Sawyer v. Sigler

• Decision Date: 23 December 1970
• Docket Number: Civ. No. 1646L-1648L.
• Citation: 320 F. Supp. 690
• Parties: William SAWYER, Petitioner, v. Maurice H. SIGLER et al., Respondents. Lyle H. BARTHOLOMEW, Petitioner, v. Maurice H. SIGLER, Respondent. Carl BECKER, Petitioner, v. Maurice SIGLER, Respondent.
• Court: U.S. District Court — District of Nebraska

320 F. Supp. 690

William SAWYER, Petitioner, v. Maurice H. SIGLER et al., Respondents.

Lyle H. BARTHOLOMEW, Petitioner, v. Maurice H. SIGLER, Respondent.

Carl BECKER, Petitioner, v. Maurice SIGLER, Respondent.

Civ. Nos. 1646L-1648L.

United States District Court, D. Nebraska.

December 23, 1970.

COPYRIGHT MATERIAL OMITTED

Donald E. Endacott, Lincoln, Neb., for petitioners.

C. C. Sheldon, Asst. Atty. Gen., for respondent.

MEMORANDUM OF DECISION

URBOM, District Judge.

Three inmates of the Nebraska Penal and Correctional Complex have filed separate actions, consolidated for trial, under the Civil Rights Act, Tit. 42, § 1983, which provides relief for anyone who has been deprived of rights secured by the Constitution of the United States by any person acting under color of state law. They allege that they have received inadequate medical treatment during their imprisonment, that they have been subjected to a policy whereby all pills and capsules of a medicinal nature are to be crushed or broken apart before being given to the inmates, and that they have been denied statutory and meritorious good time while being idle because of hospitalization or cell lay-ins.

WILLIAM SAWYER

William Sawyer, according to the evidence, is 52 years of age and began confinement in the Nebraska Penal and Correctional Complex on May 20, 1967. At the beginning of the confinement a diagnosis of emphysema was made by Dr. George E. Lewis, Chief Medical Officer. One year later, Dr. Lewis described the condition as a "chronic, obstructive lung disease" and recommended a shift in housing, a recommendation honored by the prison authorities. On November 26, 1969, Dr. John J. Hanigan, a prison physician, reviewed chest x-rays of Sawyer and found that "his emphysema has become progressively worse since he has been confined to the penitentiary. He has a chronic lung disease and facilities to treat him here are very limited." Symptoms were and are shortness of breath and a constant ache in the lower chest and back. Numerous medications, including Darvon since October 31, 1969, and Equanil since July 1, 1970, have been supplied for the condition. An additional medication, referred to by Sawyer as "elixolofin" and apparently referred to in the medical records as "Elixo", was administered from about September 15, 1967, until the present. It gives immediate temporary relief in breathing. X-rays of the chest were taken June 12, 1967, January 23, 1968, October 2, 1968, November 7, 1969, and the latter part of August, 1970. A type of treatment described by Sawyer as pressure inhalation treatments was begun about six weeks before the trial and about four or five months after the filing of this action, which means that such treatments began about August 1, 1970. The plaintiff states that he received two such treatments per week until sometime after the commencement of the trial on September 17, 1970, after which the number of treatments was reduced to one per week. The plaintiff claims that the pressure inhalation treatments were and are given without the recommendation of a radiologist as to the advisable frequency and urges the court to appoint a radiologist to examine him or to require the penal institution to obtain a radiologist to determine what treatments are necessary. The plaintiff also indicates that Dr. Lewis "talked about" pressure inhalation treatments as much as two years ago, but there is no indication that any prison physician recommended such treatments before January, 1970, and the plaintiff intimates that Associate Warden R. B. Jones intervened, saying that such treatment was not "appropriate at this time." The plaintiff Sawyer sought a medical discharge through the Nebraska Board of Parole for the purpose of receiving treatment at Iowa University Hospital, but the request was denied in the early part of 1970.

Beginning about September 1, 1970, the penitentiary instituted a policy requiring that all medication be taken in crushed or liquid form. Sawyer testified that after the commencement of that policy he placed his medication in cigarette paper and swallowed the medicine and the cigarette paper in order to keep from being nauseated. He takes medication three times a day and before beginning of the policy he received it in pill or capsule form. The undisputed evidence is that Dr. Hanigan directed that Sawyer's medication not be crushed, but that the warden directed that Sawyer's medication would be crushed. Additionally, the evidence is that after September 21, 1970, Sawyer has been forbidden from wrapping his crushed medication in paper before swallowing it and his consuming the crushed pills has caused him to become nauseated. The policy against taking of medication in pill or capsule form was instituted because of the tendency of some prisoners to hoard narcotics.

On the basis of the evidence, this court cannot conclude that the prison authorities either have rendered cruel or unusual punishment or have failed to provide constitutionally required medical treatment to the plaintiff Sawyer, except with respect to the requirement that he take his medication in crushed or liquid form. As to the adequacy of the treatment for emphysema, there is no persuasive evidence that the type or frequency of medication or the nature or frequency of the pressure inhalation treatments is not in thorough accord with the recommendations of the prison physicians. While the opinion of a specialist might be highly desirable, this court must leave to the prison physicians the exercise of good judgment regarding medical treatment. This standard is clearly expressed by the court of appeals whose directives this court must respect. In Cates v. Ciccone, 422 F.2d 926 (C.A. 8th Cir. 1970) the court said:

"The prisoner cannot be the ultimate judge of what medical treatment is necessary or proper for his care. * * In the absence of factual allegations of obvious neglect or intentional mistreatment, the courts should place their confidence in the reports of reputable prison physicians that reasonable medical care is being rendered. The district courts cannot become a forum to enjoin prison authorities for alleged negligence in rendering medical care to prisoners under the guise of habeas corpus or in any other action seeking injunctive relief."

As to the crushing of the pills and capsules and requiring the taking of all medications in crushed or liquid form without even the protection against nausea of the crude device of cigarette papers, however, there is positive evidence that a prison physician has indicated that Sawyer's medication should not be so taken, but that the administrative officials have overruled that recommendation. As the courts should be guided by physicians as to their judgment that adequate medical treatment is being rendered, so the courts should be guided by those same physicians that inadequate medical treatment is being rendered. It is fully understood that prison officials must be permitted to enforce reasonable regulations for the orderly operation of a prison and for the safety and health of all prisoners, including those directives reasonably designed to prevent abusive use of drugs. But no effort has been made in this case to show that Sawyer has or ever has had any tendency to hoard narcotics or that a policy against hoarding cannot reasonably be carried out on a selective basis. In the absence of that kind of showing, I conclude that requiring Sawyer to take his medication in a form which results in nausea is sufficiently unusual, exceptional and arbitrary to constitute both cruel and inhuman punishment and a denial of adequate medical treatment, as required by the Eighth and Fourteenth Amendments.

LYLE H. BARTHOLOMEW

Lyle Howard Bartholomew, age 52, has been imprisoned at the Nebraska Penal and Correctional Complex since August 29, 1968, on a conviction of forgery to serve six to eight years.

In 1938 Bartholomew developed a tumor on the left arm, which was surgically removed by a military physician while Bartholomew was in the army. In 1947, also when he was in the army, a tumor was located on one of his buttocks. The tumor was removed in an army hospital. In April, 1956, an orchiectomy, an excision of the left testis and complete excision of the cord, was performed at the prison hospital of the Texas Department of Corrections. The testicle was sent to the M. D. Anderson Hospital and Tumor Institute, Houston, Texas, for study. The diagnosis was mixed embryonal carcinoma and seminoma of the testicle. Radical retroperitoneal lymph node dissection, followed by radical radiation, was indicated by the M. D. Anderson Hospital and Tumor Institute as the treatment of choice. Bartholomew testified that he received radical radiations twice, once at the medical center at Springfield, Missouri, in about 1958 or 1959 and once at the Memorial Center in New York at an unspecified date. He has not had the surgery referred to as radical retroperitoneal lymph node dissection. He states that he was told at the time of the initial biopsy at the M. D. Anderson Hospital and Tumor Institute in 1956 that the condition had metastasized or broken loose from the parent tumor. No reference to that is found in the medical records in evidence, except in the classification study at Leavenworth in 1958, where the diagnosis includes, "Probable systemic carcinoma metatases — Iradiation indicated?" Whether the word "metatases" should have been "metastases" cannot be determined positively, but probably it should have been.

At the time of his admission into the Nebraska Penal and Correctional Complex in 1968, according to his testimony, Bartholomew had swelling in the lymph glands and throat and pain in his jaw. Presently he has swelling in the lymph glands and throat, continuous pain on the left side of his jaw and throat, his ears are running, his eyes are becoming infected, he has pain in his joints and on his left side, he has irregular movements, ...