United States District Court, D. Minnesota
James N. Brown, Jr., Plaintiff,
Associate Warden G. Cooper; Ken Hyle, Asst. Director; Sara Revell, Regional Director; Kathleen Kenney, Gen. Counsel; L. LaRiva, Warden; L. Janssen, R.N.; C. Orum, Unit Manager; R. Woltman, Unit Counselor; FNU Sanson; A. Cossette, Unit Manager; D. Holbus, Lieutenant; C. Stromberg; FNU Hare; Peter Arroyo; Charles Slater, MD; Sheila Hadaway, MD; Misbah Baqir, MBBS; Mayo Clinic; M. Porter, R.N., Supervisor; T. Miller, Captain; and the United States of America, Defendants.
Brown, pro se Plaintiff.
Tweeten, Esq., and Erin M. Secord, Esq., Assistant United
States Attorneys, counsel for Defendants.
Vanessa J. Szalapski, Esq. and William R. Stoeri, Esq.,
Dorsey & Whitney LLP, counsel for Defendant Mayo Clinic.
REPORT AND RECOMMENDATION
R. THORSON UNITED STATES MAGISTRATE JUDGE
se Plaintiff James Brown brings claims related to his
medical treatment at the Federal Medical Center in Rochester,
Minnesota. (Doc. No. 21, Am. Compl.) Plaintiff alleges that
the Defendants in this action violated his federal and
constitutional rights in a variety of ways, including by
giving him insufficient supplemental oxygen, confiscating his
motorized wheelchair and forcing him to use a manual
wheelchair, and refusing his request for a lung
transplant. Plaintiff brings claims against two groups
of Defendants: the Federal Defendants and the Mayo
Defendants. (See id.) Both groups of
Defendants move to dismiss, or in the alternative, for
summary judgment. (Doc. Nos. 63, 82.) For the reasons stated
below, this Court recommends that the motions be treated as
summary-judgment motions and be granted.
Parties to this Litigation
is serving a 120-month term of imprisonment for Conspiracy to
Distribute Heroin. (Doc. No. 116, Declaration of Jake Bush
(“Bush Decl.”) ¶ 3, Ex. A.) He arrived at
FMC Rochester on April 19, 2016, as a transfer from the
Federal Correctional Institution in Pekin, Illinois. (Doc.
No. 86, Declaration of Sheila Hadaway (“Hadaway
Decl.”) ¶ 4, Ex. A.)
Federal Defendants are current or former employees of the
Federal Bureau of Prisons, all of whom were acting within the
scope of their employment at the time of the conduct alleged
in the Amended Complaint. (Doc. No. 26, Declaration of Ana
Voss.) The Mayo Defendants are the Mayo Clinic and Dr. Baqir,
who is employed at the Mayo Clinic.
Allegations Against the Federal Defendants
is a thirty-five-year-old African-American male who has been
diagnosed with Acute Fibrinous Organizing Pneumonia
(“AFOP”) secondary to Diffuse Alveolar Damage
Disease (“DAD”), as well as Avascular Necrosis
(“AVN”). (Am. Compl. 4.) He claims that he is
confined to his bed or wheelchair (motorized scooter) for
more than fifty percent of his waking hours and requires
assistance with most of his daily living activities.
alleges that upon his arrival at the 9/3 Housing Unit at
FMC-Rochester, Defendant Stromberg forced Plaintiff to be
strip searched without any medical assistance. (Id.
at 5.) Plaintiff also claims that Defendants Stromberg and
Porter placed him in a Special Housing Unit
(“SHU”) cell without supplemental oxygen, which
is required for his medical needs. (Id.) When
Plaintiff asked for an administrative remedy form to file a
grievance for this conduct, Defendant Hare allegedly ordered
Defendant Stromberg to write an incident report against
Plaintiff for disobeying a direct order. (Id.) Also
according to Plaintiff, Defendant Janssen issued a
“false and misleading” incident report after
being told by Defendant Woltman that Plaintiff had submitted
an administrative remedy against Defendant Janssen for staff
misconduct. (Id. at 4.)
further alleges that he was moved from the medical SHU to the
general population SHU, even though Defendants Dr. Hadaway
and Dr. Slater knew that Plaintiff's medical needs could
not be met in the general population. (Id. at 6.)
Plaintiff claims that he lost consciousness and suffered
severe chest pain and shortness of breath due to the lack of
oxygen. (Id. at 6-7.) Plaintiff claims to have been
in the general population SHU for thirty days. (Id.
also alleges that his motorized cart was seized, and when he
was released from the general population SHU, he was only
given a manual wheelchair, which was difficult to use because
of the pain in his shoulders due to AVN. (Id. at
7-8.) As a result, Plaintiff claims that he was forced to get
around “the best way he could, and in sub-zero
temperatures.” (Id. at 7.) Plaintiff also
alleges that other property was seized, leaving him with
nothing to keep himself warm. (Id.)
addition, Defendant Dr. Slater allegedly ignored the Mayo
Clinic's recommendation in August 2017 for an MRI
regarding Plaintiff's AVN, instead ordering an x-ray.
(Id.) Also, under Defendant Dr. Hadaway's
supervision, Defendant Slater allegedly denied Plaintiff pain
medication because he was a drug seeker. (Id. at 8.)
Defendants Dr. Hadaway and Dr. Slater also allegedly blocked
Plaintiff's access to a lung transplant. (Id.)
Plaintiff alleges that Defendants LaRiva, Hyle, and Kenney
wrongfully denied his request for a compassionate release.
(Id. at 9.) He claims that the BOP grants
compassionate releases to white and Hispanic inmates at a
greater rate than African-American prisoners. (Id.)
And since the filing of this lawsuit, Plaintiff alleges that
he has been “continually harassed, targeted and
threatened with being transferred and more time in the
SHU” if he doesn't stop filing grievances.
(Id. at 9-10.) Plaintiff claims that Defendant Miller
confronted him in the dining hall and asked “What is
this that you are suing me for 7 million dollars? Who do you
think you are?” (Id. at 9.)
Allegations Against the Mayo Defendants
alleges that he received treatment at the Mayo Clinic from
Dr. Baqir, that Dr. Baqir recommended in August 2017 that
Plaintiff should have an MRI and should see an orthopedist,
and that Dr. Baqir's recommendation was ignored.
(Id. at 7-8.) Plaintiff also alleges that the Mayo
Defendants, along with Defendants Dr. Slater, Dr. Hadaway,
and the BOP “have consistently blocked” him from
“receiving a lung transplant, without such the
plaintiff will soon die.” (Id. at 8.)
Plaintiff asserts that because he is incarcerated, he has
been “constantly told that he would not get a
transplant while in BOP custody.” (Id. at
Plaintiff's Medical History at FMC-Rochester
Plaintiff's Medical Conditions
Plaintiff arrived at FMC Rochester in April 2016, he had
ongoing problems with coughing, shortness of breath,
tachycardia, hypertension, and weight loss, believed to be
caused by interstitial lung disease of an unknown origin.
(Hadaway Decl. ¶ 5, Ex. B.) He also suffered from
hyperthyroidism, diabetes, gallstones, rashes, and a hernia.
(Id.) Plaintiff experienced shortness of breath with
minimal exertion and used supplemental oxygen. (Id.)
After his initial examination of Plaintiff, Defendant Dr.
Slater ordered numerous labs, a chest x-ray, CT Scan, a
Holter Monitor, and consultations with Pulmonology,
Rheumatology, and Endocrinology at Mayo Clinic.
(Id.) Over the next year, Plaintiff underwent
extensive evaluations at Mayo Clinic and was ultimately
diagnosed with acute fibrinous organizing pneumonia of
uncertain etiology. (Id. ¶ 6, Ex. C.) His
condition was eventually stabilized with medications,
including CellCept, an immunosuppressant, and prednisone.
who need supplemental oxygen can receive it via wall oxygen,
an oxygen concentrator, and a portable oxygen concentrator.
(Hadaway Decl. ¶ 7.) At FMC Rochester, the oxygen flow
can be set at a rate of up to fifteen liters per minute for a
wall oxygen unit, six liters per minute on an oxygen
concentrator, and two liters per minute on a portable oxygen
concentrator. (Id.) Two housing units--9/2 and 9/3
inpatient medical units--have wall oxygen concentrators.
(Id.) The goal of supplemental oxygen is to keep the
patient's oxygen saturation levels above 90%.
Plaintiff's acute fibrinous organizing pneumonia
stabilized with treatment, Mayo Clinic encouraged FMC
Rochester to evaluate his need for supplemental oxygen to get
him on lower rates yet still maintain appropriate oxygen
saturation levels. (Hadaway Decl. ¶ 8, Ex. D.) Defendant
Dr. Slater noted on March 10, 2017, that Plaintiff's
dependence on oxygen might be psychological, and therefore,
he prescribed Ativan as needed to assist with any anxiety
Plaintiff would experience during the downward titration.
(Hadaway Decl. ¶ 8, Ex. C at 4.) From August 2017 to
December 2017, Plaintiff's oxygen saturations remained at
or above the 90% target saturation rate. (Hadaway Decl.
¶ 9, Ex. E.)
October 19, 2017, Plaintiff submitted an electronic request
to staff asking Defendant Dr. Slater why he was removed from
wall oxygen. (Hadaway Decl. ¶ 10, Ex. F.) Defendant Dr.
Slater responded to him, indicating that his oxygen
concentrator supplied him with a sufficient oxygen flow of at
least two liters per minute to maintain oxygen saturations of
approximately 96%-100% and therefore, he did not need the
additional oxygen flow provided by the wall oxygen units.
(Id.) By letter dated October 31, 2017, Mayo Clinic
agreed with Dr. Slater that Plaintiff did not need oxygen at
rest, he primarily need it upon exertion. (Hadaway Decl.
¶ 11, Ex. G.)
Plaintiff was placed into the SHU on December 4, 2017, he was
initially provided an oxygen concentrator, which was kept
outside his locked cell door with the oxygen tubes running
under the door. (Hadaway Decl. ¶ 12.) His oxygen
saturations remained above 90% during this time.
(Id. ¶ 12, Ex. E at 3-4.) Further, even though
staff may not have taken oxygen saturation levels, they
repeatedly observed Plaintiff wearing oxygen nasal cannula
while he was in the SHU. (Id. ¶ 12, Ex. H.)
December 18, 2017, another doctor evaluated Plaintiff as part
of a chronic care clinic. (Hadaway Decl. ¶ 13.)
Plaintiff reported that he felt short of breath without his
oxygen, but after she removed his supplemental oxygen for
several minutes, his oxygen saturation remained at 100% on
room air. (Id., Ex. I.) Because the doctor believed
that Plaintiff's concerns about shortness of breath were
related to anxiety, she consulted with Mayo Clinic
Pulmonology regarding the discontinuation of oxygen at rest,
and they both agreed to discontinue oxygen at rest.
(Id.) The doctor ordered 2L of oxygen with exertion
and pulmonary function testing to assess the lowest
concentration of nasal cannula oxygen by Plaintiff for
walking. (Id.) The oxygen concentrator that had been
located outside Plaintiff's cell door was removed, and
Plaintiff would be given a portable oxygen concentrator
available to him for recreation and showers. (Hadaway Decl.
¶ 14, Ex. J.)
in the General Population SHU
FMC Rochester houses medically ill inmates who may need
twenty-four hour nursing care, the institution has a limited
number of SHU beds for medical inmates on the 9/3 inpatient
unit in addition to the general population SHU in Building 2.
(Hadaway Decl. ¶ 15.) Inmates in the general population
SHU are seen by nurses during rounds, and they can bring any
medical complaints to the attention of the correctional
officers between rounds. (Id.)
December 4, 2017, Correctional Services staff determined
Plaintiff needed to be placed in SHU. (Hadaway Decl. ¶
16.) At the time, Plaintiff was housed on the 9/3 unit.
(Id.) However, Defendant Dr. Slater approved
Plaintiff's placement in the general population SHU in
Building 2 rather than the 9/3 SHU cells. (Id.) This
is because, as previously mentioned, Plaintiff's oxygen
needs could be met through an oxygen concentrator outside his
cell door or via a portable concentrator upon exertion.
(Id.) He did not need access to the higher-flow wall
oxygen units on 9/2 or 9/3. (Id.) Also, Plaintiff
was independent with his activities of daily living, such as
eating, bathing and transferring from his wheelchair to his
bed. (Id., Ex. H at 6.) His medical needs could be
met in the general population SHU, which kept the limited
number of medical SHU cells on the 9/3 unit open for more
medically ill inmates who, unlike Plaintiff, needed
assistance from the nurses with their activities of daily
living. (Hadaway Decl. ¶ 16, Ex. K.)
was issued an electric wheelchair on May 2, 2017, which he
used until he was placed in the SHU on December 4, 2017.
(Hadaway Decl. ¶ 20, Ex. O.) When an inmate who has been
issued an electric wheelchair is placed in the SHU, the
electric wheelchair is discontinued as the inmate does not
have a need for it because the inmate is primarily confined
to their cell. (Id. ¶ 21.) Plaintiff was issued
a manual wheelchair when he was released from the SHU on
January 3, 2018. (Id. ¶ 22, Ex. P.) Defendant
Occupational Therapist Arroyo did not issue an electric
wheelchair because Plaintiff needed to be evaluated by his
Physical Therapist to determine if there was still a clinical
need given his improved pulmonary function. (Id.)
met with his Physical Therapist on January 6, 2018. (Hadaway
Decl. ¶ 23, Ex. Q.) She noted that Plaintiff had
initially used the electric wheelchair for mobility due to
significant oxygen desaturation, but his lung function had
improved. (Id.) Upon evaluation, Plaintiff was able
to ambulate 200 meters in six minutes, and therefore, she
concluded that it was unlikely he would be able to ambulate
across the compound in the time allotted for inmate movement.
(Id.) The Physical Therapist recommended Plaintiff
use a walker in his housing unit and an electric wheelchair
on the compound. (Id.) Plaintiff received an
electric wheelchair that day. (Id.) Therefore,
Plaintiff did not have access to an electric wheelchair while
he was in SHU, from December 4, 2017, through January 3,
2018, and from January 3, 2018 until January 6, 2018.
(Hadaway Decl. ¶¶ 20- 23.)
AVN Diagnosis and Treatment
August 16, 2017, a Mayo Clinic Pulmonologist recommended to
FMC Rochester that the facility pursue an orthopedic
consultation for Plaintiff's bilateral shoulder pain,
possibly related to osteonecrosis of the shoulder joint.
(Hadaway Decl. ¶ 24, Ex. R.) The pulmonologist did not
specifically mention an MRI. (Id.) Defendant Dr.
Slater reviewed the pulmonologist's August 16 note on
August 21, 2017. (Hadaway Decl. ¶ 25, Ex. S.) At that
time, he noted that Plaintiff had a CT scan on March 13,
2017, that raised concern for avascular necrosis.
(Id.) Treatment started, and Plaintiff was waiting
on physical therapy. (Id.) Dr. Slater indicated that
he would plan to get x-rays of both shoulders and consider an
MRI or bone scan depending on the findings. (Id.)
had the bilateral shoulder x-rays on August 22, 2017, and
they were negative. (Hadaway Decl. ¶ 26, Ex. T.) Dr.
Slater decided to pursue physical therapy as Plaintiff was on
medical therapy for osteonecrosis and started duloxetine for
treatment of his chronic pain. (Id.) On August 30,
2017, a physician's assistant noted that the CT showed
bilateral subchondral sclerosis but a recent x-ray did not.
(Hadaway Decl. ¶ 27, Ex. U.) He reviewed UpToDate, an
online medical reference source, for treatment
recommendations, noting that a non-operative treatment was
recommended for three months, which had been started.
(Id.) Dr. Slater thought it would be prudent to
pursue more aggressive treatment, so he ordered an MRI of
both shoulders and submitted a request for an orthopedic
surgery consultation. (Id.) Plaintiff had the MRIs
on December 12, 2017, which showed he had uncomplicated
avascular necrosis of the humeral head. (Hadaway Decl. ¶
28, Ex. V.)
Plaintiff's CT scan in March 2017 that showed some
bilateral subchondral sclerosis, medical providers have tried
various non-opioid and opioid medications to control
Plaintiff's pain. (Hadaway Decl. ¶ 30, Exs. W, X.)
Plaintiff was prescribed thirteen different opioid and
non-opioid medications to treat his AVN and manage the pain
associated with it. (Id.) Over time, patients build
a tolerance to pain medication, which leads to increased
doses, and the possibility of the medication no longer
working for them. (Hadaway Decl. ¶ 29.) Therefore, FMC
Rochester first attempts to treat an inmate's chronic
pain with non-pharmacological modalities such as physical
therapy, cognitive behavioral therapy, and transcutaneous
electrical nerve stimulation. (Id.) If these do not
work, non-opioid medications such as acetaminophen, topical
analgesics, nortriptyline, duloxetine, and gabapentin are
given. (Id.) Only if these non-opioid medications
are proven to be ineffective at managing the inmate's
pain will medical staff explore opioid pain medications such
as oxycodone. (Id.)
Plaintiff's Request for a Lung Transplant
10, 2017, a physician's assistant referred Plaintiff for
a general surgical consultation to be “worked up”
for a lung transplant, noting one had been recommended in
December 2016. (Hadaway Decl. ¶ 32, Ex. Z.) The
physician's assistant noted Plaintiff was going through
the reduction in sentence process and that the “work
up” was intended to have Plaintiff added to the
transplant list. (Id.)
on August 21, 2017, Dr. Slater noted that because
Plaintiff's respiratory status was stable, the lung
transplant “work up” would be placed on hold.
(Hadaway Decl. ¶ 33, Ex. S at 1.) He also noted that
Mayo Clinic Pulmonology did not seem to think it was an
issue. (Id.) On September 12, 2017, Dr. Slater again
noted that Plaintiff was “quite stable” and a
lung transplant no longer seemed clinically indicated.
(Hadaway Decl. ¶ 34, Ex. AA.) He further noted that the
referral for a transplant would need to be made by the
Pulmonologist, which she did not feel was necessary at that
letter dated October 31, 2017, the Mayo Clinic Pulmonologist,
Defendant Dr. Baqir, indicated that she agreed Plaintiff
“will benefit from lung transplantation in the long
run.” (Hadaway Decl. ¶ 35, Ex. G.) Dr. Slater
later clarified that Dr. Baqir intended to say that the
letter was for Plaintiff to get the transplant after release
from prison, but Dr. Baqir submitted the recommendation for a
transplant consultation in any event. (Hadaway Decl. ¶