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May v. Hetzel

United States District Court, S.D. Alabama, Southern Division

September 17, 2014

DERIC LAVELLE MAY, Plaintiff,
v.
GARY HETZEL, et al., Defendants.

REPORT AND RECOMMENDATION

BERT W. MILLING, Jr., Magistrate Judge.

This is an action under 42 U.S.C. § 1983 brought by an Alabama prison inmate, Deric LaVelle May, proceeding pro se and in forma pauperis, which has been referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is now before the undersigned on the Motion for Summary Judgment of Defendants, Gary Hetzel, Penny Emmons, James Smith, and Ashley Wall, and Plaintiff's Response thereto.[1] (Docs. 18, 24, 25, 26). After consideration of these pleadings and motions, the evidence submitted by the parties, and for the reasons set out below, it is recommended that Defendants' Motion for Summary Judgment be granted and Plaintiff's claims against Defendants be dismissed with prejudice.

I. Facts and Proceedings

On April 3, 2014, Plaintiff filed his original Complaint, alleging a constitutional breach in the standards of his medical care regarding his VP shunt due to his long-standing condition of hydrocephalus. (Doc. 1). Though Plaintiff has been deemed a three-striker under the Prison Litigation Reform Act, the Court discerned through a liberal reading of his Complaint that Plaintiff met the imminent danger of serious physical injury exception to § 1915(g), and thereby was allowed to proceed in forma pauperis on his present medical care claims.[2] (Doc. 3). Because the Court acknowledges that hydrocephalus can be a serious medical condition, and because Plaintiff contends in his Complaint that Defendants interfered with his attempts to schedule sick calls for his malfunctioning shunt, the Court served the named Defendants; however, due to Plaintiff's admission that Defendant Hetzel acted without a culpable state of mind, he was dismissed from this action. (Docs. 3, 1 at 11).

On July 7, 2014, Plaintiff filed a Motion For Leave to File an Amended Complaint (Doc. 8), which was denied for failure to attach the proposed amended complaint to the Motion. (Doc. 13). Defendants' Special Reports each address the original Complaint, [3] and, given the Court's denial of said Motion to Amend, the original Complaint will stand as the document on which the Court resolves Plaintiff's claims.

Turning to the Complaint, the Court finds the facts to be as follows. Taking judicial notice of its records, the Court relies on May v. Patterson, 11-675-KD-B, which sheds relevant background on Plaintiff's condition and amenability (or lack thereof) to adequately provided medical care. In Patterson, Defendants' motion for summary judgment was ultimately granted and Plaintiff's case dismissed with prejudice.

As demonstrated in May v. Patterson, Plaintiff has a longstanding condition, hydrocephalus, for which he has received ample care-ample care which he fails to disclose in his present Complaint. In 1990, to accommodate his hydrocephalus, a ventriculoperitoneal ("VP") shunt was implanted to relieve the excessive buildup of cerebrospinal fluid, which occurs in excess as a result of hydrocephalus. (Doc. 69 at 1-2). Plaintiff has been incarcerated at Holman Correctional Facility ("Holman") since March 14, 2008. Since then, and leading up to the resolution of Patterson, Plaintiff received multiple treatments and extensive care for his VP shunt, including but not limited to CT scans of his head, multiple consultations with prison and non-prison radiologists and neurologists, and x-rays, all of which ultimately culminated into a recommendation for shunt-corrective surgery by Dr. Quindlen, a board certified neurosurgeon located in Mobile, Alabama. (Doc. 69 at 2-6). After receiving the recommendation for surgery, Plaintiff repeatedly refused to allow Dr. Quindlen to perform the surgery because Dr. Quindlen was not his surgeon of choice and he questioned whether Dr. Quindlen was following medical protocol. (Doc. 69 at 7).

To the Court's knowledge, the shunt revision has not been performed since it was recommended by Dr. Quindlen and refused by Plaintiff in 2010. Based on the amount of coherent filings with which Plaintiff has peppered the Court since the resolution of Patterson, it appears Plaintiff is coping with his condition just fine. Notwithstanding, the Court does acknowledge that hydrocephalus is a serious medical condition and a malfunctioning shunt can deteriorate to the extent that denial of meaningful medical care could rise to the level of deliberate indifference, which is what Plaintiff alleges occurred in this action.

Regarding Defendant Emmons, Plaintiff alleges that she disregarded the institution's criteria and recommended that Plaintiff remain at a shelter that caused the degeneration of his health issues. ( Id. at 11). Plaintiff alleges that Holman lacks the policies and procedures related to the treatment of his shunt and that "Defendants do not have the ability to learn or retain adequate information concerning [his] VP shunt malfunction, " thereby creating a violation of the Eighth Amendment's cruel and unusual punishment clause. ( Id. at 9). Plaintiff proposes that "inmates with medium custody in general population or segregation are to be assigned to Easterling, Ventress, Bullock or Kilby." ( Id. at 11). He also states that remaining at Holman threatens his physical and general wellbeing. ( Id. ).

As for Defendant Smith, Plaintiff contends that when he asked for medical care due to the alleged worsening state of his shunt, that Defendant Smith interfered with the sick call procedures by ripping off the back of the form and giving it back to Plaintiff. (Doc. 1 at 8). Plaintiff alleges that Smith's conduct caused his health and welfare to be neglected, and thus rises to the level of an Eighth Amendment violation. ( Id. at 6). This is the only allegation against Defendant Smith.

Regarding Defendant Walls, Plaintiff contends that once he was finally taken to the health care unit by another shift, Defendant Walls deceived him by indicating that this was not a sick call issue. ( Id. at 8). This is likewise the only allegation against Defendant Walls, which Plaintiff maintains rises to the level of an Eighth Amendment violation. Plaintiff alleges he signed up for sick call again the next day and the institution neglected to ensure that he was taken to sick call. ( Id. at 11).

In response to Plaintiff's Complaint, Defendants Smith and Emmons filed their Answer and Special Report generally denying all of Plaintiff's allegations. (Docs. 23, 24). Specifically, Defendant Emmons states that as a Classification Specialist, she has little information regarding the medical conditions of inmates, as HIPAA laws generally prevent her from obtaining inmate medical records other than health codes necessary to classify inmates. (Doc. 24-2 at 2). Other than information that Plaintiff provided himself in his pre-sentence investigation in 2002, [4] Defendant Emmons has never been aware of any of his medical conditions. ( Id. ). Over the intervening twelve years, however, it appears that Plaintiff's health has improved given that his health code classification as of February 18, 2014, was a level "1, " which is defined as "generally healthy, stable, manages self-care and is compliant with medications." ( Id. ). Plaintiff's mental health code at that time was a level "0, " which is defined as "no identified need for mental health assistance, receives crisis intervention services when indicated and can participate in ADOC programs as available." ( Id. at 2-3).

Based on Plaintiff's health codes, Defendant Emmons was not alerted to a medical or mental health issue that needed addressing in his February 2014 review. Additionally, if a medical transfer becomes necessary, a member of the medical staff initiates the transfer for those medical reasons. ( Id. at 3). A medical transfer is not initiated by a Classification Specialist, such as Defendant Emmons. ( Id. ).

Furthermore, addressing Plaintiff's request to be housed at another facility, Defendant Emmons attests that Plaintiff is classified at a security level of "5, " which means that he must be housed at a prison that accommodates level "5" inmates. ( Id. ). Defendant Emmons would not have recommended a transfer to any of Plaintiff's requested facilities because none of them accommodate inmates at his security level. Easterling, Ventress and Bullock are all level "4" facilities; whereas Kilby is a "Receiving and Classification Center, " which means that it "serves as receiving and initial classification facility for male inmates entering ADOC as well as parole violators being returned to custody." ( Id. ). Defendant Emmons denies violating Plaintiff's Eighth Amendment rights. ( Id. ).

Defendant Smith likewise denies Plaintiff's allegations and attests that he did not interfere with Plaintiff being taken to sick call. (Doc. 24-1 at 1-2). Smith works the night shift, which does not conduct sick call. When Plaintiff presented with a sick call slip, Defendant Smith followed standard procedure by giving Plaintiff the carbon copy of his sick call slip for his records, and left the nurse's copy of the slip on the sick call list. ( Id. ). Plaintiff even admits that he was escorted to sick call the next day by another shift that conducts sick call. (Doc. 1 at 8).

Defendant Wall is a Licensed Practical Nurse at Holman, and likewise denies Plaintiff's allegations of cruel and unusual punishment. (Docs. 18, 18-1, 18-2). As noted above, the allegation against Defendant Wall is that she deceived Plaintiff by indicating that this was not a sick call issue, and that, on the next day, Plaintiff signed up for sick call again, but the institution neglected to ensure he was taken to sick call. (Doc. 1 at 8). Defendant Wall reviewed Plaintiff's medical records since September 9, 2013, which are attached to her Special Report. (Docs. 18-1, 18-2). Defendant Wall states that, though she does not have any specific recollection of the facts at issue, the Director of Nursing at Holman, Bennie Andrews, does and he has submitted an affidavit and the relevant medical records necessary for the Court to determine if Plaintiff was provided with adequate medical care. Those medical records indicate that the only time Defendant Wall ...


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