Opinion
Civil Action No: 99-2009 Section: "D"(2)
January 25, 2001
Before the court are the following motions:
(1) "Motion for Summary Judgment" filed by Defendants (various prison officials and employees) seeking dismissal of Plaintiff's medical indifference claim asserted under the Eighth Amendment; and
(2) "Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted" filed by Defendant Richard Stalder, the Secretary of the Department of Public Safety, Department of Corrections.
Plaintiff, Oscar Berthelot, opposes these motions. The motions were set for hearing on Wednesday, January 24, 2001, on which date the court heard oral argument from counsel. Having considered the memoranda and argument of counsel and having reviewed the applicable law, the court now rules.
Plaintiff is represented by the Tulane Law Clinic.
I. Background
Plaintiff suffered from complications of diabetes while incarcerated at Washington Correctional Institution (WCI). On September 18, 1998, Plaintiff's left leg was amputated below the knee at Medical Center of Louisiana at New Orleans (MCLNO). After his surgery, Plaintiff returned to WCI with a MCLNO recommendation and referral for prosthetic devices.
At WCI, Plaintiff was provided with crutches and a wheelchair. Plaintiff also received limited physical therapy, and Plaintiff received a stump shrinker or knee immobilizer but not until seven months following surgery. However, at WCI, he never received a prosthetic leg and he alleges that he was not allowed to buy one at his own expense.
The wheelchair was purportedly taken away for security reasons for approximately a week.
Following his release from WCI on or about December 4, 1999, Plaintiff obtained a prosthesis through Medicare.
In his Amended Complaint, Plaintiff claims:
37.
(A) By failing to provide Plaintiff with adequate physical therapy, a timely stump shrinker and knee immobilizer, and a prescribed prosthesis defendants exhibited deliberate indifference to plaintiff in contravention of plaintiff's right to be free from cruel and unusual punishment secured by the Eight Amendment to the United States Constitution and 42 U.S.C. § 1983.
(B) Defendants exhibited reckless disregard for plaintiff's welfare, causing him physical and psychological injuries, by failing to secure him with prompt physical therapy, a prosthetic sleeve, a knee immobilizer, and a prosthesis.
(C) Defendants exhibited reckless disregard and deliberate indifference for plaintiff's welfare by denying him the necessary medical treatment, namely physical therapy and a prosthesis, and plaintiff suffered repeated and continuous physical, psychological, and emotional injuries due to defendants' actions in this regard.
(Amended Complaint, Doc. No. 51).
Plaintiff has named as Defendants: Richard Stalder, the Secretary of the Louisiana Department of Public Safety and Corrections; Edward Day, the Warden of WCI; Kathy McGinnis, a registered nurse and Director of Nursing/Hospital Administrator at WCI; Robert Tanner, Deputy Warden at WCI; Dr. Arshad (no first name given), a physician at WCI; Sherlene Boler, a social worker at WCI; and Mary Faciane, a social worker at WCI. (See Plaintiff's Amended Complaint, Doc. No. 51, ¶¶ 6-12; and Defendants' Statement of Undisputed Material Facts, pp. 1-2).
In their memoranda now before the court, both Plaintiff and Defendants discuss "Defendant Bessie Carter" (a registered nurse and Assistant Director of Nursing at WCI). However, Bessie Carter is not named as a Defendant in Plaintiff's original or Amended Complaint. Counsel conceded this fact at oral argument.
II. Legal Analysis
In their instant motions, Defendants claim they are entitled to qualified immunity on Plaintiff's medical indifference claim. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727. 2738, 73 L.Ed.2d 396 (1982); Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).The bifurcated test to determine whether a defendant is entitled to qualified immunity is: (1) whether the plaintiff has alleged a violation of a clearly established constitutional right; and (2) if so, whether the defendant's conduct was objectively reasonable in the light of clearly established law at the time of the incident. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).
Here, Defendants concede that "plaintiff's right to adequate medical treatment under the Eighth Amendment was clearly established at the time of plaintiff's complaints." (Defendants' Memo. at 11). A However, Defendants argue that their conduct was objectively reasonable
At oral argument, counsel for Defendants cited to the court the recent Fifth Circuit decision, Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000), for the proposition that "in determining whether a right is clearly established, we are confined to precedent from our circuit or the Supreme Court." Id. at 915. However, Shipp also instructs that:
To show that a right is clearly established, the plaintiff does not have to refer to precedent that is directly on point, or that declares that the conduct in question is unlawful. Rather, the right is clearly established if based on pre-existing law, the unlawfulness of the conduct in question is apparent. . . . In other words, the right is clearly established if its "contours . . . [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . Additionally, we conduct a "snapshot" inquiry by canvassing the legal rules that were clearly established at the time of the official's alleged improper conduct.Id.
Under Fifth Circuit precedent, "It is clear that a state official who knowingly deprives a prisoner of vital medial treatment violates constitutionally protected rights". Williams v. Treen, 671 F.2d 892, 901 (5th Cir. 1982), citing, Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The court explained that:
This is neither a recent nor a novel proposition of constitutional law. If we review the case law as it existed at the time of the violation, we find that this right was already "clearly established". Courts consistently held that while mere negligence in giving or failing to supply medical treatment would not support an action under Section 1983, a knowing and willful failure to provide or permit a prisoner access to needed medical care would violate clearly established constitutional rights.Williams, 671 F.2d at 901.
In Newman v. Alabama, 503 F.2d 1320, 1331 (5th Cir. 1975), the unavailability of eyeglasses and prosthetic devices, inter alia, in state penal system warranted findings of constitutional inadequacy under either the Eighth Amendment or the due process clause. Here, Plaintiff alleges in part that Defendants were "deliberately indifferent" to his serious medical needs of prosthetic devices. Such conduct, if proved, would constitute a violation of clearly established rights. Accord decisions outside Fifth Circuit, Johnson v. Hardin County, 908 F.2d 1280, 1283-84 (6th Cir. 1990)(defendant's refusal to provide inmate with crutches supported claim of deliberate indifference); Taylor v. Plaousis, 101 F. Supp.2d 255 (D.N.J. 2000) (former jail detainee's deteriorating prosthesis which caused pain and mobility problems was serious medical need); Kaufman v. Carter, 952 F. Supp. 520, 527 (W.D.Mich. 1996)("A medical condition that threatens one's ability to walk, even if ultimately reversible, is unquestionably a serious matter."); Ford-Bey v. Sciubba, 1987 WL 17565 (E.D.Pa. 1987)(inmate's allegations that prison officials ignored inmate's requests for repair of prosthetic leg stated a claim of deliberate indifference).
in providing plaintiff with physical therapy, orthopedic clinic appointments, amputee clinic appointments, providing him with devices to enable him to move around WCI, and providing him with the prosthetic devices necessary for his condition. It was not medically necessary for plaintiff to receive a prosthesis and there is no indication in the record that it was medically necessary. Plaintiff simply wanted this device.
(Defendants' Memo. at 18).
Plaintiff does not dispute that at WCI he received a stump shrinker and knee immobilizer, which may be considered prosthetic devices. (See Plaintiff's Statement of Material Facts in Dispute, n. 3). However, Plaintiff did not receive his stump shrinker until April 7, 1999, approximately 7 months after his amputation. (Plaintiff's Ex. C, Affidavit of Dr. Ewing, ¶ 27).
Dr. Ewing is a board certified family physician and associate professor of Family and Community Medicine at the Tulane Medical School. The court finds that as a family physician, Dr. Ewing has the expertise to decipher Plaintiff's medical records and to the extent that she has done so in her Affidavit the court has considered her testimony accordingly. For purposes of ruling on Defendants' Motion for Summary Judgment, the court has not considered any conclusory, subjective opinions Dr. Ewing has given based upon her decipherization.
Defendants argue that "[s]tump shrinkage or shaping of the stump for use of a prosthesis should begin within two weeks to three months after the staples are removed and the stump is healed." (Defendants' Memo. at 14). Defendants provide no support for this assertion, but they continue to argue that Plaintiff received the shrinker "within the three-month timeframe". ( Id. at 15).
Plaintiff was not fitted for the knee immobilizer until April 14, 1999. He needed the knee immobilizer because he was developing knee flexion contracture, an abnormal fixed position of a joint in a bent fashion. (Dr. Ewing's Affidavit, ¶ 30).
Finally, Defendants do not dispute that Plaintiff never received a prosthetic leg or sleeve while he was incarcerated at WCI. However, WCI admits that it had a policy to provide inmates prostheses "when the health of the inmate would otherwise be adversely affected as determined by the responsible physician." (Plaintiff's Exhibit A, Defendants' Answer to Plaintiff's Interrogatory No. 1). And Plaintiff's medical records reflect that the WCI medical staff (in particular, Dr. Boulet) concurred with the MCLNO's recommendation and referral that Plaintiff receive prosthetic devices.
Dr. Boulet is not a named Defendant in this litigation.
In their Statement of Undisputed Material Facts, Defendants claim that: "On June 10, 1999, staff physicians at WCI made the determination that plaintiff's medical condition would not be adversely affected by the lack of a prosthesis." (Defendants' Statement of Undisputed Material Facts, p. 13). However, Defendants have offered no evidence in support of this statement.
Construing the record in a light most favorable to Plaintiff, the court concludes that there are genuine issues of material fact regarding whether the actions and/or inactions of Defendants Richard Stalder, Ed C. Day, Jr., Kathleen McGinnis, Sherlene Boler, and Mary Faciane were objectively reasonable in attending to Plaintiff's serious medical need for prosthetic devices. The court further finds that as to each of these Defendants, Plaintiffs has sufficiently specified factual information as to what each Defendant did or failed to do in attending to Plaintiff's serious medical need. Thus, these Defendants are not entitled to summary judgment dismissal of Plaintiff's medical indifference claim on the basis of qualified immunity.
See Plaintiffs Amended Complaint, Plaintiffs Opposition Memorandum and Statement of Material Facts in Dispute, Plaintiff's Affidavit attached to Plaintiff's Opp. as Ex. B, and Affidavit of Dr. Ewing attached to Plaintiffs Opp. as Ex. C; see also, Medical Records and letter from Warden Day to Plaintiffs representative dated 11-9-98 included in Record, Doc. No. 30.
With regard to Defendants Stalder and Day, the court recognizes that supervisory officials cannot be held liable for the actions of subordinates under any theory of vicarious liability. Rather, a supervisor may be held liable only if he is personally involved in the alleged constitutional deprivation or there is a sufficient causal connection between the supervisor's alleged wrongful conduct and the constitutional violation. Lozano v. Smih, 718 F.2d 756, 768 (5th Cir. 1983).
Here, the record reflects that in June 1999 or thereafter, Plaintiff wrote Congressmen Richard Baker and William Jefferson for outside help, and they forwarded Plaintiffs letters to Secretary Stalder, who in turn instructed Warden Day to look into the matter and respond. Warden Day did indeed respond by letter to both Congressman. Thus, both Defendants Stalder and Day had direct personal participation in Plaintiffs case. Under the circumstances presented by Plaintiffs amputated leg and his need for prosthetic devices, the court finds that there exists genuine issues of material fact as to whether or not these Defendants' actions and inactions were objectively reasonable, though the case regarding Secretary Stalder is a close call.
As to Defendants McGinnis, Boler and Faciane, the court finds that there are genuine of issues of material fact as to whether or not their hands-on actions and inactions as a nurse and social workers, respectively, were objectively reasonable.
However, with regard to Defendants Robert Tanner and Dr. Arshad, the court finds that Plaintiff has failed to sufficiently specify factual information as to what these Defendants did or failed to do in attending to Plaintiff's serious medical need. Thus, these Defendants are entitled to summary judgment dismissal of Plaintiff's medical indifference claim.
III. Conclusion
For reasons set forth above,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of Defendants, Richard Stalder, Ed C. Day, Jr., Kathleen McGinnis, Sherlene Boler, and Mary Faciane, be and is hereby DENIED; IT IS FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of Defendants, Robert Tanner and Dr. Arshad, be and is hereby GRANTED, dismissing Plaintiff's medical indifference claim against them;
IT IS FURTHER ORDERED that the Motion to Dismiss for Failure to State a Claim for Failure to State a Claim Upon Which Relief Can Be Granted filed by Defendant Stalder be and is hereby DENIED.