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Nortrick v. Lavespere

United States District Court, M.D. Louisiana

February 22, 2019

ROY VAN NORTRICK # 708816
v.
RANDY LAVESPERE, ET AL.

          RULING AND ORDER

          JOHN W. deGRAVELLES JUDGE UNITED STATES DISTRICT COURT

         Before the Court is pro se Plaintiff Roy Van Nortrick's Motion for Preliminary Injunction (R. Doc. 3). For the following reasons, the Motion for Preliminary Injunction (“Motion”) (R. Doc. 3) is DENIED. This case is set for a status conference on April 17, 2019 at 10:00 a.m. for the purpose of discussing its readiness for trial, the need for any additional discovery and for the parties to show cause, if any they can, why the Court should not appoint its own expert pursuant to Federal Rule of Evidence 706. The parties should also be prepared to discuss all pending motions at this conference.

         I. Background

         Plaintiff, an inmate at the Louisiana State Penitentiary (“LSP”), Angola, Louisiana filed the instant Motion for Preliminary Injunction (“Motion”) in connection with a suit Plaintiff brought against Defendants Randy Lavespere, Paul M. Toce, Tracey Falgout, and the Louisiana Department of Public Safety and Corrections (“Defendants”).[1] Per this Motion, Plaintiff seeks an order directing Defendants to provide a Lantus and Humalog/Novalog insulin regime, adequate and timely access to insulin and food, restraint of officers from interfering with access to emergency diabetic treatment, and wheelchair accessible vehicles for transport to medical visits outside of LSP.

         Prior to confinement at LSP, Plaintiff was housed at the Caddo Correctional Center[2] and thereafter, at the Elayn Hunt Correction Center (“EHCC”) immediately prior to transfer to LSP.[3]When Plaintiff was transferred from the Caddo Correctional Center to EHCC, his insulin regimen was altered, and he was taken off of a regimen of Lantus and Humalog and prescribed Novolog 70/30 (“70/30”).[4] As more fully discussed below, Plaintiff has presented evidence that altering Plaintiff's insulin regime had apparent negative effects on his physical condition, so he was switched back to a regimen of Lantus and Humalog while at EHCC. Then, upon transfer from EHCC to LSP, Plaintiff's insulin regime was again changed to only injections of 70/30. Medical records reveal that Plaintiff's diabetes has been problematic while he has been housed at LSP although there are competing narratives as to why this is so. Despite apparent complications and orders from outside doctors, Defendants have failed to alter Plaintiff's insulin regime.

         Plaintiff argues, among other things, that the Defendants' refusal to provide him with the proper insulin amounts to deliberate indifference to his medical needs in violation of the Eighth Amendment to the United States Constitution. This claim forms the basis for both Plaintiff's underlying lawsuit and the instant Motion.

         II. Law and Discussion A. Legal Standard

         “A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations and quotations omitted). See also Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989) (preliminary injunctive relief “is an extraordinary remedy and should be granted only if the movant has clearly carried the burden of persuasion with respect to all four factors”); Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) (“[t]he decision to grant a request for preliminary injunction is to be treated as the exception rather than the rule”). The decision whether to grant or deny a request for a preliminary injunction is within the sound discretion of the Court. See Allied Mlttg. Grp., Inc., 878 F.2d at 809.

         At all times, the burden of persuasion remains with the Plaintiff as to each of the four elements. Specifically, Plaintiff must establish the following: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest. See Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008). If a plaintiff fails to meet his burden regarding any of the necessary elements, the Court need not address the other elements necessary for granting a preliminary injunction. See Roho, Inc. v. Marquis, 902 F.2d 356, 261 (5th Cir. 1990) (declining to address the remaining elements necessary to obtain a preliminary injunction after finding that the plaintiff failed to show a substantial likelihood of success on the merits).

         B. Plaintiff has Not Met His Burden with Respect to His Claim for a Lantus and Humalog Insulin Regimen

         1. Factor One

         First, Plaintiff must establish a substantial likelihood of prevailing on the merits of his claim. Based upon the current record, Plaintiff has not succeeded in meeting this element. In order for Plaintiff to succeed in his claim of deliberate medical indifference, he must prove that appropriate medical care has been denied and that the denial constituted “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir. 1985). Whether a plaintiff has received the treatment or accommodation that he believes he should have is not the issue. Estelle, 429 U.S. at 106. Nor do negligence, neglect, unsuccessful treatment, or even medical malpractice, give rise to a § 1983 cause of action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Rather, “subjective recklessness as used in the criminal law” is the appropriate definition of “deliberate indifference” under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 839-30 (1994). Farmer lays out both an objective prong and a subjective prong. Id. at 837. The objective prong requires plaintiffs to demonstrate that “the deprivation alleged [was], objectively, ‘sufficiently serious.'” Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, under the “subjective” prong of Farmer, a plaintiff must show that prison officials acted with a “sufficiently culpable state of mind.” Id.

         The deliberate indifference standard sets a very high bar: a plaintiff must be able to establish that the defendants “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. of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Further, a mere delay in providing medical treatment does not amount to a constitutional violation without both deliberate indifference and a resulting substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Here, Plaintiff argues that Defendants intentionally treated Plaintiff incorrectly.[5] Plaintiff specifically alleges that the 70/30 regimen of insulin provided by Defendants is ineffective for his condition, and his condition instead requires a combination of Lantus and Humalog/Novolog (an intermediate/long-lasting insulin and a rapid/short acting insulin used in combination)[6] and that the Defendants were and continue to be aware of this fact.[7]

         Medical records indicate that on at least two occasions (once before and once after Plaintiff was admitted to LSP), outside physicians noted the insufficiency of the 70/30 regimen for Plaintiff's condition and changed Plaintiff's insulin regimen to the regimen Plaintiff was on prior to going to prison, which regimen is the same he seeks in the instant motion.[8] Each of these outside physicians switched Plaintiff to a long-acting injectable insulin once per day to be used in conjunction with another fast-acting insulin injection three times per day (one before each meal), not 70/30 insulin.[9] Despite these orders to change Plaintiff's insulin regimen, LSP doctors refused and continued Plaintiff on a regimen of 70/30 insulin twice per day.

         With respect to the instance prior to transfer to LSP, while Plaintiff was housed at EHCC, Plaintiff's condition rapidly deteriorated after being switched from a Lantus/Humalog insulin regimen to a 70/30 regimen, and on June 25, 2016, Plaintiff was admitted to Our Lady of the Lake as a result of low-grade diabetic ketoacidosis.[10] Plaintiff's treating physician at Our Lady of the Lake, Dr. Matthew Buzhardt noted as follows regarding Plaintiff's insulin regimen:

[Plaintiff] was on a regimen of 35 units of Lantus once a day when he was in the free world. Since going to prison, he was somehow changed to 5 units 70/30 twice a day, clearly not enough coverage for him. But he says even when on appropriate amount of 70/30, this just was a medication that just never controlled his glucoses that well. . . . He came to the ED with nausea and vomiting. . . . I have adjusted his regimen. Going to start him off at 25 units of Lantus at night with continued sliding scale coverage and mealtime coverage, and this can be titrated by the prison doctor as needed. I think that his early DKA was due to a change in regimen and not noncompliance. . . .[11]

         Plaintiff's final medication list upon discharge from Our Lady of the Lake indicates he was to begin a regimen of Humalog three times daily with meals and insulin glargine (Lantus) daily.[12]

         EHCC followed Dr. Buzhardt's instructions and discontinued the 70/30 regimen, but, once transferred to LSP, Plaintiff again began receiving the 70/30 regimen. While receiving the 70/30 insulin, Plaintiff alleges he has suffered from numerous diabetic emergencies, including shakiness, lethargy, various unresponsive states, and in at least two instances, reports indicate that Plaintiff's low blood sugar caused him to suffer from seizures.[13] Numerous inmates have attested to their personal observations of Plaintiff and the aid they have had to render to Plaintiff when he suffers from hypoglycemia, including providing Plaintiff with their own meals, juice, soda, and administering glucose from glucose tubes to ensure Plaintiff's blood sugar levels increase.[14]

         For example, one inmate, Tyrone Washington, who was housed with Plaintiff at both Caddo Correctional Center and LSP, observed that while at the Caddo Correctional Center, when Plaintiff was receiving a regimen of Lantus and Humalog, Plaintiff “hardly ever had any of these [low blood sugar] attacks like he does now that he has been at LSP.”[15] He saw Plaintiff “go weeks without a low blood sugar episode while he was receiving the proper type of insulin while we were housed in Caddo Parish prior to transfer to DPS&C. Now he suffers all the time, multiple times every week and it is just a matter of time before these people kill him.”[16] Regarding one episode of hypoglycemia, another inmate, Christopher Gaudet, attested that in May 2018, “another inmate and [Mr. Gaudet] had to pull a tube of glucose out of Mr. Van Nortrick's mouth because he had almost accidentally swallowed it while his blood sugar bottomed out suddenly and his sugar was too low to know what he was doing.”[17]

         One particularly troubling incident involving low blood sugar occurred on December 19, 2017, when, following a fall, which fractured his right tibial shaft and lateral malleolus, Plaintiff was admitted to the University Medical Center in New Orleans.[18] On this date, lunch was called late (not until 3:10 p.m.), and as Plaintiff was walking to obtain his food tray, he “fell out in a low blood sugar attack.”[19] Since the fracture apparently occurred secondary to a hypoglycemic event, Plaintiff was seen by the internal medicine as well as the orthopedic department. Plaintiff underwent surgery to fix his leg fracture, and was kept in the hospital for “mobilization and monitoring of compartments post-surgery as well as better glucose control.”[20] Upon discharge, Plaintiff was ordered to cease using 70/30 injections and begin taking Novolog injections three times daily before meals along with an insulin detemir (LEVEMIR)[21] injection once daily at nighttime.[22] Upon return to LSP, despite the above orders, Plaintiff's insulin regime remained unchanged.

         Defendants justify their actions by contending that, while not the treatment preferred or desired by Plaintiff, the 70/30 treatment is adequate[23] and that it is Plaintiff's “noncompliance” with his insulin regime that is the reason why the 70/30 has not worked properly. But this assertion of noncompliance is not clearly supported by the record. Defendants particularly point to the time period of August 10, 2016 through September 17, 2016, arguing the records show that Plaintiff was not taking his medicines. However, the Medication Administration Records for this time period tell conflicting stories.[24] The handwritten medication administration records indicate that Plaintiff appeared for his morning and evening glucose checks on all days in the aforementioned timeframe, except on seven occasions, and these records include Plaintiff's blood glucose reading.[25] However, the electronic records indicate Plaintiff was a no-show on the above-mentioned dates for both morning and evening glucose checks.[26] Moreover, Plaintiff has attested that he has missed meals, not deliberately, but due to sleeping through the meals due to severe lethargy caused by uncontrolled diabetes.[27] In addition, at times, Plaintiff urges that he simply cannot eat because he is experiencing nausea and vomiting allegedly caused by the ineffectiveness of the 70/30 insulin.[28]

         Further, Defendants contend that because Plaintiff's HgA1C[29] levels have improved, his diabetes is, per se, effectively managed by 70/30. However, the record does not support such a clear finding of improvement and instead, indicates that Plaintiff's HgA1C levels fluctuate. On June 29, 2016, Plaintiff's HgA1C level was 8.5.[30] On September 9, 2016, after roughly one month of treatment with 70/30, Plaintiff's HgA1C was 10.2%.[31] On January 11, 2017, Plaintiff's HgA1C levels were 12.0%.[32] By May 23, 2017, Plaintiff's HgA1C dropped to 8.3%, [33] but by October 2, 2017, it again increased to 9.5%.[34] Considering the fluctuations in Plaintiff's HgA1C level, the fact that kidney function is merely one indicator of the effectiveness of diabetic treatment, and that this number is only one indicator of Plaintiff's kidney health, the Court cannot conclude, as Defendants suggest, that Plaintiff's kidney function has improved since Plaintiff's transfer to LSP, and that this improved kidney function per se means Plaintiff's diabetes is being effectively managed by the 70/30 regimen.

         Finally, Defendants submit letters from the Louisiana State Board of Medical Examiners sent in response to Plaintiff's complaints against Defendants. They state in pertinent part: “Upon a review and evaluation of the information presently available, the Board has decided to take no further action and close this investigation.”[35] However, the fact that the Board terminated their investigation based on “information presently available” is not dispositive. The information, which was available to the Board, is not apparent from the record.

         While Plaintiff has presented evidence indicating that he might win at a trial on the merits, there are too many unresolved issues of fact and medical expert opinion to conclude on the record before it that there is a “substantial likelihood” of success so as to warrant a preliminary injunction. Defendants were aware of Plaintiff's prescribed Lantus and Humalog treatment when he was transferred to LSP. The records suggest that once Plaintiff was prescribed a regimen of 70/30 instead of Lantus and Humalog, [36] he began to suffer from complications of diabetes including numerous hypoglycemic episodes, as described above. Further, as previously mentioned, after suffering a fracture, Plaintiff was evaluated by an outside professional and was placed back on a regimen including a long-lasting insulin once daily and a fast-acting insulin three times daily before meals and specifically, taken off 70/30. These orders were sent to LSP, but LSP continued to administer 70/30 to Plaintiff.[37] However, at this time, the Court cannot conclude this decision was one of deliberate indifference. Therefore, Plaintiff has not demonstrated on this record a substantial likelihood of prevailing on the merits and thus has not satisfied element one.

         2. Factor Two

         Next, the Court finds that Plaintiff has sufficiently established a substantial threat of irreparable injury. As described above, the available medical records support Plaintiff's assertions that his diabetes is not well controlled and that this is due, at least in part, to being given an insulin that does not adequately control his condition. Due to this poor control, Plaintiff has suffered from numerous hypoglycemic attacks, some even resulting in seizures. In addition, as described above, Plaintiff has also already sustained a leg fracture, which required surgery, arguably as a result of a hypoglycemic episode. Numerous other inmates have come forward to testify via affidavits regarding the frequency and severity of what appear to them as Plaintiff's hypoglycemic attacks. The consequences of such poorly controlled diabetes are apparent from the record, and accordingly, Plaintiff has established a substantial threat of irreparable injury.

         3. ...


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