United States District Court, D. Minnesota
Norlyn Stanley Nelson, MCF-Faribault, 1101 Linden Lane, Faribault, MN 55021.
Robert D. Goodell and Bryan D. Frantz, Anoka County Attorney's Office, 2100 3rd Avenue North, Anoka, MN 55303 (for Defendants James Stuart and Anoka County Jail).
Bryon G. Ascheman and Richard J. Thomas, Burke & Thomas PLLP, 3900 Northwoods Drive, Suite 200, St. Paul, MN 55112 (for Defendant Doctor John Loes).
REPORT & RECOMMENDATION
TONY N. LEUNG, Magistrate Judge.
This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendant Anoka County Sheriff James Stuart's ("Sheriff Stuart") Motion for Summary Judgment (Docket No. 80) and Defendant Doctor John Loes's Motion for Summary Judgment (Docket No. 93). These motions have been referred to the undersigned for a report and recommendation to the District Court, the Honorable David S. Doty, District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.
A number of significant events have occurred since the filing of the Amended Complaint (Am. Compl., Docket No. 10).
First, Sheriff Stuart and Defendant Anoka County Jail moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). (Docket No. 13.) Judge Doty adopted this Court's report and recommendation in its entirety, thereby granting the motion to dismiss with respect to Anoka County Jail and denying the motion with respect to Sheriff Stuart. (Docket Nos. 31, 36.)
Second, Plaintiff Norlyn Stanley Nelson ("Nelson") moved to amend his Amended Complaint. (Docket No. 51.) Nelson's motion to amend was granted in part on March 22, 2013 and, to date, Nelson has not filed a Second Amended Complaint. When leave to amend has been granted by this Court, the Local Rules require the moving party to file and serve the amended pleading. D. Minn. LR 15.1(b). Because Nelson has not filed a Second Amended Complaint, the Amended Complaint remains the operative complaint in this matter. As this Court previously stated, "[n]otwithstanding his pro se status, [Nelson] must follow the Federal Rules of Civil Procedure and Local Rules of this Court...." (Dec. 5 Ord. Op. at 12.) See Meehan v. United Consumers Club Franchising Corp., 312 F.3d 909, 914 (8th Cir. 2002) ("All civil litigants are required to follow applicable procedural rules."); Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000) (per curiam) ("A pro se litigant is bound by the litigation rules as is a lawyer...."); Silberstein v. Internal Revenue Serv., 16 F.3d 585, 860 (8th Cir. 1994) ("local rules... are binding on the parties").
Nelson brings this action under 42 U.S.C. § 1983, alleging that Sheriff Stuart and Dr. Loes have violated his right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution. (Dec. 5, 2013 Order Op. at 2.) The Court sets forth the facts in the light most favorable to Nelson. See Tommassello v. Stine, No. 08-cv-1190 (PJS/RLR), 642 F.Supp.2d 910, 912 (D. Minn. 2009); id. at 917 ("In considering a motion for summary judgment, a court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the non-moving party.'" (quoting Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir. 2004))).
From November 14, 2010 to October 24, 2011, Nelson was incarcerated in the Anoka County Jail as a pretrial detainee pending resolution of criminal charges and a probation violation. (Am. Compl. at 4; Sheriff Stuart's Mem. in Supp. of Summ. J. at 1.) As part of the intake process, Nelson reported that he suffers from migraine headaches and has a bad hip. (Sheriff Stuart's Ex. D, Docket No. 82-1.) On November 15 and 16, Nelson's second and third days at Anoka County Jail, he sent two inmate request forms, also known as "kites, " concerning his hip pain and migraines. (Ex. L to Decl. of Bryon G. Ascheman, Docket No. 97-1.) On November 15, Nelson complained of "[e]xcruciating hip pain, hip way past need for replacement." ( Id. ) Nelson stated that he "[w]as on pain meds" and "[n]eed[ed] Im[i]trex or [he] get[s] chronic migraines." ( Id. ) A staff member responded the same day, stating Nelson's concerns were "[a]lready [a]ddressed." ( Id. ) On November 16, Nelson wrote: "I need meds. I have a migraine headache and have had it all night. It's inhumane not to give me my prescribed meds. It's also torture, you cannot imagine what I'm going through. Not be able to get my meds is what put me here!" ( Id. ) Nelson received a response the same day indicating that he would "be seen in medical." ( Id. )
Initially, Nelson was treated at the Anoka County Jail by another physician, R. Alper, M.D., who is not a party to this lawsuit. (Dr. Loes's Mem. in Supp. of Summ. J. at 3; Ex. A to Ascheman Decl.) Dr. Alper saw Nelson on November 16 to address his headache complaints. (Ex. M to Ascheman Decl.) Nelson reported that he "is supposed to be on Concerta, Imitrex, and Tramadol, " but has not been taking his medication for "a while" due to the lack of insurance. ( Id. ) Nelson also told Dr. Alper that acetaminophen and ibuprofen do "not work well for him." ( Id. ) Dr. Alper prescribed ibuprofen for the time being and directed staff to contact Nelson's pharmacy and get a complete list of Nelson's medications. ( Id. ) A follow-up evaluation appointment was to occur after the list was received. ( Id. ) Two days later, the Concerta and Tramadol prescriptions were confirmed and the medication provided to Nelson. ( Id. )
In late November 2010, Dr. Alper prescribed Imitrex for Nelson's migraines. (Ex. A to Ascheman Decl.) In December 2010, Nelson's records indicate that he was experiencing pain in his left hip. ( Id .; see also id. at Ex. C.)
Nelson was first seen by Dr. Loes on January 10, 2011, with complaints of left hip pain. ( Id. at Ex. C.) Dr. Loes saw Nelson again on January 20. ( Id. at Ex. O.) Nelson reported "multiple episodes of ongoing pain." ( Id. ) Dr. Loes noted that Nelson's Tramadol prescription expired the day before and Nelson was currently sleeping in the "top tier." ( Id. ) Dr. Loes noted the need to evaluate Nelson's pain medications and did not renew the Tramadol prescription at the time, but prescribed acetaminophen and ibuprofen on an "as needed" basis. ( Id. ) Dr. Loes also moved Nelson to the "lower tier." ( Id. ) At the end of January, staff reported to Dr. Loes that Nelson was still moving slowly and limping and Dr. Loes renewed Nelson's Tramadol prescription. ( Id .; see also id. at Ex. E.)
Dr. Loes renewed Nelson's Imitrex prescription on February 3. ( Id. at Ex. B.)
On February 11, Nelson was seen by Cyril F. Kruse, III, M.D.,  with Orthopaedic Partners, P.A., for complaints of left hip pain. (Nelson Ex. P, Docket No. 99-1.) Nelson reported that he experiences pain on a daily basis, which interferes with his activities of daily living. ( Id. ) Nelson also reported that he previously had his right hip replaced. ( Id. ) Upon examination, Dr. Kruse noted that Nelson had no tenderness in his pelvis, but "does have some pain with internal rotation of the left hip and limited motion." ( Id. ) An x-ray was taken, which showed "extreme collapse and advancing avascular necrosis of the left hip with osteoarthritis." ( Id. ) Dr. Kruse's notes indicate that he "discussed options" with Nelson and Nelson "want[ed] to proceed with total hip arthroplasty." ( Id. ) Dr. Kruse noted that he was "not sure [Nelson] will follow up based on his insurance" and stated "[w]e can always get him in for an intraarticular injection in the meantime." ( Id. ) Nelson received the injection on February 23. (Ex. 3 to Aff. of Diane Haugen, Docket No. 101-1.)
In late February, Nelson sent a kite, asking for a cane to take some of the weight off of his hip and ease the pain. (Nelson Ex. L.) On March 1, Nelson was told that canes were not provided "due to security reasons." ( Id. )
On March 3, Nelson was seen for complaints of left knee pain. (Ex. P to Ascheman Decl.) Dr. Loes's notes indicate that he gave Nelson exercises and recommended ice. ( Id. ) Nelson was also instructed to follow up if the pain did not improve. ( Id. ) Dr. Loes also noted the possibility of a steroid injection. ( Id. )
Dr. Loes renewed Nelson's Imitrex prescription on March 5. ( Id. at Ex. E.)
On March 9, Nelson stated in a kite that his "pain has gone (in my hip mostly this AM) to another level" and he would "be lucky" to make it to a court appearance the following day. ( Id. at Ex. Q.) Nelson asked that the "the doctor" be informed. ( Id. ) On March 11, an unidentified staff member responded that Nelson's concerns were "addressed." ( Id. ) Dr. Loes prescribed Vicodin for Nelson on March 18. ( Id. at Ex. E.)
A progress note from March 30 notes that Nelson was being seen for a "1st visit for case management of chronic hip, knee, and back pain." (Sheriff Stuart's Ex. Y.) Dr. Loes increased Nelson's Vicodin prescription. ( Id. ) Nelson was also given an extra blanket to use between and under his knees." ( Id. ) In addition, on March 31, Nelson was authorized to try using a cane. ( Id. ; Nelson Ex. M.)
On April 5, Dr. Loes again renewed Nelson's Imitrex prescription. (Ex. D to Ascheman Decl.)
On April 8, Nelson was seen for a follow-up appointment concerning his hip pain. (Sheriff Stuart's Ex. Y.) Notes from the appointment indicate that Nelson had been using his cane incorrectly. Nelson was also proscribed Celebrex to help with pain management. ( Id. )
On April 11, Nelson submitted a grievance, stating that
[t]he pain medicine strength is always 2 steps behind the severity of the pain and medical condition. Good' painmanagement is extremely necessary but does not take the place of the obvious cure or answer. It is absolutely negligent to not do the operation that months ago Dr. Kru[s]e said needed ASAP.
(Nelson Ex. E.) A staff member responded the same day, asking Nelson if he had "spoken to [his] attorney about asking the judge for a medical furlough" as "[w]e have tried on our side but cannot due to probation violation." ( Id. )
On April 17, Nelson submitted another grievance:
Once again, I've had to endure more unnecessary pain today, this morning, because I did not get my morning pain meds till after 9:20 am! That means from 8:00 PM last night till after 9:20 AM I had no pain medication for an extremely agonizing, terribly painful, untreated medical condition! That's over 13 hrs and 20 minutes.
(Nelson Ex. A.) There is no response to this grievance in the record. ( Id. )
The next day, Nelson submitted a similar grievance:
Meds once again did not get to unit till around 8:45 this morning. It's getting better than it has been for time. Since I last got pain meds at 8:00 last nite [sic] that's 12 hrs and 45 minutes with no pain meds instead of 13, 13 hr 4 min, 13 hrs 20 min, 14 hrs and 17 hrs it has been before!
(Nelson Ex. Q.) A staff member responded the following day, stating there had only been one nurse available to pass out medication. ( Id. )
The record also contains two progress notes from April 18. The first states that staff had talked with the public defender's office regarding Nelson's medical issues and treatment plan. (Sheriff Stuart's Ex. Y.) The second is from Dr. Loes, noting that Nelson is "in intractable pain unrelieved w[ith] conservative therapies. Harm in postponing surgery is... continued pain and limited function." (Ex. 3 to Haugen Aff.) Staff contacted Dr. Kruse's office on April 20 to schedule Nelson for hip replacement surgery. ( Id. ) The surgery was scheduled for May 24. ( Id. )
On April 25, Dr. Loes noted that Nelson had been taking Imitrex "regularly" for undocumented headaches, decreased Nelson's prescription, and indicated a "chart review" would occur the following week if Nelson did not schedule a medical appointment. (Ex. F to Ascheman Decl.) Nelson responded to the changed prescription by grievance on April 29:
The doctor here has changed my Im[i]trex migraine med from 3 or more a week to 2 a week! I'm sure it's a matter of cost and lack of compassion versus me being in total agonizing, debilitating pain! And even worse than those words describe it has to be that because I get 18 per month on the outside with absolutely no side effects. ( Id. at Ex. H.) The following day, a staff member responded that Nelson's grievance was "noted." ( Id. ) Nelson's Imitrex prescription was discontinued on May 2 and Dr. Loes instructed the nursing staff to document Nelson's headache history. (Ex. F to Ascheman Decl.)
On May 10, an officer conducted a "shakedown" of Nelson's cell. (Sheriff Stuart's Ex. U.) Among other things, the officer "found a small white pill. It appeared to be broken in half, and partially dissolved. It was wrapped in a piece of paper." ( Id. ) Nelson told the officer that he did not know anything about the pill. ( Id. ) The pill was subsequently identified as Vicodin, which Nelson had a prescription for at the time. ( Id. ) Nelson was cited with a rule violation for accumulating medication. ( Id. ) Nelson's Vicodin prescription was discontinued. ( See Decl. of John Loes, M.D. ¶ 27, Docket No. 96; Sheriff Stuart's Ex. Z.)
On May 12, Nelson submitted the following kite:
Doctor, I'm sorry to have to let you know that you do not know more than all the doctors, specialists, Gastroenterologists, Neurologists, and more that have been keeping an eye on me and my liver for the over 30 years that I now am sure I have been taking Im[i]trex! The sumatriptan that can damage the liver has Naproxin [sic] Sodium in it! [T]he Reason you don't want to give me Im[i]trex is the cost! Why don't we try "Relpac"[?]
(Nelson Ex. J.) The next day, a staff member responded that "[t]he doctor doesn't answer kites, " but stated a copy ...