Kemp v. Wellpath, LLC

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LAMAR KEMP PLAINTIFF v. WELLPATH, LLC, Medical Services Provider for the Arkansas Division of Corrections; DR. THOMAS N. DANIEL, Day Clinic, Special Needs Unit; DR. NANNETTE VOWELL, Hospital, Special Needs Unit; and NURSE HARRIS DEFENDANTS

Civil No. 6:22-CV-06085-SOH-MEF

United States District Court, W.D. Arkansas, Hot Springs Division

January 16, 2024

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

HON MARK E. FORD UNITED STATES MAGISTRATE JUDGE

This is a civil rights action filed by Plaintiff, Lamar Kemp, a prisoner, pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis (“IFP”). Pursuant to the provisions of 28 U.S.C §§ 636(b)(1) and (3), the Honorable Susan O Hickey, Chief United States District Judge, referred this case to the undersigned for the purposes of making a Report and Recommendation on Defendants' Motion for Summary Judgment. (ECF No. 30). For the reasons outlined below, the undersigned recommends that Defendants' Motion for Summary Judgment be DENIED, in part, and GRANTED, in part.

I. BACKGROUND

The Court initially viewed Plaintiff's Complaint as consisting of five claims against the Defendants in their official and individual capacities: (1) that Defendants Wellpath, LLC (“Wellpath”), Daniel and Harris denied Plaintiff high-top shoes in violation of the Eighth Amendment; (2) that Defendants Wellpath, Daniel, and Harris denied Plaintiff high-top shoes in violation of the Americans with Disabilities Act (ADA); (3) that Defendants Daniel, Vowell, and Wellpath denied Plaintiff proper medical care from January 2021 until the filing of the Complaint (July 25, 2022), by failing to control his hypertension in violation of the Eighth Amendment; (4) that Defendants' failure to provide Plaintiff with high-top shoes constitutes negligence and malpractice under Arkansas state tort laws; and (5) that Defendants' failure to control Plaintiff's hypertension from January 2021 until the filing of the Complaint (July 25, 2022), constitutes negligence and malpractice under Arkansas state tort laws. (ECF No. 1).

Upon initial review of Defendants' Motion for Summary Judgment, memorandum, and statement of facts in support, the Court ordered Defendants to clarify whether they are pursuing summary judgment as to all or only some of Plaintiff's claims. (ECF No. 39). Plaintiff responded saying that he was not pursuing a separate claim under the ADA, but rather asserting that Defendants' failure to comply with the ADA is evidence in support of his claims that Defendants violated the Eighth and Fourteenth Amendments in failing to provide him with high-top shoes. (ECF No. 40). Defendants subsequently filed a Supplement in support of their Motion for Summary Judgment. (ECF No. 41).

The Court then directed Plaintiff to file any response to the Supplement by August 4, 2023. (ECF No. 42). After granting Plaintiff's request for an extension of time to file his response, Plaintiff filed a Motion to Stay the proceedings asserting that his legal paperwork had been taken from him and that the person assisting him could no longer do so. (ECF Nos. 45, 46). The Court denied Plaintiff's request for a stay, granted him additional time to respond to Defendants' Supplement in Support of the Motion for Summary Judgment, and ordered the Arkansas Division of Correction (“ADC”) to return Plaintiff's legal paperwork to him. (ECF Nos. 47-48). On October 2, 2023, the Court received notification that Plaintiff's legal paperwork had been returned to him. (ECF No. 51).

Plaintiff subsequently filed a self-styled Motion for Reversal, asserting that he had received a disciplinary sanction for allowing another inmate to assist him with these proceedings. (ECF No. 50). The Court denied that motion, construing it both as a motion to amend and as a motion to supplement the Complaint. (ECF No. 52). The Court has now received Plaintiff's response to Defendants' Supplement to the Motion for Summary Judgment and a supplemental statement of undisputed facts in support. (ECF Nos. 53-54). Defendants' Motion for Summary Judgment is therefore ripe for consideration.

II. LEGAL STANDARD

The court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party.” Ward v. Olson, 939 F.Supp.2d 956, 961 (D. Minn. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material only when its resolution would affect the outcome of a case. Anderson, 477 U.S. at 248.

Further, the moving party bears the initial burden of identifying “those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2001). In response, the non-moving party “may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002). In considering a summary judgment motion, the court views all the evidence and inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.

III. SUMMARY OF THE FACTS

Plaintiff is in the custody of the Arkansas Division of Correction (the “ADC”). (Def. Stat. Undisputed Facts ¶ 1, ECF No. 32). Plaintiff suffers from hemiplegia from an accident that occurred prior to his incarceration.^[1] Id. ¶ 2. Plaintiff's medical history is also significant for the removal of his left kidney. Id. Plaintiff suffers from end-stage renal disease and began receiving dialysis in February 2016. Id. In addition to hemiplegia, Plaintiff also suffers from hypertension and diabetes. Id.

According to Plaintiff's prison medical records, on March 9, 2021, Plaintiff complained of chest pain during dialysis. Id. ¶ 3. Defendant Nannette Vowell, M.D., examined him and performed an EKG, which was abnormal, and she then ordered Plaintiff transferred to the hospital for further evaluation. Id. On March 10, 2021, Defendant Daniel renewed Plaintiff's Lisinopril prescription. Id. ¶ 4. On March 28, 2021, Plaintiff again complained of chest pains. Id. ¶ 5. Defendant Vowell ordered Plaintiff to be transferred to the hospital for further evaluation. Id. On April 9, 2021, Plaintiff reported chest and left arm pain. Id. ¶ 6. Defendant Vowell examined him, performed another EKG, and then ordered him to be transported to the hospital for further evaluation. Id. On April 26, 2021, Defendant Daniel renewed Plaintiff's prescription for Clonidine. Id. ¶ 7.

On May 26, 2021, Plaintiff reported that he threw his high-top shoes away. Id. ¶ 8. On May 31, 2021, Plaintiff complained of nausea and vomiting, he denied chest pains and his respirations were unlabored, but his blood pressure was 227/115. Id. ¶ 9. Defendant Daniel was notified of Plaintiff's condition and ordered that Plaintiff be placed on observation and that his blood pressure be checked again in one hour. Id. After re-check, his blood pressure registered at 120/61 and he was released from observation. Id.

In June 2021, Defendant Daniel examined Plaintiff. Id. ¶ 10. Although Plaintiff's blood pressure was under control, Plaintiff reported that he does not take his blood pressure medication in the morning prior to dialysis. Id. Plaintiff also reportedly said that he had not been walking. Id. Defendant Daniel ordered a consult with orthotics, renewed Plaintiff's blood pressure medication, and counseled him on taking his medication. Id. On June 24, 2021, Plaintiff returned to Health Services, complaining of chest pain. Id. ¶ 11. Defendant Daniel examined Plaintiff and noted that he was alert, his vital signs were within normal limits, and that he used a wheelchair for ambulation. Id. Defendant Daniel ordered an EKG and requested a cardiology consultation. Id.

On August 9, 2021, Defendant Harris offered Plaintiff a “regular” wheelchair, but Plaintiff declined. Id. ¶ 12. On September 7, 2021, Arkansas Orthotics and Prosthetics (“AOP”) examined Plaintiff and did not recommend high-top shoes because Plaintiff was reportedly “nonambulatory.” Id. ¶ 13. Defendant Daniel renewed Plaintiff's Lisinopril prescription on September 7, 2021. Id. ¶ 14. On September 7, 2021, Defendant Daniel also examined Plaintiff during Plaintiff's “chronic care” visit. Id. ¶ 15. During this visit, Defendant Daniel reviewed the report from AOP and prescribed Plaintiff medical shoes and a specialty wheelchair from the Spinal Commission. Id. Defendant Daniel also again counseled Plaintiff on the importance of taking his blood pressure medication. Id.

On October 11, 2021, Defendant Daniel ordered Hydralazine. Id. ¶ 16. On October 22, 2021, Defendant Daniel renewed Plaintiff's prescription for Clonidine. Id. ¶ 17. On January 2, 2022, Defendant Daniel examined Plaintiff during a “chronic care” visit. Id. ¶ 18. During that visit, Plaintiff again requested “high-top shoes,” but Defendant Daniel denied that request based on the report from AOP saying that high-top shoes were not medically necessary because Plaintiff used a wheelchair for ambulation. Id. Defendant Daniel also encouraged Plaintiff to be consistent in taking his blood pressure medication. Id. On January 6, 2022, Defendant Daniel ordered Amiodipine. Id. ¶ 19.

In March 2022, Defendant Daniel examined Plaintiff during another “chronic care” visit. Id. ¶ 20. During that visit, Plaintiff's blood pressure was elevated, and Plaintiff reported that he did not take his medication due to dialysis. Id. Defendant Daniel again encouraged Plaintiff to be consistent in his use of...