Lee v. McManus

• Decision Date: 15 July 1982
• Docket Number: Civ. A. No. 82-3128.
• Parties: Robert D. LEE, Plaintiff, v. Patrick D. McMANUS, Secretary, Kansas Department of Corrections; Gary D. Rayl, Warden, Kansas State Penitentiary at Lansing; and, State of Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

543 F. Supp. 386

Robert D. LEE, Plaintiff, v. Patrick D. McMANUS, Secretary, Kansas Department of Corrections; Gary D. Rayl, Warden, Kansas State Penitentiary at Lansing; and, State of Kansas, Defendants.

Civ. A. No. 82-3128.

United States District Court, D. Kansas.

July 15, 1982.

Fred Phelps, Jr., Shirley L. Phelps, Phelps-Chartered, Topeka, Kan., Ethel Louise Bjorgaard, Bonner Springs, Kan., for plaintiff.

Joseph Fast, Asst. Atty. Gen., Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This is a civil rights action filed on June 17, 1982, brought pursuant to 42 U.S.C. § 1983, § 1988, and 28 U.S.C. § 1343, with jurisdiction also asserted under 28 U.S.C. § 1331. Plaintiff herein, a paraplegic currently incarcerated at the Kansas State Penitentiary, Lansing, Kansas, seeks money damages and injunctive relief on the ground that defendants have "continued to confine him without providing reasonably necessary, adequate, and proper medical care, psychiatric/psychological, and rehabilitative care and treatment; all in violation of the Eighth and Fourteenth Amendments."

This matter is presently before the court upon plaintiff's motion for a temporary restraining order. On June 30, 1982, the court heard evidence upon plaintiff's motion. Plaintiff appeared in person and by his counsel, Fred Phelps, Jr., Shirley L. Phelps and Ethel Louise Bjorgaard. Defendants appeared by their attorney, Joseph Fast, Assistant Attorney General, State of Kansas. Both parties were afforded sufficient notice of the hearing so that witness testimony and other evidence was presented and confronted by each side. Given the adequate notice and presentation of substantial evidence, and absent objection of counsel, the court converted this proceeding into a motion and hearing for preliminary injunction. The court heard arguments and took the matter under advisement until July 7, 1982, to allow the parties to submit briefs, counter affidavits or additional evidence. Plaintiff's "post-hearing brief" and defendants' "memorandum in opposition to plaintiff's application for preliminary injunction" with attached exhibits and the Kansas State Penitentiary medical records on plaintiff have since been received and reviewed by the court. Defendants' motion to file their memorandum and brief one day late is hereby granted.

Having heard and considered all the evidence submitted and arguments of counsel, the court finds the issues in favor of plaintiff's application for a preliminary injunction and determines that a preliminary injunction, more specifically set out hereafter, should be entered in this case.

For purposes of the preliminary injunction, the following discussion constitutes the findings of fact and conclusions of law pursuant to Rule 52, Fed.R.Civ.P.

The gravamen of plaintiff's complaint is that defendants are causing him to be subjected to cruel and unusual punishment by denying him necessary medical care in violation of the Eighth Amendment, made applicable to the states by the Fourteenth. Plaintiff seeks preliminary injunctive relief, specifically, to prevent further denial of the medical care prescribed for him by medical specialists who have treated him for his paraplegia.

Plaintiff, Robert D. Lee, was convicted on September 1, 1981, in the District Court of Wyandotte County, Kansas, of voluntary manslaughter and arson. On December 13, 1981, he was confined in a cell with three other prisoners at the Wyandotte County Jail, when a guard appeared and without warning fired a gun through the cell bars striking plaintiff with a bullet in the spine. Plaintiff was taken to the University of Kansas Medical Center hereinafter Med Center where surgery was performed upon him and he was treated within the rehabilitation service. As a result of this spinal cord injury, plaintiff is a permanent and total paraplegic from about the waist down. Plaintiff was discharged from the Med Center on January 29, 1982, and is currently an inmate at the Kansas State Penitentiary, Lansing, Kansas. Defendants are the State of Kansas, the Secretary of the Kansas Department of Corrections and the Director of the Lansing penitentiary.

At the hearing on plaintiff's application for a preliminary injunction, the affidavit of Dr. Karl K. Targownik, Medical Director of the Kansas Department of Corrections and Clinical Director of the Kansas Reception and Diagnostic Center, was admitted wherein he states that he is familiar with plaintiff's condition and circumstances as well as the facilities available for plaintiff's care and treatment within the Kansas State Penitentiary, and within the Kansas correctional system generally. Dr. Targownik further states that:

... it is his opinion to a reasonable medical certainty: (a) that KSP does not presently have the facilities and staff to provide adequate medical care and treatment to Mr. Lee; (b) that such facilities are not presently available anywhere within the Kansas correctional system; (c) that Mr. Lee is not presently receiving adequate medical care and treatment and, (d) that Mr. Lee will suffer loss thereby.

Dr. Targownik informs the court that the Kansas Neurological Institute in Topeka is equipped to provide plaintiff with adequate medical care and is available to receive plaintiff upon proper notice.

Among the post-hearing materials submitted by defendants is what may be described as Dr. Targownik's counter affidavit to his own affidavit. Dr. Targownik states in this subsequent document that he did not know when he signed the first affidavit that plaintiff had filed this lawsuit, that his only purpose was to help plaintiff get released on probation or receive better medical care, that he had not reviewed the daily medical records prepared at KSP, examined plaintiff, talked with the treating physicians or visited the prison infirmary in over a year. This counter affidavit is similar to the testimony given by Dr. Jain and Mr. Doweiko at the hearing in that it recants earlier statements that plaintiff could not receive proper medical care at Lansing. It is not clear why the purpose to be served by the affidavits or statements should alter the professional judgments of these state employees as to the availability of medical care. In essence, each of these men is now saying that his previous, unambiguous statement observing a lack of adequate medical care for plaintiff at Lansing should be disregarded for purposes of this lawsuit because he actually had no factual basis or expertise upon which to form the expressed opinion. The court finds that this counter evidence is not specific as to whether plaintiff is receiving adequate medical treatment. The original statements taken together with the recantations indicate at most that these three witnesses either doubt that or do not know whether plaintiff is receiving adequate medical care.

Dr. John V. Redford, Chairman of the Department of Rehabilitation at the Kansas University Medical Center, who was plaintiff's treating physician in the rehabilitation service following surgery, testified at the hearing. Dr. Redford stated his prognosis that plaintiff's legs are totally paralyzed for life. He also specifically described the major medical problems from which plaintiff presently suffers as a result of his paraplegia: neurogenic (no control) bladder, neurogenic bowel, loss of skin sensation, and abnormal reflexes or spasticity of the lower limbs causing stiffening of the joints. Dr. Redford explained that plaintiff had developed a very deep decubitus ulcer (bed sore) all over his back while at the Med Center which worsened at the penitentiary and as a result of which he was returned to the Med Center for specialized treatment. Similar sores have developed on plaintiff's shins as a consequence of his being shackled while at the Med Center. Dr. Redford additionally delineated other complications such as kidney damage, infection, and contracture of joints which might arise if plaintiff is not provided adequate medical attention and care.

To counteract the medical problems already suffered by plaintiff and to prevent further complications, a colleague of Dr. Redford's at the Med Center, Dr. George Varghese, who had also treated plaintiff, prescribed specific care and treatment to be provided following discharge. Instructions as to the provision of this treatment were written in a letter to the Medical Director at the Lansing penitentiary. The letter was admitted as exhibit # 7 at the hearing. The prescribed treatment includes daily range of motion exercises which need not be performed by a physical therapist, but which cannot be done by plaintiff alone; daily irrigation and bi-weekly replacement of catheter; daily cleaning of catheter opening with antibiotic ointment; stool softeners and suppositories administered every other day with assistance in using the commode; daily fluid intake of 3000 cc; daily skin bathing and check for possible breakdown; daily changing of shin bandages and washing of sores with hydrogen peroxide.

Plaintiff testified that he has not received daily range of motion exercises during his confinement at Lansing and that his joints have stiffened. Dr. Redford confirmed stiffening of the joints as well as more spasticity upon his last examination of plaintiff on June 27, 1982. Plaintiff further testified that his catheter has been changed only once since his return to KSP and that the opening is not cleaned each day. Nor is he given the ointment or gauze with which to attend to this task himself. Plaintiff also testified that he has received two suppositories since his return to Lansing, that he has had only two bowel movements in that time; that these occurred in his bed because the prison does not have toilet facilities for paraplegics; and that he has had to lie in stool and urine for up to four hours before he was cleaned. Plaintiff additionally testified that he is provided only one pitcher of water per day, and...