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Smith v. Iverson

United States District Court, D. Nebraska

September 16, 2019

PHILLIP SMITH, Plaintiff,
v.
WILLIAM W. IVERSON; MARK LONG; ALAN MOORE; JEFF MULBERRY; SALINE COUNTY; CITY OF WILBER; TAD EICKMAN; ADAM DRAKE; TROY MILLER; KOREEN MULLEN; MARSHALL LUX; and BARB BRUNKOW, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff, Phillip Smith (“Smith”), an inmate at USP Leavenworth, filed his Complaint (Filing 1) on July 5, 2019. Smith has been granted leave to proceed in forma pauperis and he has paid the required initial partial filing fee. The court now conducts an initial review of the Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.

         I. SUMMARY OF COMPLAINT

         Smith claims he did not receive adequate medical treatment at the Saline County jail while he was being detained pending trial on federal drug charges.[1] He seeks to recover compensatory and punitive damages from ten named defendants, [2] all of whom are sued in their individual and official capacities:

1. William W. Iverson (“Iverson”) Supervisory Deputy, U.S. Marshals Service Metro Fugitive Task Force
2. Mark Long (“Long”) Deputy, U.S. Marshals Service Metro Fugitive Task Force
3. Alan Moore (“Moore”) Saline County Sheriff
4. Jeff Mulberry (“Mulberry”) Saline County Jail captain
5. Adam Drake (“Drake”) Saline County Jail administrator
6. Dr. Troy Miller (“Miller”) Saline County Jail outside medical provider
7. Koreen Mullen (“Mullen”) Saline County Jail nurse
8. Tad Eickman (“Eickman”) Saline County Attorney
9. Marshall Lux (“Lux”) Nebraska State Ombudsman
10. Barb Brunkow (“Brunkow”) Assistant Ombudsman

(Filing 1, pp. 2-3, 16-18)

         Smith alleges he was arrested by the Central Nebraska Safe Streets Drug Task Force on April 18, 2018, and turned over the United States Marshals Service two days later.[3] On the evening of April 20, 2018, he was transported to the Saline County jail.

         Smith alleges he first saw Nurse Mullen on April 23, 2018, at which time he told her that his right collarbone was broken. This injury had occurred almost six months earlier, on October 31, 2017, during a prior arrest. Smith alleges he also informed Mullen that he required daily prescription medication, including Flomax and Avodart for prostate problems, and Amlodipine for high blood pressure. Smith complains he did not receive the medicine until one week later, on April 30, 2018, and alleges that in the interim he was “housed in solitary confinement for complaining about headaches and dizziness, requesting my blood pressure be checked because it had been over a week since my last dose of medication, and for not receiving any medical treatment for said broken collarbone.” (Filing 1, pp. 36-40)

         Smith alleges he then began submitting inmate request forms to medical staff on a daily basis complaining about the lack of treatment for his broken collarbone. (Filing 1, p. 39) Inmate request forms attached to the complaint include the following:

• 5/4/18. Smith complains he is having a lot of pain and discomfort from his right collarbone which prevents him from sleeping at night, and states he was scheduled for surgery on 4/20/18. Nurse (Mullen?) responds: “Will fax for records for facility MD to review. (Filing 1-1, p. 1)
• 5/5/18. Smith complains he is experiencing extreme pain from his broken collarbone and cannot sleep. The nurse responds: “Avoid activity that causes pain/discomfort, Tylenol/Ibuprofen for pain.” (Filing 1-1, p. 2)
• 5/6/18. Smith asks if the U.S. Marshal can be contacted about getting some type of treatment for the broken collarbone. The nurse responds as before. (Filing 1-1, p. 3)
• 5/8/18. Smith complains he is “starting to experience neck and chest pain from my right side of my upper torso around my right collarbone area. The nurse responds: “Will have MD review your records and proceed from there. Continue with Tylenol/ Ibuprofen for pain. (Filing 1-1, p. 4)
• 5/8/18. Smith states he was seen by Dr. Choy, Dr. Frey, and Dr. Bowling before being scheduled for surgery on 4/20/18. The nurse responds: “have faxed for your records & request for surgery schedule you may have had. At this time it is MD expertise to give orders as he feels. (Filing 1-1, p. 5)
• 5/8/18. Smith says he does not appreciate “the lies and documentation about me playing basketball” and generally complains about the lack of adequate medical attention. The nurse responds: “You have been seen by MD. Awaiting your records of need for surgery. MD will then review. Documentation of you playing basketball was done when I was not here. You are receiving medical attention.” (Filing 1-1, p. 6)
• 5/9/18. Smith complains he is experiencing sharp pain from the top of his right pectoral muscle toward the middle of his chest. The nurse responds: “Tylenol or Ibuprofen available off med cart for pain. Avoid activity that causes pain/discomfort.” (Filing 1-1, p. 7)
• 5/10/18. Smith complains he is still experiencing extreme pain and discomfort despite taking ibuprofen, and demands surgery based on his doctors' recommendations. The nurse responds: “MD will review your records and will proceed from there. Tylenol or Ibuprofen for pain.” (Filing 1-1, p. 8)
• 5/11/18. Smith complains he still has pain in his neck, chest and collarbone area, and is starting to feel numbness in the fingers of his right hand. He also inquires about MD's review of his medical records. The nurse responds: “Advised you of MD expertise opinion. Use Tylenol or Ibuprofen off cart for pain.” (Filing 1-1, p. 10)
• 5/11/18. Smith states that “the medical assessment by the jail's MD is not acceptable.” The nurse responds: “USM faxed for approval to see jail MD.” (Filing 1-1, p. 12)
• 5/13/18. Smith states he is having complications from his broken collarbone and wants to be seen medically. The nurse responds as before. (Filing 1-1, p. 11)
• 5/14/18. Smith again states that “the medical assessment by the MD is not acceptable.” The nurse responds: “You will be seen by facility MD when he is here next.” (Filing 1-1, pp. 13, 15)
• 5/14/18. Smith files a grievance stating that “the medical assessment by the MD is not acceptable.” The response (signed by Jail Administrator Drake?) states: “You have seen our doctor twice. We trust and utilize his expertise.” (Filing 1-1, pp. 14, 16)

         Smith alleges he was seen by Dr. Miller on May 16, 2018, and was told that he would not receive surgery for his broken collarbone “anytime soon, ” and that “U.S.M.S. said you'll get your surgery when you get to where you're going, ” i.e., prison. Smith alleges Dr. Miller told him his shoulder was “fine without even examining the area.” (Filing 1, pp. 41-42) The doctor's notes for that jail visit, which are attached to Smith's Complaint, read as follows:

Phillip is in here with his clavicle issue again. He wants surgery on it. We have been able to get most of the records from his orthopedic evaluations over the past year. Basically the story goes, he was running away from law enforcement, fell, fractured his clavicle. Evaluations revealed it to be stable. Basically sent him to jail with a sling. Subsequent to getting out of jail, went and saw Ortho, had a concern for a nonunion, was offered a surgery. He stated that he would wait until he had insurance and come back and have the surgery. Did schedule surgery and then failed to show. Then he showed back up with a different surgeon. Different surgeon said, “You know, it's probably not surgical at this point. Let's monitor it and see how you do, ” and that is where it was left at. Phillip is not happy with this answer. I have seen him previously. His range of motion is intact in that shoulder. I could not produce any tenderness either. I explained all of this to him, and also the fact that he has been witnessed using that arm normally without any difficulty or issues. He is going to file multiple complaints, sounds like the ACLU is involved. Sounds like he is going back on the initial arrest as far as who is responsible for all this. I told him at this point I would recommend continued range of motion therapy, Tylenol and ibuprofin. With further evaluation pending.
ASSESSMENT: History or right clavicle fracture.
PLAN: Reassurances given. Nonsurgical at this point. Further evaluation pending with Ortho at a date to be determined.

(Filing 1, p. 73)

         Smith alleges he was complaining about pain on May 17, 2018, and was transported to the emergency room at the Crete Medical Center. The ER doctors allegedly “concured [sic] close displaced fracture of right clavicle with non-union ‘surgery'.” (Filing 1, p. 43) However, documentation of this encounter merely includes diagnoses of “chest wall pain” and “closed displaced fracture of right clavicle with nonunion, unspecified part of clavicle; subsequent encounter.” No. medication or treatment was prescribed; Smith was directed to follow-up with Dr. Miller. (Filing1-3, p. 3)

         On May 20, 2018, Smith filed a grievance about not receiving approval for surgery to repair his broken collarbone. The response (signed by Drake?) was: “USMS have been contacted about this situation. We stand by our doctor's decision.” (Filing 1-1, p. 19) On May 22, 2018, Smith submitted an identical complaint to medical staff. The nurse responded: “USM's have been made aware of your situation. It is the MD's knowledge and expertise on medical issues.” (Filing 1-1, p. 20)

         On May 24, 2018, at the request of the Saline County jail administrator, Deputy U.S. Marshal Long forwarded Smith's medical records to USMS headquarters for a second opinion as to whether clavicle surgery was needed at that time. (Filing 1, p. 61)

         On May 25, 2018, Smith filed another grievance, stating: “MD hasn't did anything concerning my broken right cervical, he hasn't even examined or even looked at it. I was just told in a brief 2 min visit with him on the 15th [sic] May that I wouldn't be receiving surgery anytime soon. That was it.” The response (signed by Sheriff Moore?) stated: “You have seen our doctor and your information has been forwarded to the U.S. Marshals.” (Filing 1-1, p. 21)

         On May 29, 2018, Smith submitted another inmate request form to medical staff complaining about swelling in his right arm and loss of feeling in his fingers. The nurse responded: “USM is aware of the situation. You have been seen by facility MD. Ibuprofen or Tylenol on med cart for pain.” (Filing 1-1, p. 22)

         The request for surgery was denied on May 31, 2018, with the reviewing physician, Ulana Bodnar, MD, FACP, stating:

This is a 50 year old who sustained a closed fracture of his right distal clavicle on 31 October 2017. Up until December 2017, the prisoner was seeing an orthopedic surgeon who felt that if the prisoner was having too much pain, a surgical procedure could be done. However, there was no urgency to the procedure and according to the surgeon, the “operation is the same today as it is any year” (note from 29 December 2017). The prisoner then saw another orthopedic surgeon in early 2018 apparently on the recommendation of his primary care provider. At the last visit on 19 March 2018, this second orthopedic surgeon recommended placing a plate in the fracture since it had not healed (i.e., non-union) and then removing the plate in future. It is unclear if surgery was ever scheduled, and the prisoner entered USMS custody on 18 April 2018.
On 16 May 2018, the facility physician's note documents full range of motion of the affected shoulder and no tenderness could be reproduced on physical examination. In addition, various documentation has been reviewed from the facility since incarceration which indicates the prisoner has little difficulty using his right shoulder and right arm - he is able to play basketball and wipe tables. Nonetheless, the second orthopedic surgeon was contacted today regarding the urgency of the surgery even though all indications pointed to the fact that surgery was not of an urgent nature. The orthopedic surgeon's office (the assistant, Deirdra) stated that the surgery could wait, it was not urgent, and that the patient was functional.
Therefore, based on all of the above information, the clavicular surgery is denied at this time. Please return this request for reconsideration if clinically indicated in future.

(Filing 1, p. 64)

         Smith alleges he responded to this denial letter on June 5, 2018, and emailed to the USMS reviewing physician “full clinical reports ... of all five (5) doctors that recommended surgery ....” (Filing 1, pp. 45-46) Smith stated in his response that the denial letter “failed to mention that I went to Crete Area Medical Center on May 17th the day after I seen facility medical doctor here at Saline County Jail. I have been complaining about chest pain and numbness in right arm and fingers. The ER doctor determined after a EKG, Lab and X-ray that I test positive for chest pain due to broken right clavicle and recommended closure of said clavicle.” Smith claimed, “I've only seen [Dr. Miller] twice and [he] has never examined said area injured and still has not till this day.” Smith also denied he was playing basketball at the jail. (Filing 1, p. 65)

         On June 14, 2018, Smith was sent to the Leavenworth Detention Center for medical evaluation. (Filing 1, pp. 39, 46) On July 18, 2018, Smith had a consultative exam at Providence Medical Orthopedics in Kansas City, Missouri. (Filing 1, p. 48) Smith returned to the Saline County jail on July 19, 2018, but was sent back to the Leavenworth Detention Center on August 2, 2018. (Filing 1, pp. 48-49) Surgery to repair the broken collarbone was performed on September 25, 2018, at the Providence Medical Center. (Filing 1, p. 50) Smith complains he did not receive prescribed pain medication or physical therapy after being returned to the Saline County jail on October 31, 2018. (Filing 1, pp. 50-51)

         Smith alleges “the inadequate medical care and the denial of medical treatment and surgery directly affected the integrity of my physical and mental capacity. Additional ligiment [sic] damage, and blood vessel and nerve damage was sustained, as well ...


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