Zingmond v. Harger

• Decision Date: 05 February 1985
• Docket Number: No. L 83-114.,L 83-114.
• Citation: 602 F. Supp. 256
• Parties: Alfred ZINGMOND, Plaintiff, v. Sheriff Ed HARGER and Tippecanoe County Jail, Defendants.
• Court: U.S. District Court — Northern District of Indiana

602 F. Supp. 256

Alfred ZINGMOND, Plaintiff, v. Sheriff Ed HARGER and Tippecanoe County Jail, Defendants.

No. L 83-114.

United States District Court, N.D. Indiana, Hammond Division at Lafayette.

February 5, 1985.

Alfred Zingmond, pro se.

J. Frederick Hoffman, Lafayette, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

The complaint here is filed under 42 U.S.C. § 1983.

Defendant's Motion for Summary Judgment is before the court. It was filed November 13, 1984 and is now ripe.

Alfred Samuel Zingmond has been confined in the Tippecanoe County, Indiana, jail on the following dates:

1. June 14, 1983, at 5:30 o'clock P.M. to August 26, 1983, at 12:50 o'clock P.M.

2. November 9, 1983, at 4:14 o'clock P.M. to November 21, 1983, at 10:30 o'clock P.M.

3. In both instances he was held there pursuant to an arrest warrant pending extradition to the State of Florida.

The complaint appears to involve both periods of confinement.

The claims alleged against these two defendants are stated as follows:

Allegation 1: Lack of a proper diet for a diabetic.

Allegation 2: The stopping of insulin for a diabetic and not the right medical care.

Allegation 3: Cruel and unusual punishment visiting windows. (Complaint, Paragraph D)

The only facts alleged in support of these allegations are set forth in Paragraph E of the complaint as follows:

Allegation 1: Eating the same food as other inmates. Should have diabetic diet.

Allegation 2: When asking about my insulin, I was told it was stopped. I am a diabetic. I was put in jail on June 14, 1983. Insulin was stopped July 26, 1983. After telling the doctor for 3 weeks, the jail started it again.

Allegation 3: The windows for visit were said to have been cruel and unusual punishment by the Supreme Court.

The prayer of the complaint states:

2. I believe that I am entitled to the following relief. For undue suffering and mental anguish for not getting the right diet for a diabetic and stopping of my insulin and the visiting windows in the amount of 1,000,000.

This is all that is stated in the complaint.

An extensive pretrial was held on June 29, 1984, in Lafayette, Indiana, where plaintiff testified under oath at length.

Plaintiff stated that he was held in Indiana only for extradition to Florida for parole violation. The original charge in Florida was dealing in stolen property. He had a court-appointed attorney from three days after his incarceration until he left for Florida. He never talked or wrote to Sheriff Harger. He said that he wrote twice to Lt. Chase, jail commander, once about food and once for permission for a friend to visit him and permission was granted and the friend visited him. He claims they did refuse him one visit the last time he was there which was denied by Sheriff Harger. He said he was not claiming the right to contact visits, but that the visiting window (18" × 18") was too small pursuant to a ruling by the Supreme Court of the United States.

He said he had been a diabetic since 1979 and took insulin twice daily. He saw the jail physician at least four times. After he was there 45-50 days, they stopped his insulin for three weeks, saying he was not a diabetic, then reinstated it. He went to the hospital twice while in the jail for blood sugar tests, but he didn't know the results of the tests. He claimed he never received a special diet, only what the other prisoners received.

The results of the two blood sugar tests run at Lafayette Home Hospital show a glucose fasting reading of 238 on June 16, 1984, two days after plaintiff was placed in the jail and one of 123 on July 20, 1984, after he had been there 35 days.

At all times involved herein, Harry E. Klepinger, M.D., a licensed physician and an active member of the staff of Lafayette Home Hospital, was jail physician at the Tippecanoe County Jail. He examined plaintiff on four occasions, June 28, August 2, August 9, and August 16, 1983, and Dr. Vermilya, who substituted for him, examined plaintiff on June 21, 1983. Having had the first blood sugar test on June 16, diabinese was prescribed for plaintiff from the time of his admission until the results of the second test were received. When Dr. Klepinger received the results of the July blood test, he stopped the diabinese and special diet because, in his opinion, the test was in the normal range and plaintiff needed no special diet. Although weekly visits were made to the jail, plaintiff only requested to be seen by the physician on the above occasions, and one of these related solely to another problem. Dr. Klepinger states that the medications prescribed to plaintiff during his confinement in the Tippecanoe County Jail were his decisions and not those of Sheriff Harger.

Dee Masterson states in her affidavit that she has been a cook at the Tippecanoe County Jail since January 1, 1973, has consulted frequently with the Home Economics Department at Purdue University concerning nutritional problems of inmates there, has had years of experience with the problems and dietetic needs of diabetics because her one son has been diabetic since the age of two, has had her menus reviewed by a registered dietician and follows the guidelines recommended by the dieticians of St. Elizabeth Hospital in planning needs for diabetics. She states that following these guidelines she eliminated sweets from plaintiff's diet, substituted milk for soft drinks, and increased the amounts of fruits and vegetables served him. She was unable to restrict plaintiff's intake of food because he was in a cell block with other prisoners and he received cookies, doughnuts, etc. from fellow prisoners and purchased coca-cola, wild cherry pop, corn chips, and candy from the jail commissary as shown by Commissary Receipts. She stated that even though Dr. Klepinger stated that plaintiff could be on a regular diet after the July blood sugar test, she continued to serve him a low sugar diet.

The physician's records attached to the affidavit of Sheriff Harger reflect the above statements and show that on June 21, 1983, plaintiff was to receive diabinese twice daily and "possibly substitute something in place of doughnuts in a.m." On August 2, the blood sugar was "normal" and "try low carbohydrate diet;" on August 9, he was to be "now on same diet as others", and on August 16, he was to receive "diabinese" again.

Exhibit 7 to Sheriff Harger's affidavit shows that plaintiff received diabinese daily during the periods it was prescribed for him.

The jail rules which were in force during the time plaintiff was there are attached to Sheriff Harger's affidavit. They provide that the prisoners shall receive a nutritious and well balanced diet meeting or exceeding the federal daily allowances prescribed by law and adequate and regular medical care and states: "those inmates receiving regular medications will receive the medicine as prescribed". That these provisions were complied with is shown by the Physician's Records and the Administrative Record.

Exhibit 4 to Sheriff Harger's affidavit is a December 6, 1983 report made by the Food Services Department of Lafayette Home Hospital at the Sheriff's request concerning the food service at the Tippecanoe County Jail.

Exhibit 4 to Dee Master's affidavit is a report made after talking to two of the visitors to plaintiff, Sonny Haley and Glenda Haley, who visited him on July 9, 1983, indicating that plaintiff might not be diabetic and that he might have consumed large quantities of sugar intentionally prior to the blood sugar test of June 16, 1983. Therefore, he ordered the surprise retesting which gave what Dr. Klepinger reported to be a normal reading. Sheriff Harger shows that he attempted to comply with the dietetic requirements of diabetics and all other prisoners needing special diets for medical, religious or other reasons and has instructed his staff to so do.

II.

In considering the constitutional issues raised in this case this court must consider the interplay of several decisions of the Supreme Court of the United States: Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (pretrial detainees); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (medical treatment under Eighth Amendment standards); and Block v. Rutherford, ___ U.S. ___, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) (visitation). Much of the judicial homework on the interplay between Bell v. Wolfish and Estelle v. Gamble has been done recently by Judge Coffey in Matzker v. Herr, 748 F.2d 1142 (7th Cir.1984).

Conceptionally the medical treatment issue as to pretrial detainees must be rationalized under the Due Process Clause and not directly under the Eighth Amendment. The standards are basically the same and are generally in a similar factual setting. There is one basic difference as to pretrial detainees. A showing deliberate indifference is not required under the Due Process Clause. See Kincaid v. Rusk, 670 F.2d 737, 743 n. 8 (7th Cir.1982). For a pretrial detainee a jailer must promptly and reasonably procure competent medical aid for one who suffers serious illness or injury while confined.

The jail standards as to medical attention here are similar to the ones in Matzker, at 1147, and facially comply with the due process clause. Given the inferences favoring the plaintiff here under Rule 56 F.R.C.P., he has failed to show any basic denial of competent medical care. In fact, just the contrary is shown.

After the results of the July 20, 1983, blood sugar tests were known to the jail physician, the medication "diabinese" was no longer prescribed for plaintiff. At all times the medicine prescribed by the physician was given him. As shown by the affidavit of Dee Masterson, jail cook, she continued to give him a low sugar diet. The most that he could hope to prove would be negligence on the part of his jailers. Negligence will not support an action under 42 U.S.C. § 1983, or for a violation of the Eighth Amendment, ...