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Washington v. Esch

United States District Court, D. Nebraska

November 9, 2017

DEROISE J. WASHINGTON, Plaintiff,
v.
DR. JACQUELINE ESCH, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on Defendant's motion for summary judgment, filed on October 10, 2017 (Filing No. 30). Plaintiff has not responded to the motion, which will be granted.

         In accordance with the court's local rules, Defendants' brief (Filing No. 31) includes “a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” NECivR 56.1(a)(1). This statement of material facts is supported by evidence in the record (Filing Nos. 31-1 to 31-19). Because Plaintiff has not responded to the motion for summary judgment, Defendants' statement of material facts is considered admitted. See NECivR 56.1(b)(1).

         I. UNDISPUTED FACTS

         Plaintiff Deroise Washington was a pretrial detainee at the Douglas County Adult Detention Center (“Douglas County Jail”) from October 23, 2016 to June 21, 2017. [Filing No. 31 at CM/ECF p. 4, ¶ 1.] This action was filed on January 26, 2017, while Plaintiff was a prisoner.[1] [Filing No. 1.] On or about June 21, 2017, Plaintiff was released from the Douglas County Jail on bond. [Filing No. 31 at CM/ECF p. 11, ¶ 45.]

         Defendant Jacqueline Esch is a medical doctor employed by Correct Care Solutions, LLC (“CCS”), a private corporation that provides medical services in correctional settings throughout the country. CCS has a contract with Douglas County to provide medical and mental health services at the Douglas County Jail. Esch is the medical director for CCS at the Douglas County Jail. [Filing No. 31 at CM/ECF pp. 4-5, ¶¶ 2-4.]

         Plaintiff did not receive a medical intake interview on the day he arrived at the Douglas County Jail because of an incident in which a correctional officer believed that Plaintiff had violated correctional rules. Plaintiff did see a nurse on October 26, 2016, at which time he filled out a release, authorizing his pharmacy to release a list of his prescriptions to CCS. Dr. Esch evaluated Mr. Washington and directed that he be provided with a walker to assist with movement on or about November 1, 2016. [Filing No. 31 at CM/ECF p. 5, ¶¶ 5-7.]

         Dr. Esch next saw Plaintiff on or about November 16, 2016. During that encounter, she discussed goals of reducing his blood pressure, improving his ability to ambulate with the walker, and decreasing his pain from arthritis. By the time Dr. Esch saw Plaintiff on November 16, 2016, a nurse-practitioner at the Douglas County Jail had directed that Washington continue to receive Amlodipine, a prescription medication to reduce blood pressure, for which he had a prescription prior to being incarcerated. [Filing No. 31 at CM/ECF pp. 5-6, ¶¶ 8-9.]

         After the November 16, 2016 encounter, Dr. Esch wrote a prescription for Plaintiff to receive two other prescription medications to reduce blood pressure that he had not been previously receiving. Plaintiff's blood pressure improved during his incarceration at the Douglas County Jail. [Filing No. 31 at CM/ECF p. 6, ¶¶ 10-11.]

         During the November 16, 2016 visit with Dr. Esch, Plaintiff indicated he was suffering from pain due to arthritis. Dr. Esch explained to Plaintiff that while he could receive various non-steroidal anti-inflammatory drugs (“NSAIDs”) such as Tylenol, ibuprofen, Mobic, and naproxen to relieve pain, he could not take such medications on a continuous basis. Dr. Esch explained that, in her medical judgment, continuous use of NSAIDs was not in Plaintiff's best interest because it could result in negative side effects such as gastrointestinal bleeding, damage to the liver and kidney, increased hypertension, increased risk of adverse cardiovascular events, and would actually worsen chronic pain. Plaintiff was given a limited quantity of Tylenol. [Filing No. 31 at CM/ECF p. 6, ¶¶ 12-15.]

         When Dr. Esch saw Plaintiff again on November 29, 2016, he indicated he was suffering pain. Dr. Esch again explained to Plaintiff why she could not provide him with NSAIDs on a continuous basis, but did direct that he be provided with Mobic for 7 days. [Filing No. 31 at CM/ECF p. 7, ¶¶ 16-17.]

         During his incarceration at the Douglas County Jail, Plaintiff was seen by mental health practitioners for various mental health issues including anxiety and depression. Because Plaintiff continued to complain of pain and because in her medical judgment, it was not in his best interest to receive NSAIDs on a continuous basis, Dr. Esch discussed with mental health practitioners at the Douglas County Jail whether Plaintiff could receive Cymbalta, an anti-depressant that has also been approved by the FDA for pain relief. [Filing No. 31 at CM/ECF p. 7, ¶¶ 18-19.]

         Tawanda Mercer, a psychiatric Nurse Practitioner employed by CCS at the Douglas County Jail, told Dr. Esch that Plaintiff could be prescribed Cymbalta, but that he would need to discontinue taking Zoloft, another anti-depressant. On or about December 16, Anne Aloziem, a Nurse Practitioner, employed by CCS at the Douglas County Jail, explained to Washington that if he was willing to discontinue Zoloft, he could receive Cymbalta, which could be effective in treating both depression and pain. [Filing No. 31 at CM/ECF pp. 7-8, ¶¶ 20-21.]

         On or about January 4, 2017 Plaintiff was seen by Dr. Esch again. During this encounter, Plaintiff indicated he needed medication for pain, and Dr. Esch asked if he preferred Mobic, Tylenol, or ibuprofen. Plaintiff indicated he preferred Tylenol. Dr. Esch provided Plaintiff with a few days' worth of Tylenol, but advised him that she could not provide it on a continuous basis because of the negative side effects associated with continuous use of NSAIDs. [Filing No. 31 at CM/ECF p. 8, ¶¶ 22-25.]

         On or about March 8, 2017, Plaintiff was seen by Dr. Esch again. During that visit, Plaintiff stated that he needed a wheelchair and that his primary care doctor had directed him to use one. Dr. Esch was not previously aware that Plaintiff had been directed to receive a wheelchair. In Dr. Esch's medical judgment, it was preferable for Plaintiff to ambulate with his walker to prevent blood clots or deconditioning. [Filing No. 31 at CM/ECF pp. 8-9, ¶¶ 26-29.]

         During or shortly after the March 8, 2017 visit, Plaintiff retrieved a letter signed by his doctor from his cell indicating that he used a wheelchair. Dr. Esch had not previously seen the letter from Plaintiff. Dr. Esch advised Plaintiff that he should use the walker as much as possible, but that she would direct that a wheelchair be provided to him. Dr. Esch did, in fact, direct that Plaintiff be provided with a wheelchair, and this was accomplished. [Filing No. 31 at CM/ECF p. 9, ¶¶ 30-33.]

         On or about April 7, 2017, Plaintiff was again seen by Dr. Esch and Plaintiff's pain was discussed again. During this visit, Dr. Esch again explained to Plaintiff that he could be provided with Cymbalta to address both his pain and depression, but that he needed to discontinue Zoloft first. It was Dr. Esch's understanding that Plaintiff was previously unwilling to discontinue Zoloft and to switch ...


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