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Brown v. Cooper

United States District Court, D. Minnesota

December 11, 2018

James N. Brown, Jr., Plaintiff,
v.
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.

          James Brown, pro se Plaintiff.

          Andrew 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

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE

         Pro 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.[1] Plaintiff brings claims against two groups of Defendants: the Federal Defendants[2] and the Mayo Defendants.[3] (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.[4]

         I. Background

         A. Parties to this Litigation

         Plaintiff 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.)

         The 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.

         B. Allegations Against the Federal Defendants

         Plaintiff 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. (Id.)

         Plaintiff 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.)

         Plaintiff 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. at 7.)

         Plaintiff 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.)

         In 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.)

         Finally, 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.)[5] 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.)

         C. Allegations Against the Mayo Defendants

         Plaintiff 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 8-9.)

         D. Plaintiff's Medical History at FMC-Rochester

         1. Plaintiff's Medical Conditions

         When 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. (Id.)

         2. Supplemental Oxygen

         Patients 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%. (Id.)

         As 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.)

         On 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.)

         When 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.)

         On 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.)

         3.Placement in the General Population SHU

         Because 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.)

         On 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.)

         4. Electric Wheelchair

         Plaintiff 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.)

         Plaintiff 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.)

         5. AVN Diagnosis and Treatment

         On 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.)

         Plaintiff 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.)

         Since 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.)

         6. Plaintiff's Request for a Lung Transplant

         On May 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.)

         However, 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 time. (Id.)

         By 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. ¶ 35, ...


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