Smith v. Tom Green Cnty. Jail
| Decision Date | 15 August 2018 |
| Docket Number | Civil No. 6:17-CV-0055-BL |
| Parties | JAVARE LEE SMITH, Prison ID # 66864, Plaintiff, v. TOM GREEN COUNTY JAIL, et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
Pursuant to 42 U. S. C. § 1983, Plaintiff sues Tom Green County Jail ("the Jail") and Nurse Sharron1 for alleged denials of adequate medical care and harassment with homosexual discrimination. See Compl. (doc. 1) at 3. The Court has granted Plaintiff permission to proceed with this case in forma pauperis. See PLRA Filing Fee Order (doc. 5). On November 30, 2017, the District Judge referred the case to the undersigned. See Order (doc. 6). Plaintiff thereafter consented to have a United States Magistrate Judge conduct any and all further proceedings in this case, including entry of a final judgment, in accordance with 28 U.S.C. § 636(c). See Consent to Proceed Before a United States Magistrate Judge (doc. 8).
Pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the Court set the matter for an evidentiary hearing and ordered the Jail to provide authenticated copies of relevant institutional records. See Order Setting Evid. H'rg (doc. 7). The Jail provided relevant records,2 Plaintiff fileda time-line of events (doc. 9), and on January 31, 2018, the Court conducted a hearing to clarify factual allegations in the complaint. At that hearing, Plaintiff verified that the events he sets out in the time-line are true and correct with approximate dates. He also stated that he was in the Jail during the relevant period as a pretrial detainee and that the Jail had different staff when he was previously housed there. Following the Spears hearing, Plaintiff filed a document that has been docketed as a motion to add two new defendants (doc. 11).
After considering Plaintiff's complaint, his answers at the Spears hearing, supplemental filings, the authenticated jail records, and the applicable law, the Court issues this Memorandum Opinion and Order finding that Plaintiff has stated no claim that survives summary dismissal and thus dismisses this action in its entirety. It also denies the motion to add defendants.
Plaintiff has been in and out of Tom Green County Jail multiple times over the years. His most recent prior detention at the Tom Green County Jail ended on December 4, 2015. See R. 300. During his prior detentions he had noted medical issues with gout, was prescribed medication, and was placed on a medical diet. His current detention at the Jail commenced in July 2017. R. 310-16. His current detention continues but was interrupted by a transfer to Nolan County Jail as discussed more fully later. Although Plaintiff limits this case to a specific portion of his current detention, additional medical history provides pertinent context for this case.
On October 7, 2014, Nurse Practitioner Susan Schultz ("Schultz") ordered a diet that elimin-ated beef and beans and increased vegetables and fruit, particularly apples.4 R. 397. Later that month, medical ordered a regular meal tray because Plaintiff had refused the diet tray. R. 433. In December of that year, Plaintiff claimed he had not refused his diet tray and requested "to be placed back on [his] diet tray (Gout/No beans/No beef) due to severe flare-ups of gout." R. 751.
On May 8, 2015, Plaintiff requested medical to resume his gout medications "from previous jailing." R. 398. Schultz noted a gout history that had been managed with medication and diet during prior incarceration. Id. At that time, Plaintiff had not taken Allopurinol "for a few years." Id. Plaintiff was not having a gout "flare" and Schultz prescribed Ibuprofen 800 mg and the diet previously ordered on October 7, 2014. See id. On June 3, 2015, however, Plaintiff signed a Medical Treatment Refusal Form in which he again refused a diet tray, stated that the refusal was voluntary, and he would not pursue litigation as a result of his refusal. R. 390. The next day, he submitted a Non-emergency Request Form to inform medical that he "no longer want[ed]" his diet tray. R. 392. Schultz noted that medical discontinued the diet tray on June 8, 2015. R. 386. Later that month, Plaintiff submitted another Non-emergency Request Form to report that he was having a gout flare-up and needed his uric acid levels checked so that he could get medication. R. 387.
A gout attack compelled Plaintiff to see medical on July 1, 2015. R. 386. At that time, he reported that it had been five years since his last gout attack. Id. The record notes that he had been on "a no meat, no beans, extra fruit diet" but reported problems getting correct diet. Id. The medical record also states that medication, including Allopurinol, had worked in past. Id. Ibuprofen was not helping, but Plaintiff was able to walk and wear shoes. R. 384. Medical assessed a gout flare-up andmorbid obesity and prescribed Colchicine and Indocin (a.k.a. Indomethacin). Id. Schultz noted that staff had "resubmitted special diet." Id. The resubmitted diet again eliminated beef and beans while increasing fruits and vegetables. R. 389.
A medical note dated July 6, 2015, shows that nursing staff had reported resolution of the acute gout attack. Id. Medical changed his medication to Allopurinol 100 mg for ninety days. Id. A lab report from Shannon Medical Center dated that same date shows an elevated uric acid level. R. 385. Schultz referred Plaintiff for additional lab work on August 11, 2015. R. 383. Records from October 2015 show a history of gout, a then current prescription for Indomethacin 50 mg, and a renewal of that prescription for thirty more days by Schultz. Id. After a "gout flare up" in November 2015, the records indicate that Plaintiff intended to request further treatment, but three days later, he instead refused treatment. Id. Plaintiff was released from Tom Green County Jail in December 2015. R. 300.
Plaintiff returned to the Jail after his arrest on July 17, 2017. R. 310-16. At booking, he reported foot and back trouble with swollen or painful joints. R. 312. He also reported that he was not "in current need of medical attention." R. 319. Nevertheless, on that date, he requested gout medication. See R. 306, 308. Two days later, Schultz and "KB"5 examined Plaintiff; noted a "long [history] of gout which has been managed" with medications, including Allopurinol; and prescribed Allopurinol 100 mg and Ibuprofen 800 mg for 180 days along with releasing him from work for two days. R. 300.
Jail medication charts show that Schultz authorized Plaintiff to start Ibuprofen 800 mg twice daily on July 19, 2017, with a scheduled stop date of October 16, 2017. R. 321, 324. She authorizedhim to start Allopurinol 100 mg once daily on July 21, 2017, with a scheduled stop date of January 15, 2018, but the Jail discontinued the prescription on October 3, 2017. Id. These charts6 list Plaintiff as absent, missing, or a "no show" for Ibuprofen the mornings of July 22 and 28 and August 4, 8, 12, 14-15, 17, 19, and 21-25 and evening of July 29. Id. They list him as missing or a "no show" for Allopurinol on July 22 and 28 and August 12, 14, 15, 17, 19, and 21-24. Id. They list him as refusing Ibuprofen both morning and evening on July 30 and just the mornings of August 7 and 13. Id. They list him as refusing Allopurinol on each of those same dates. Id. The Jail lists Plaintiff as non-compliant with medication for those dates. R. 323, 326.
On July 30, 2017, Plaintiff asked if a diet tray had been started yet. R. 299. He completed a Non-emergency Request Form on August 7, 2017, to discuss a diet tray. R. 301. Medical received the form the next day and met with him the day after. R. 300-01. Plaintiff requested a "no beans" gout diet and "C Dickinson"7 and KB noted that an order had been faxed to the kitchen. R. 300. KB completed a Medical Diet Order for a "no beans" diet to start August 9, 2017, and to end with Plaintiff's release. R. 303-04. A Fax Confirmation shows that KB sent the order early in the afternoon on August 9, 2017. R. 303.
According to medication charts, Plaintiff was out of county on August 25 and August 30 through October 2, 2017. R. 326, 329-32,8 336. It is also apparent that he was not housed in TomGreen County Jail August 26 through 29. Cell assignment documentation indicates that he was housed in Nolan County Jail from August 25, 2017, to October 2, 2017. R. 59-60. An Offender Log Report showing each time an inmate is checked in his cell shows that he was not in Tom Green County Jail starting the afternoon of August 25, 2017, through October 2, 2017. See R. 95-96. The Jail's Inmate Balance History Report details inmate purchases and also shows that he was released from the Jail on August 25 and returned on October 3, 2017. See R. 354.
A medical record dated October 2, 2017, shows gout as a medical issue and that Plaintiff was currently prescribed Allopurinol 300 mg. R. 298. Medical progress notes dated the next day show a prescription for Allopurinol 300 mg authorized by Dickinson and "S Epperson." R. 285. Upon his return to Tom Green County Jail, Plaintiff (1) resumed his Ibuprofen prescription through October 16, 2017, as previously authorized by Schultz, but was listed as a "no show" for the mornings of October 4, 9, and 12; (2) started a new prescription authorized by Dickinson for Ibuprofen on October 18, 2017, with an end date of November 17, 2017, but was listed as a "no show" for the mornings of October 20 and 24; and (3) started a prescription authorized by Dickinson for Allopurinol 300 mg once daily with an end date of March 31, 2018, but was listed as a "no show" on October 4, 9, 12, 20, and 24. R. 333.
On October 5, 2017, Plaintiff submitted a Non-emergency Request Form to inform nursing that "Dr. Moak in Sweetwater" told him that "sandwich meat is bad for [his] gout" and asked that the kitchen be notified that he needs a no beans and no processed meat diet tray. R. 289. The record indicates...
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