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Dauzat v. Carter

United States District Court, E.D. Louisiana

May 8, 2018




         Before the Court is a Motion for Summary Judgment (R. Doc. 84) filed by Defendants, Bessie Carter, Laura Buckley, and Dr. Casey McVea. The motion is opposed. R. Doc. 94. The motion was heard on the briefs.

         I. Background

         The instant action was filed by Plaintiff, Joseph Dauzat, an inmate at the Rayburn Correctional Center (“RCC”) pursuant to Title 42 U.S.C. § 1983 for Eighth Amendment violations regarding inadequate medical care provided by Defendants Bessie Carter (“Carter”), Laura Buckley (“Buckley”), and Dr. Casey McVea (“McVea”). Dauzat alleges he fell while participating in the prison's Wellness Program on March 14, 2013.[1]

         The medical records reveal that he was seen in the medical unit after the fall on March 17, 2013, and he was observed to have a limp and his right foot was turned outward. The medical records further show that Nurse Buckley noted that while Dauzat was able to swing both his legs across and up onto the table while lying down, as well as remove his shoes, he complained that his legs from the knee up and his right arm were numb or exhibited paresthesia, which usually arises from nerve damage. Nurse Buckley characterized Dauzat's neck pain as an afterthought.[2] Dauzat requested the opportunity to be evaluated at a hospital because his pain was worsening despite the medications he had been given, but was instead sent back to his dorm.”[3]

         On March 31, 2013, Dauzat's medical records evince that he was again seen on an emergency basis by Nurse Buckley. During this visit he complained that he was not feeling well and suggested that he needed to lie down. Nurse Buckley noted that Dauzat complained of nausea, sweating, and that he had recently passed out. Dauzat also advised Nurse Buckley that he is still having the same problem from his last visit. On examination, Nurse Buckley concluded that Dauzat did not appear to be in any apparent distress at the time of his visit. She noted that he was alert, oriented, and stable. She noted that his lungs were clear, he was not sweating, his pupils were equal and responsive, and there were no sign or symptom of nausea and vomiting. She concluded that no treatment was necessary and he returned to the dorm.[4]

         On April 3, 2013, Dauzat was seen by the medical department at RCC. During this visit Dauzat's complaints increased to include numbness in his feet, his hands, and in his legs. He complained that these symptoms had begun three to four weeks earlier.[5] He alleges that the problem progressed to his left hand one week earlier, and that he could no longer feel his feet, which makes walking difficult. Dauzat complained of shocking pain in his back and neck that traveled down to his feet whenever he bent his neck.[6] The evaluating nurse observed that he had an awkward gait, but that he had equal strength in both hands. The nurse also found that Dauzat had difficulty using his hands and could not write well.[7]

         On April 4, 2013, Dauzat was seen by Dr. McVea, who recorded a history of syncopal or fainting episodes on December 20, 2012, December 24, 2012, and January 30, 2013. Hypertension was noted on all of these occasions. The doctor also noted that on all these occasions Dauzat complained of progressive numbness and weakness in his lower extremities, stating that he could not feel his feet when he walked. Dauzat was assessed that day and the doctor noted that neurologically, his ankle reflexes showed sustained clonus[8] on forced dorsiflexion of the ankle. His gait was markedly ataxic[9] while he tried to “feel” for the floor. The doctor also noted that upon examination, Dauzat had decreased strength in all of his extremities.

         After examining him, the doctor issued orders for Dauzat to be transferred immediately to the Emergency Room at the Louisiana State University Hospital (“LSU”) due to his experience of syncopal or fainting episodes.[10] He was evaluated at the LSU Health Interim Public Hospital as a result of his complaint of weakness and decreased sensation to his hands and his feet.[11]

         At this time, Dauzat was diagnosed with significant, severe stenosis of his cervical spine. He was seen by the neurosurgery department and evaluated for possible surgery. Dauzat also obtained an MRI, which revealed that he had congenital narrowing of the AP diameter of the Spinal Canal with multi-level posterior disc bulges producing regions of severe canal stenosis, cord contact and cord signal alterations, consistent with myelomalacia/cord edema[12] which was representative of critical stenosis.[13]

         As a result of the diagnostic tests and his evaluation, Dauzat was prescribed medication for his pain, as well as recommended for surgery of his cervical spine by the neurosurgeon. The neurosurgeon noted that there should be fall precautions and close follow-up of Dauzat along with the administration of his pain medication.

         On April 5, 2013, Nurse Temples (a.k.a. “Nurse Wheat”) noted that she attempted to get in contact with the neurosurgeon but was advised that he would not be in a position to see Dauzat until April 19, 2013. She advised LSU about the urgent nature of the situation, and also sent an email to the Wardens regarding the same. Dauzat was thereafter seen on April 15, 2014, for a neurosurgery consult and instructed to return on May 6, 2013.[14] He was diagnosed with a disorder of the spinal cord in the neck.[15]

         Dauzat was scheduled for a posterior cervical laminectomy and fusion. Due to his condition, his surgery was pushed up, and the procedure was completed on April 23, 2013. Dauzat's surgery consisted of a C3-C6 posterior laminectomy and fusion.

         Dauzat had a post-operation visit on May 20, 2013, where he complained of some neck, and residual right arm pain, as well as leg weakness or paresthesia, more so on the right side.[16] The post- operative orders required Dauzat to receive physical therapy daily at the facility, and required the administration of ibuprofen and Neurontin. Dauzat was also instructed to return for a post-operation visit in six months.[17]

         The medical records evince that Dr. McVea accepted the post-operation orders, but later changed the order requiring daily physical therapy at the facility to Bogalusa Community Medical Center (“BCMC”) for Physical Therapy.[18]

         Dauzat inquired about physical therapy with the doctor and was advised that RCC did not have physical therapy services available at that time. Dr. McVea instructed Nurse Temples to inform Dauzat to begin participating in the wellness program and recommended that he perform gentle range of motion exercises as tolerated along with strengthening exercises.[19]

         Dauzat contends that upon returning to RCC and despite doctors' orders he was never provided physical therapy. Instead, he was instructed to squeeze a “putty clay ball, ” and that upon complaining of the lack of physical therapy to Nurse Bessie Carter was told that the Wellness Program would serve as his physical therapy. Dauzat alleges that the Wellness Program is not instructed by a professional, but only offender facilitators who are not certified in administering physical therapy.[20] As such, Dauzat alleges he was not provided the professional physical therapy as a result of the surgical physicians' orders.

         Despite the Wellness Program and the recommended exercise, squeezing the ball, Dauzat's complaint of numbness in his hands and feet as well as neck shoulder and back continued. On July 1, 2013, during a subsequent doctor's visit, Dauzat restated these complaints to the treating physician. The physician noted that while there was residual spasticity, [21] he was referred to physical therapy for rehabilitation training, and he was instructed to rest in his bunk as needed. The record noted that he was ready for discharge on July 1, 2013. His prescription for Ultram and Neurontin were continued.

         Dauzat's complaints of numbness continued. He was referred to a medical doctor and awaited an appointment on August 29, 2013. On August 28, 2013, Dauzat was seen after being involved in a fight. He denied injuries and he reported that he hit the other inmate because he was afraid. The records from this visit indicate that Dauzat's neck pain was again reported and appeared to be a chronic issue, as he again requested pain medication.[22]

         Dauzat was seen by the doctor on August 29, 2013, with complaints of increased pain from the neck down between shoulder blades. Involuntary movement of his arms and legs were also noted. The record further indicates that Dauzat was moved to the Sun Unit on September 3, 2013 and Dauzat complained of increased neck pain and decreased shoulder blade pain. Involuntary movements of the arms and legs were noted. Dauzat complained that spasticity was worse upon awakening.

         On observation, Dr. McVea noted that there was spastic gait, increased deep tendon reflex with bilateral decrease of the lower extremities.[23] Dauzat contends that despite his physical limitations he has not been provided with physical therapy such that McVea is deliberately indifferent to his serious medical needs.

         The Defendants now seek a summary dismissal of each of the Plaintiff's claims. First, they argue that Dauzat's Eighth Amendment claim fails because he cannot show that considering the objective severity of his medical condition, the Defendants possessed the requisite culpable state of mind entitling them to qualified immunity. Second, the Defendants contend that the volume of medical records alone constitute proof that they were not deliberately indifferent to his serious medical needs. As to Buckley, the Defendants advance the argument that because Nurse Buckley documented the examinations and complaints of Dauzat for the doctor, she did what a nurse was supposed to do and therefore could not be deemed deliberately indifferent to his serious medical needs and is therefore qualifiedly immune.

         Regarding Dr. McVea, the Defendants alleged that he was not deliberately indifferent to Dauzat after the surgery. The Defendants contend that Dauzat was provided a self-administered course of physical therapy which was sufficient for the cervical fusion and actually complied with the surgical physician's orders of post-surgical physical therapy.

         Regarding Nurse Carter, the Defendants argue she was not deliberately indifferent because she relayed factual information regarding the lack of available physical therapy and did not have authority over referrals.

         The Plaintiff has opposed the motion and contends that due to Rayburn's sick call structure Dauzat had no ability to seek care directly from a physician, that such a determination was Nurse Buckley's to make, and that she failed to do so on two occasions despite her subjective awareness of the seriousness of his symptoms.[24] Dauzat contends that Buckley's prior experience as an orthopedic nurse is evidence that she should have been aware that numbness is a significant symptom indicating poor circulation, injury and/or nerve damage and yet all she did was document the symptom. Dauzat contends that Buckley was deliberately indifferent to his serious medical need because she failed to place him on a medical call to ensure that he was provided timely access to a medical doctor out and that her failure to do so contributed to his chronic myelopathy even after his surgery.[25]

         As for Dr. McVea, Dauzat contends that the evidence establishes that Dr. McVea was aware of the necessity for post-operative physical therapy, what it was supposed to consist of and that the Wellness Program he developed did not have any actual physical therapy, which clearly is intentional indifference to his medical needs in violation of the Eight Amendment. Dauzat contends further that Dr. McVea also declined to execute the orders of the surgical doctor and altered the orders to include his Wellness Program.

         With regards to Nurse Carter, the Director of Nursing at Rayburn Correctional Center at that time, Dauzat contends that she was subjectively aware of his surgery and also knew that he needed physical therapy. Dauzat contends that Carter was responsible for ensuring that her staff carry out medical orders and take all necessary actions to carry out the orders. According to Dauzat, Nurse Carter effectively abandoned her responsibility to continue to seek medical care consistent with medically necessary care ordered by Dr. McVea.

         II. Standard of Review

         Under the doctrine of qualified immunity, public officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has “mandated a two-step sequence for resolving government officials' qualified immunity claims.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). A court must decide (1) “whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right” and (2) “whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.” Id. Importantly, the Supreme Court held in Pearson that courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236. At the same time, the Supreme Court recognized that deciding the two prongs in order “is often beneficial.” Id.

         When an official pleads qualified immunity, “the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official's allegedly wrongful conduct violated clearly established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). However, “[b]ecause this case arises in a summary judgment posture, we view the facts in the light most favorable to [Dauzat], the nonmoving party.” City & County of San Francisco v. Sheehan, __U.S. __, 135 S.Ct. 1765, 1769, 191 L.Ed.2d 856 (2015). That is, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [his] favor.” Tolan v. Cotton, __U.S. __, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

         “Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible ..., the material may be presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (quoting 11 Moore's Federal Practice-Civil ¶ 56.91 (2017)). “This flexibility allows the court to consider the evidence that would likely be admitted at trial ... without imposing on parties the time and expense it takes to authenticate everything in the record.” Maurer v. Independence Town, No. 16-30673, 2017 WL 3866561, at *3 (5th Cir. Sept. 5, 2017).

         III. Analysis

         A. Deliberate Medical Indifference

         Dauzat sued Dr. McVea, Nurse Buckley and Carter for deliberate medical indifference. Dauzat claims that Buckley was indifferent to his serious medical need when she failed to refer him to a physician although his symptoms indicated that he had a severe condition that could have resulted in paralysis. As for Dr. McVea, and Nurse Carter, Dauzat's complaint arises post-surgery where he was denied access to physical therapy as prescribed by the surgical physician. Dauzat alleges that Dr. McVea's instruction to him to squeeze a clay putty ball for fifteen (15) minutes at night in his cell was insufficient therapy after having had a cervical fusion. Carter according to Dauzat deferred to Dr. McVea's Wellness Program after learning that LSU would not approve a physical therapy appointment for him.

         In Estelle v. Gamble the Supreme Court held that it is the government's obligation to provide medical care for those whom it is punishing by incarceration. Estelle v. Gamble, 429 U.S. 97, 104 (1976). As that Court noted, an inmate is reliant on prison authorities to treat his medical needs such that a denial of care can result in pain and suffering which would not serve any penological purpose. Id. The Court, therefore, held that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain'” which is proscribed by the Eight Amendment. Id. “This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under s 1983.” Id. at pp. 104-05 (footnotes omitted). The Supreme Court further held that a prison official cannot be held liable, “unless the official knows of and disregards and excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). However, a prison official's knowledge of a substantial risk of harm may be inferred if the risk was obvious. Id. at pp. 842-43.

         Under the law a prison official acts with deliberate indifference only if: (1) he knows that inmates face a substantial risk of serious bodily harm; and (2) he disregards that risk by failing to take reasonable measures to abate it. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). “Unsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference, nor does a prisoner's disagreement with his medical treatment, absent exceptional circumstances.” Id. In order to demonstrate deliberate medical indifference a plaintiff must show that prison officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Domino v. Texas Dept. Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).

         A. Nurse Laura Buckley

         The record indicates that on March 17, 2013, Joseph Dauzat was seen by Nurse Buckley on an emergency basis after complaining of back and neck pain and numbness from a fall.[26] Buckley's documentation of her assessment on that day indicates that Dauzat was ambulatory but had a limp and his foot was turned out.

         The assessment indicates that Dauzat told Buckley that both legs were numb from the knee up, his right arm was numb, his lips were numb, and that he had pain in his neck.[27] Within the same assessment Buckley indicates that Dauzat stated he needs to be sent to the hospital. Buckley noted that Dauzat was able to swing both legs up on the table while lying down, was able to lift and hold his legs extended, took his pedal and popliteal pules, had notable grasp to both hands.

         Most notably, there is no evidence that Buckley performed a nursing-neurological assessment. Instead, the assessment is marked as a routine call out and a written note was added for Dr. McVea to advise her if Dauzat needed an X-ray.[28] When asked whether she followed up on her note to Dr. McVea of whether an X-ray was needed she stated that she did not.[29]

         The record further indicates that on March 31, 2013, Dauzat was seen on a self-declared emergency basis by Buckley, a former orthopedic nurse.[30] The Health Care Request Form indicates that Dauzat complained to an officer he did not feel well and needed to lie down, but the officer insisted that he do a self-declared emergency. Buckley noted that he complained of nausea, sweating, and that he had recently passed out. The record further indicates that Dauzat informed Buckley that he was still having problems from his last visit.

         Her assessment indicates that Dauzat's lungs were clear, vital signs were stable, there was no sweating, his pupils were equal and responsive, and there were no signs or symptoms of nausea or vomiting. Again Buckley did not perform a nursing-neurological assessment and she ignored the fact that his earlier symptoms of numbness were still present. It appears that she did not consider the complaints of nausea and vomiting as additional complaints as opposed to independent new complaints. Buckley concluded no treatment was necessary because Dauzat had a scheduled appointment with Dr. McVea on April 10, 2013 and that he ambulated back to the dorm.[31]

         Buckley confirmed that prior to examining Dauzat she would have had his active chart and looked back to prior complaints where he had complained to Dr. McVea six days before the subject fall of pain radiating down his neck.[32] He however denied fainting at that time.[33] Buckley conceded that she did not focus on Dauzat's complaints of continued numbness on March 31, 2013, because while he was still complaining of the same problems, “…I didn't address that because I was addressing why he came-why he was there.” Further, when asked if there was any reason to check to see if there was a change in his grasp strength from the March 17 visit to the March 31, 2013 visit she stated, “It would have told me it was worse, I would have, if he had told me I'm getting worse than what I was; but he said I'm still having the same problems and I documented that he was still having the same problems.”[34] Buckley seemingly acknowledged that she did not examine Dauzat despite his continue complaint of the “same problems”; instead she just wrote down what he said.

         Upon questioning, Buckley conceded that numbness “could signify that circulation is poor, there's an injury, there's nerve damage.”[35] Further, when asked what sort of injuries this could signify she responded, “It's a whole lot of types of injuries. Degenerative injuries, injuries from activities, a fall.”[36] However there is no evidence in the record that Buckley examined his extremities for strength, sensations, reflexes or range of motion. In contrast, Dauzat testified during the Spears hearing that during his March 31, 2013, assessment Buckley stated that “Oh it's him again. He's faking.”[37]

         There are clearly genuine issue of material fact for which the jury must decide whether the actions of Buckley were deliberately indifferent to Dauzat's serious medical needs. Further, Buckley is not qualifiedly immune as the Eighth Amendment's obligation to provide adequate medical care is clearly established law. See Domino, 239 F.3d at 756.

         “When a gatekeeper to emergency care…knowingly disregards a prisoner's complaint's, she acts with deliberate indifference” to that prisoner's medical needs. Rodrigue v. Morehouse Detention Ctr., Civil Action No. 09-985, 2012 WL 4483438, at *6 (W.D. La. Sept. 28, 2012) aff'd 557 F. App'x. 341 (5th Cir. 2014). “A serious medical need is one for which treatment has been recommended or for which the need is so apparent that even laymen would recognize that care is required.” Gobert, 463 F.3d at 345 n.12 (citing Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th Cir.1994), abrogated on other grounds by Hope, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666). The motion for summary judgment must be denied as to Nurse Buckley.

         B. Dr. Casey McVea

         Dr. Casey McVea, a doctor with RCC since 2012, is as a physician and medical director responsible for patient care in addition to administrative duties which included attending meetings, as well as reviewing and implementing policies.[38]

         The evidence indicates that on April 3, 2013, Dauzat was assessed by nurses, other than Nurse Buckley, and complained of being barely able to walk or use his hands and feet, and his legs were numb. Dauzat indicated he needed an MRI, he was in bad condition, and was worried about permanent injury.[39] As part of the assessment done on April 3 the nurse noted that Dauzat complained of being unable to write well and shocking pains when he bends his neck and eats.[40]Based on the severity of the complaint, McVea evaluated Dauzat on April 4, 2013.[41] In the assessment McVea conducted a neurological assessment and found that Dauzat had increased, unusual deep tendon reflexes, the Plaintiff's ankle did not exhibit normal motions, he had an ataxic gait, and strength was decreased in all extremities.[42] In his doctor's call assessment McVea writes that there are “Rapidly progressing neural deficits of unknown etiology” and sent Dauzat to the Emergency Room for an in-patient neurological work-up.[43]

         Dauzat was thereafter diagnosed with significant, severe stenosis of his cervical spine after being evaluated by the neurosurgery department. His evaluation resulted in a finding after MRI of congenital narrowing of the AP diameter of the spinal canal with multi-level posterior disc bulges producing regions of severe canal stenosis, cord contact and cord signal alterations, consistent with myelomalacia/cord edema which was representative of critical stenosis.[44] As a result of the diagnostic tests and his evaluation, Dauzat was prescribed medication for his pain and recommended for surgery of his cervical spine by the neurosurgeon. The neurosurgeon noted that there should be fall precautions and close follow-up of Dauzat along with the administration of his pain medication.

         A few weeks later, on April 23, 2013, Dauzat had a C3-C6 laminectomy and fusion. On May 20, 2013, Dauzat had a post-operation visit at which time the neurosurgeon ordered Motrin and Neurontin, a return visit in six months, and physical therapy daily at the facility.[45] Upon Dauzat's return on the correctional center, May 20, 2013, McVea accepted the orders with the following change: “Refer to BCMC for PT”, which means refer to Bogalusa Community Medical Center for physical therapy.[46] However, Dauzat never made it to Bogalusa Community Medical Center despite Dr. McVea modification of the orders.

         Dr. McVea has final say as to whether the off-site doctors treating recommendation are accepted and if any changes need to be made he could make substitutions or changes.[47] When asked about referrals and requests from sub-specialists, McVea stated he would ...

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