Rogers v. Kwarteng
| Decision Date | 21 May 2021 |
| Docket Number | Civil Action 2:18-CV-421 |
| Parties | WILLIAM ROGERS Plaintiffs, v. ISAAC KWARTENG, et al, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
MEMORANDUM AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff William Rogers is a Texas inmate appearing pro se and in forma pauperis. In this prisoner civil rights action, Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Pending before the Court is a Motion for Summary Judgment filed by Defendants Dr. Isaac Kwarteng and Dr. Brian O'Donnell. (D.E. 97). For the reasons stated herein, it is respectfully recommended that the Court grant this summary judgment motion.
The Court has federal question jurisdiction over this civil action pursuant to 28 U.S.C. § 1331. This case was referred to the undersigned United States Magistrate Judge for case management and to furnish a recommendation pursuant to 28 U.S.C. § 636.
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID) and is currently housed at the McConnell Unit in Beeville, Texas. In this civil rights action, Plaintiff sues the following defendants: (1) Dr. Isaac Kwarteng; (2) Physician Assistant (PA) Susanna Corbett; (3) Medical Provider M. Goyel; (4) John Doe Medical Director from Region IV, University Texas Medical Branch (UTMB); and (5) the UTMB. Plaintiff alleges that Defendants acted with deliberate indifference to his serious medical needs by failing to treat his serious diabetic condition with Lantus[1] instead of Humulin and Novolin N (NPH)[2] insulin twice a day. Plaintiff seeks injunctive relief in the form of receiving proper long-acting insulin like Lantus for his diabetes to prevent future harm and appropriate medical care for his related eyesight issues.
Plaintiff subsequently filed a motion seeking immediate preliminary injunctive relief in which he asked the Court to direct Defendants to: (1) treat him immediately with Lantus; (2) provide him with surgery to stop his retinal bleeding in both eyes caused by blood sugar spikes; and (3) appoint him counsel. (D.E. 6). On January 8, 2018, Plaintiff filed a motion for emergency injunction, reiterating that he seeks immediate treatment of his diabetes with Lantus to stop his sugar spikes. (D.E. 20). Senior United States District Judge Hilda G. Tagle subsequently denied Plaintiff's motions seeking preliminary and/or emergency injunctive relief. (D.E. 44).
A Spears[3] hearing was held on December 20, 2018, where Plaintiff was given an opportunity to explain his claims. On April 15, 2019, the undersigned issued a Memorandum and Recommendation (M&R), recommending that the Court retain only Plaintiff's Eighth Amendment deliberate indifference claims seeking injunctive relief against Dr. Kwarteng and John Doe Medical Director be retained. (D.E. 35). Judge Tagle adopted the recommendation. (D.E. 116). The undersigned ordered service of Plaintiff's complaint on Dr. Kwarteng and John Doe Medical Director (collectively referred to herein as “Defendants”). (D.E. 38).
As part of the answer, Defendants identified Dr. O'Donnell as John Doe Medical Director. (D.E. 45, p. 1). On July 26, 2018, Plaintiff notified the Court that he had designated Dr. Steven Bowers and Pharmacy Clinical Practice Specialist Neha M. Agrawal as expert witnesses. (D.E. 53).
On October 1, 2019, Defendants filed their first Motion for Summary Judgment. (D.E. 57). On May 7, 2020, the undersigned issued a Memorandum and Recommendation (May 7, 2020 M&R), recommending that Defendants' first Motion for Summary Judgment be denied. (D.E. 64).
On May 21, 2020, Defendants filed a motion seeking leave to file a supplemental motion for summary judgment (D.E. 65) along with the supplemental summary judgment motion (D.E. 67). In their motion for leave, Defendants sought to present new evidence showing that Plaintiff currently receives a long-acting insulin (Levemir) for his diabetic condition and has received substantial treatment for his vision issues. (D.E. 65, p. 2).
On June 2, 2020, counsel for Defendants and Plaintiff appeared at a telephone conference before the undersigned. While confirming that he has received treatment for his eyesight and is currently being prescribed Levemir, Plaintiff informed the Court that issues remain regarding his medical treatment and his request for injunctive relief. Specifically, Plaintiff stated that: (1) Dr. Kwarteng has failed to make appropriate adjustments to his daily intake of Levemir depending on his blood sugar results; and (2) Plaintiff is not receiving his prescribed insulin regimen on the days he is being transported to other prisons in connection with his scheduled trips to the Hospital Galveston.
Based on the parties' statements provided at the telephone conference, the undersigned stayed the case to allow the parties to address the remaining treatment issues identified by Plaintiff at the telephone conference and possibly this case. (D.E. 72, p. 2). The undersigned further withdrew the May 7, 2020 M&R, denied Defendants' Motion for Summary Judgment (D.E. 57) without prejudice to renew at a later date, and denied Defendants' motion for leave (D.E. 65) and supplemental summary judgment motion (D.E. 67) without prejudice. (D.E. 72, p. 3).
Because the parties were unable to reach a settlement as to Plaintiff's claims for injunctive relief against Defendants, the undersigned reopened discovery and set forth new discovery and dispositive motions deadlines. (D.E. 87). On January 15, 2021, Defendants filed their second Motion for Summary Judgment. (D.E. 97). Plaintiff subsequently filed his response. (D.E. 115).
Defendants offer the following summary judgment evidence:
Plaintiff, in turn, has offered the following summary judgment evidence:[4] (1) his relevant medical records (D.E. 60-1, pp. 1-16, 18-21, 31, 37-39; D.E. 115-1, pp. 1-11, 1434, 52-57); (2) excepts from Dr. Bowers affidavit (D.E. 60-1, pp. 17, 22-25; D.E. 115-1, p. 35); (3) Plaintiff's relevant grievances and informal I-60 complaints (D.E. 60-1, pp. 26-29; D.E. 115-1, pp. 12-13 36-39; 41-42); (4) Affidavit of Brandi Rogers (D.E. 60-1, p. 30); (5) Affidavit of Opie Toland (D.E. 60-1, p. 32); (6) Affidavit of Fred Hoffman (D.E. 60-1, p. 33); (7) Plaintiff's Affidavit (D.E. 60-1, p. 34); (8) Affidavits of Da-na Allen (D.E. 60-1, p. 35; D.E. 115-1, pp. 45-46); (9) Affidavit of Omar Costillo (D.E. 60-1, p. 36); (10) Disciplinary Proceeding against Plaintiff, dated September 23, 2020 (D.E. 1151, p. 43); (11) Affidavit of Eduardo Trevino (D.E. 115-1, pp. 44); (12) Affidavit of Damon Earl Lewis (D.E. 115-1, pp. 48); (13) Plaintiff's Medical Passes (D.E. 115-1, p. 51); (14) Plaintiff's verified complaint and attachments thereto (D.E. 1); and (15) Plaintiff's testimony at the Spears hearing.
The parties have presented the following undisputed summary judgment evidence:
A. Plaintiff's Grievance and Filing of Original Complaint
In a Step 1 grievance dated November 5, 2018, Plaintiff complained that: (1) Defendants Kwarteng and Goyel were deliberately indifferent to his serious medical needs when they “made their decision to deny proper insulin” to Plaintiff; (2) during a clinic visit to address his vision loss, Defendants Goyel and Corbett informed Plaintiff that he would not be prescribed with Lantus; (3) all other TDCJ units prescribed Lantus or other insulin; (4) his eyesight has affected him to the point where he cannot read or see properly; and (5) Defendants Kwarteng, Goyel, and Corbett have committed medical malpractice. (D.E. 98, p. 3). Plaintiff sought proper medical care for his diabetes. (D.E. 98, p. 4).
On November 8, 2018, Plaintiff signed this prisoner civil rights complaint, and it is post-marked on November 13, 2018, as mailed to the Court. (D.E. 1, p. 5). The Court received his complaint on November 16, 2018. One day earlier, prison officials returned Plaintiff's Step 1 grievance to Plaintiff, indicating that there had been no documented attempt at informal resolution. (D.E. 98, p. 4).
B. Plaintiff's Medical Conditions and Treatments
Plaintiff testified at the Spears hearing that he was diagnosed with Type 2 Diabetes Mellitus (T2DM) in 1998. Plaintiff further testified that, at the time he was diagnosed, Plaintiff's free world doctor observed that Plaintiff was resistant to NPH insulin, which is a relatively short-acting insulin. Plaintiff, therefore, has a long-standing history of T2DM as well as pancreatitis. (D.E 60-1, pp. 3, 7, 24). In 2008, Plaintiff...
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