581 F. 3d.

at 69", just as with a claim under the Eighth Amendment. To establish an

objectively "serious medical condition", the alleged deprivation must be

sufficiently serious, in the sense that condition of urgency one that may produce

death, degeneration, or extreme pain exit's. Hill v. Curcione. 657 f. 3d. 116. 122

(2nd Cir.2011) (internal quotations marks and citation omitted)

Mr. Powell's history of pulmonary embolisms and (DVT) in his arms, legs and

lungs can lead to death. His spinal surgery having to get up and down and

sleeping on a concrete floor for over five months weighing over 260 Lbs. can

cause bone degeneration. And Mr. Powell continually complained of extreme

pain. The VIII amendment forbids prison officials from unnecessarily and wantonly

inflicting pain on a prisoner by acting with "deliberate indifference" to the

prisoner's serious medical needs. (Talal v. White, 403. F. 3d. 423, 426 (6th

Cir2005). (Quoting Blackmore v. Kalamazoo Cnty, 390 F. 3d. 890,895 (6th Cir.2004).

As Mr. Powell's medical neglecting accrued he continually made known unto

the courts as well as Dr.'s these systemic constitutional violations worsening. A

grievance suffices if it alerts the prison to the nature of the wrong for which

redress is sought "quoting Strong v. David. 297 F. 3d 646. 650 (7th Cir.2002).

Denial and refusal of Mr. Powell's medication for his chronic pain and nerve care

for over twenty two months after causing him physical duress by the medical

treatment and neglect of the (CCCC) is cruel and unusual punishment, medical

neglect,deliberate indifference with ableism combined. Claim has facial

11

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendants are liable for the misconduct

alleged. "Ashcroft v. Lqbal, 556. U.S. 662. 678. (2009). The plaintiff Appellant has

given fair notice to the defendants of what the ... claims is and the grounds upon

which it rests. "Erickson v. Pardus 551. U.S. 89. 93. 127 S. Ct. 2197 167 L. Ed. 2d.

1081 (2007) (citations omitted). When the defendants failed to consider more

effective alternatives or where the alleged shortcomings involve violations of

protocol or failures of process that is when there was no "medical judgment" to

speak of the courts gives less difference to the medical treatment provider. See

eg., "Phillips v. Roane Cnty., 534 F. 3d. 531, 536, 544 (6th Cir. 2008). (allowing

claim to proceed against Dr. who knew of patients prior collapse's, violated

protocol in not taking her to the hospital, and failed to follow up for test he had

ordered, and whose medical records were unacceptable and examination was

cursory. 'Gibson v. Moskowitz, 523 F. 3d. 657, 662-63 (6th cir.2008).

Fed. R. Civ. P.8 (a), requires that a pleading which sets forth a claim for

relief... contain 1) a short and plan statement of the grounds upon which the

courts jurisdiction depends....2) a short and plan statement of the claim showing

that the pleader is entitled to relief, and 3) a demand for judgment for the relief

the pleader seeks.

12.

CONCLUSION

This requirement the Supreme Courts has strictly enforced has been

strongly met and shall be proper. Therefore based on the forgoing fcts,

and reasons previously set forth in the plaintiff-appellant’s complaints

and amendments, documentation in argument in law raised and

established. Plaintiff - Appellant Carlin U. Powell request the court for

judgment in his favor granting him the sum courts feel are adequate for

the pain and suffering in which has ben clearly stated as claimed. The

petition for a writ of certiorari should be granted.

Respectfully submitted this ^ day of July 2019

PLAINTIFF - APPELLANT

13