Brown v. Assoc. Warden G. Cooper

Decision Date11 December 2018
Docket NumberCiv. No. 18-219 (DSD/BRT)
PartiesJames N. Brown, Jr., Plaintiff, v. Associate Warden G. Cooper; Ken Hyle, Asst. Director; Sara Revell, Regional Director; Kathleen Kenney, Gen. Counsel; L. LaRiva, Warden; L. Janssen, R.N.; C. Orum, Unit Manager; R. Woltman, Unit Counselor; FNU Sanson; A. Cossette, Unit Manager; D. Holbus, Lieutenant; C. Stromberg; FNU Hare; Peter Arroyo; Charles Slater, MD; Sheila Hadaway, MD; Misbah Baqir, MBBS; Mayo Clinic; M. Porter, R.N., Supervisor; T. Miller, Captain; and the United States of America, Defendants.
CourtU.S. District Court — District of Minnesota

James N. Brown, Jr., Plaintiff,
v.
Associate Warden G. Cooper; Ken Hyle,
Asst. Director; Sara Revell, Regional Director;
Kathleen Kenney, Gen. Counsel; L. LaRiva, Warden;
L. Janssen, R.N.; C. Orum, Unit Manager; R. Woltman,
Unit Counselor; FNU Sanson; A. Cossette, Unit Manager;
D. Holbus, Lieutenant; C. Stromberg; FNU Hare;
Peter Arroyo; Charles Slater, MD; Sheila Hadaway, MD;
Misbah Baqir, MBBS; Mayo Clinic; M. Porter, R.N.,
Supervisor; T. Miller, Captain; and the United States of
America, Defendants.

Civ. No. 18-219 (DSD/BRT)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

December 11, 2018


REPORT AND RECOMMENDATION

James Brown, Reg. No. 44935-424, Federal Medical Center, P.O. Box 4000, Rochester, MN 55903, pro se Plaintiff.

Andrew Tweeten, Esq., and Erin M. Secord, Esq., Assistant United States Attorneys, counsel for Defendants.

Vanessa J. Szalapski, Esq. and William R. Stoeri, Esq., Dorsey & Whitney LLP, counsel for Defendant Mayo Clinic.

BECKY R. THORSON, United States Magistrate Judge.

Pro se Plaintiff James Brown brings claims related to his medical treatment at the Federal Medical Center in Rochester, Minnesota. (Doc. No. 21, Am. Compl.) Plaintiff alleges that the Defendants in this action violated his federal and constitutional rights in a

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variety of ways, including by giving him insufficient supplemental oxygen, confiscating his motorized wheelchair and forcing him to use a manual wheelchair, and refusing his request for a lung transplant.1 Plaintiff brings claims against two groups of Defendants: the Federal Defendants2 and the Mayo Defendants.3 (See id.) Both groups of Defendants move to dismiss, or in the alternative, for summary judgment. (Doc. Nos. 63, 82.) For the reasons stated below, this Court recommends that the motions be treated as summary-judgment motions and be granted.4

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I. Background

A. Parties to this Litigation

Plaintiff is serving a 120-month term of imprisonment for Conspiracy to Distribute Heroin. (Doc. No. 116, Declaration of Jake Bush ("Bush Decl.") ¶ 3, Ex. A.) He arrived at FMC Rochester on April 19, 2016, as a transfer from the Federal Correctional Institution in Pekin, Illinois. (Doc. No. 86, Declaration of Sheila Hadaway ("Hadaway Decl.") ¶ 4, Ex. A.)

The Federal Defendants are current or former employees of the Federal Bureau of Prisons, all of whom were acting within the scope of their employment at the time of the conduct alleged in the Amended Complaint. (Doc. No. 26, Declaration of Ana Voss.) The Mayo Defendants are the Mayo Clinic and Dr. Baqir, who is employed at the Mayo Clinic.

B. Allegations Against the Federal Defendants

Plaintiff is a thirty-five-year-old African-American male who has been diagnosed with Acute Fibrinous Organizing Pneumonia ("AFOP") secondary to Diffuse Alveolar Damage Disease ("DAD"), as well as Avascular Necrosis ("AVN"). (Am. Compl. 4.) He claims that he is confined to his bed or wheelchair (motorized scooter) for more than fifty percent of his waking hours and requires assistance with most of his daily living activities. (Id.)

Plaintiff alleges that upon his arrival at the 9/3 Housing Unit at FMC-Rochester, Defendant Stromberg forced Plaintiff to be strip searched without any medical assistance. (Id. at 5.) Plaintiff also claims that Defendants Stromberg and Porter placed him in a

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Special Housing Unit ("SHU") cell without supplemental oxygen, which is required for his medical needs. (Id.) When Plaintiff asked for an administrative remedy form to file a grievance for this conduct, Defendant Hare allegedly ordered Defendant Stromberg to write an incident report against Plaintiff for disobeying a direct order. (Id.) Also according to Plaintiff, Defendant Janssen issued a "false and misleading" incident report after being told by Defendant Woltman that Plaintiff had submitted an administrative remedy against Defendant Janssen for staff misconduct. (Id. at 4.)

Plaintiff further alleges that he was moved from the medical SHU to the general population SHU, even though Defendants Dr. Hadaway and Dr. Slater knew that Plaintiff's medical needs could not be met in the general population. (Id. at 6.) Plaintiff claims that he lost consciousness and suffered severe chest pain and shortness of breath due to the lack of oxygen. (Id. at 6-7.) Plaintiff claims to have been in the general population SHU for thirty days. (Id. at 7.)

Plaintiff also alleges that his motorized cart was seized, and when he was released from the general population SHU, he was only given a manual wheelchair, which was difficult to use because of the pain in his shoulders due to AVN. (Id. at 7-8.) As a result, Plaintiff claims that he was forced to get around "the best way he could, and in sub-zero temperatures." (Id. at 7.) Plaintiff also alleges that other property was seized, leaving him with nothing to keep himself warm. (Id.)

In addition, Defendant Dr. Slater allegedly ignored the Mayo Clinic's recommendation in August 2017 for an MRI regarding Plaintiff's AVN, instead ordering an x-ray. (Id.) Also, under Defendant Dr. Hadaway's supervision, Defendant Slater

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allegedly denied Plaintiff pain medication because he was a drug seeker. (Id. at 8.) Defendants Dr. Hadaway and Dr. Slater also allegedly blocked Plaintiff's access to a lung transplant. (Id.)

Finally, Plaintiff alleges that Defendants LaRiva, Hyle, and Kenney wrongfully denied his request for a compassionate release. (Id. at 9.) He claims that the BOP grants compassionate releases to white and Hispanic inmates at a greater rate than African-American prisoners. (Id.) And since the filing of this lawsuit, Plaintiff alleges that he has been "continually harassed, targeted and threatened with being transferred and more time in the SHU" if he doesn't stop filing grievances. (Id. at 9-10.)5 Plaintiff claims that Defendant Miller confronted him in the dining hall and asked "What is this that you are suing me for 7 million dollars? Who do you think you are?" (Id. at 9.)

C. Allegations Against the Mayo Defendants

Plaintiff alleges that he received treatment at the Mayo Clinic from Dr. Baqir, that Dr. Baqir recommended in August 2017 that Plaintiff should have an MRI and should see an orthopedist, and that Dr. Baqir's recommendation was ignored. (Id. at 7-8.) Plaintiff also alleges that the Mayo Defendants, along with Defendants Dr. Slater, Dr. Hadaway, and the BOP "have consistently blocked" him from "receiving a lung transplant, without such the plaintiff will soon die." (Id. at 8.) Plaintiff asserts that because he is incarcerated,

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he has been "constantly told that he would not get a transplant while in BOP custody." (Id. at 8-9.)

D. Plaintiff's Medical History at FMC-Rochester

1. Plaintiff's Medical Conditions

When Plaintiff arrived at FMC Rochester in April 2016, he had ongoing problems with coughing, shortness of breath, tachycardia, hypertension, and weight loss, believed to be caused by interstitial lung disease of an unknown origin. (Hadaway Decl. ¶ 5, Ex. B.) He also suffered from hyperthyroidism, diabetes, gallstones, rashes, and a hernia. (Id.) Plaintiff experienced shortness of breath with minimal exertion and used supplemental oxygen. (Id.) After his initial examination of Plaintiff, Defendant Dr. Slater ordered numerous labs, a chest x-ray, CT Scan, a Holter Monitor, and consultations with Pulmonology, Rheumatology, and Endocrinology at Mayo Clinic. (Id.) Over the next year, Plaintiff underwent extensive evaluations at Mayo Clinic and was ultimately diagnosed with acute fibrinous organizing pneumonia of uncertain etiology. (Id. ¶ 6, Ex. C.) His condition was eventually stabilized with medications, including CellCept, an immunosuppressant, and prednisone. (Id.)

2. Supplemental Oxygen

Patients who need supplemental oxygen can receive it via wall oxygen, an oxygen concentrator, and a portable oxygen concentrator. (Hadaway Decl. ¶ 7.) At FMC Rochester, the oxygen flow can be set at a rate of up to fifteen liters per minute for a wall oxygen unit, six liters per minute on an oxygen concentrator, and two liters per minute on a portable oxygen concentrator. (Id.) Two housing units—9/2 and 9/3 inpatient medical

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units—have wall oxygen concentrators. (Id.) The goal of supplemental oxygen is to keep the patient's oxygen saturation levels above 90%. (Id.)

As Plaintiff's acute fibrinous organizing pneumonia stabilized with treatment, Mayo Clinic encouraged FMC Rochester to evaluate his need for supplemental oxygen to get him on lower rates yet still maintain appropriate oxygen saturation levels. (Hadaway Decl. ¶ 8, Ex. D.) Defendant Dr. Slater noted on March 10, 2017, that Plaintiff's dependence on oxygen might be psychological, and therefore, he prescribed Ativan as needed to assist with any anxiety Plaintiff would experience during the downward titration. (Hadaway Decl. ¶ 8, Ex. C at 4.) From August 2017 to December 2017, Plaintiff's oxygen saturations remained at or above the 90% target saturation rate. (Hadaway Decl. ¶ 9, Ex. E.)

On October 19, 2017, Plaintiff submitted an electronic request to staff asking Defendant Dr. Slater why he was removed from wall oxygen. (Hadaway Decl. ¶ 10, Ex. F.) Defendant Dr. Slater responded to him, indicating that his oxygen concentrator supplied him with a sufficient oxygen flow of at least two liters per minute to maintain oxygen saturations of approximately 96%-100% and therefore, he did not need the additional oxygen flow provided by the wall oxygen units. (Id.) By letter dated October 31, 2017, Mayo Clinic agreed with Dr. Slater that Plaintiff did not need oxygen at rest, he primarily need it upon exertion. (Hadaway Decl. ¶ 11, Ex. G.)

When Plaintiff was placed into the SHU on December 4, 2017, he was initially provided an oxygen concentrator, which was kept outside his locked cell door with the oxygen tubes running under the door. (Hadaway Decl. ¶ 12.) His oxygen saturations

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remained above 90% during this time. (Id. ¶ 12, Ex. E at 3-4.) Further,...

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