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Redleski v. Proctor

United States District Court, N.D. West Virginia

April 23, 2018

DOUGLAS ANDREW REDLESKI. Plaintiff,
v.
DAVID PROCTOR, Practicing Physician, TRISTEN TENNY, RN, HSA, Defendants.

          Keeley, Judge

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         Douglas Redleski (“Plaintiff”), an inmate now incarcerated at Denmar Correctional Center (“DCC”) in Hillsboro, West Virginia, initiated this pro se case on May 27, 2015, by filing a civil rights complaint pursuant to 42 U.S.C. §1983 against four defendants: Warden Marvin Plumley, Nurse Debbie Hissom, Dr. David Proctor, and Health Services Administrator Tristen Tenny, all of whom were employed at Huttonsville Correctional Center (“HCC”). ECF No. 1. On June 1, 2015, Magistrate Judge John Kaull conducted a preliminary review of the complaint and determined that summary dismissal was not warranted, and Defendants should be made to file an answer. The Clerk of Court issued a summons for each of the defendants. ECF No. 17.

         On June 25, 2015, Hissom and Plumley filed a Motion to Dismiss. ECF No. 25. On June 26, 2015, Defendants Hissom and Plumley filed a Supplemental Motion to Dismiss. ECF No. 27. On July 7, 2015, Tenny and Proctor filed a Motion to Dismiss. ECF No. 30.

         On February 9, 2016, Magistrate Judge Michael John Aloi issued a Report and Recommendation in which he recommended the Motion to Dismiss filed by Debbie Hissom and Marvin Plumley be granted, and the Motion to Dismiss by Tristan Tenny and David Proctor be construed as a Motion to Quash and be granted. ECF No. 52. On March 4, 2016, the Court adopted the Report and Recommendation and granted the Motion to Dismiss by Hissom and Plumley's Motion to Dismiss and converted the Motion by Proctor and Tenny to a Motion to Quash service of process. ECF No. 54. Accordingly, Defendants Plumley and Hissom were terminated as defendants.

         On March 16, 2016. Defendants Proctor and Tenny waived service of process. ECF Nos. 58, 59. On May 9, 2016, they filed a Motion to Dismiss with exhibits. ECF No. 61. A Roseboro Notice was issued on May 10, 2016. On May 23, 2016, Plaintiff filed a Response in opposition to the pending Motion to Dismiss. ECF No. 66.

         On February 14, 2017, Magistrate Judge Aloi issued a Report and Recommendation that Defendants' Motion to Dismiss be denied. No Objections were filed, and on March 6, 2017, the Court entered an adopting the Report and Recommendation. ECF No. 75.

         On March 13, 2017, Defendants filed an answer to the complaint. ECF No. 77. On August 10, 2017, Magistrate Judge Aloi conducted a motion hearing, at which hearing, Plaintiff was placed under oath and provided testimony. On April 17, 2017, a scheduling order was entered. ECF No. 79. On September 15, 2017, this matter was reassigned to the undersigned. On January 29, 2018, Defendants filed a Motion for Summary Judgment with exhibits and supporting memorandum. ECF Nos. 132, 133. On January 31, 2017, a Roseboro Notice was issued ECF No. 136. On February 12, 2018, the Plaintiff filed a response in opposition to the motion for summary judgment [ECF No. 138], and on February 26, 2018, Defendants filed a reply. ECF No. 140.

         II. Contentions of the Parties

         A. The Complaint

         In his complaint, Plaintiff alleges that he suffers from “uncontrolled diabetic mellitus, which has caused serious medical grief such as diabetic neuropathy with serious visual complications, cataracts, adhesive capsulitis, memory problems, balance problems, gum disease, and autonomic neuropathy.” ECF No. 1 Plaintiff further alleges that Proctor, the physician at HCC, has written numerous orders without first speaking to him to inquire into facts necessary to make a professional judgment into his diabetic condition. In addition, Plaintiff alleges that he was not made aware of any order for a diabetic diet until April 2, 2015, and although a diabetic diet order may have issued on March 28, 2014, he was not made aware of it.

         Plaintiff further alleges that Tenney, the Health Service Administrator, determined that he has “uncontrolled diabetes.” Despite this determination, Plaintiff maintains that the medical records attached to his complaint clearly show that between March 23, 2010, [1] and June 14, 2014, defendant Proctor, did “absolutely nothing to end the ‘uncontrolled diabetes.'” ECF 1 at 9. Plaintiff elaborates on this accusation by noting that Proctor not only has written orders without first speaking with him, he failed to have his blood glucose levels checked after meals or before bedtime. Instead, Plaintiff maintains that the medical unit only monitored his blood glucose levels twice a day at 6:30 a.m. and 4:30 p.m, both of which were before meals. Additionally, Plaintiff alleges that without seeing him, Proctor raised his Lantus insulin dosage on three occasions, and again without seeing him, discontinued the Lantus insulin, and “doggedly persisted in a course of treatment known to be ineffective (NPH insulin) and without any monitoring schedule.” ECF No. 1 at 10-11.[2]Plaintiff also alleges that on March 16, 2015, his A1C was checked and found to be 10, which is high. Despite this reading, Plaintiff maintains that Proctor decreased his insulin from 35 to 30 units NPH., without seeing him and without ordering a monitoring schedule. Plaintiff also alleges that on March 17, 2015, after five (5) years of high A1C tests, Proctor ordered a monitoring schedule of four times a day for thirty days. However, when progress started to show, Proctor discontinued the monitoring schedule on April 7, 2015. Additionally, Plaintiff alleges that between January 8, 2015, and April 14, 2015, Proctor, without ever seeing him, changed the treatment program 21 times. These changes, according to Plaintiff, included type of insulin and dosage. Plaintiff further alleges that Tenney and Proctor refused to send him to a specialist or provide him with an insulin pump. Finally, Plaintiff alleges that despite knowing that his condition has been out of control for years, Proctor has failed to order and/or provide education and proper treatment of his diabetes.

         With respect to Tenney, the Health Services Administrator, Plaintiff alleges that he misrepresented facts in the grievance procedure in order to mislead and obstruct relief from being granted. Plaintiff specifically alleges that Tenney instructed him to eat appropriate items but never offered, ordered or otherwise provided him with any self management education. In addition Plaintiff alleges that Tenny falsely stated this his A1C went up instead of down while he was on Lantus. Plaintiff also alleges that Tenney's statement that he has been on a 2800 caloric diabetic diet for years is false, and he refused to provide information on NPH insulin. Plaintiff also alleges that both Tenney and Proctor refuse to allow him to see a registered dietician.

         For relief, Plaintiff requests compensatory damages, In addition, he seeks injunctive relief, including proper diabetic care for the duration of his incarceration, substantial changes in the way diabetics are monitored and treated that will adhere to the standards set by the American Diabetes Association and an order the he be housed in a single cell for the remainder of his incarceration so that he may monitor and take care of his diabetic condition.

         B. Motion for Summary Judgment

         In their Motion for Summary Judgment, Defendants make four broad claim. First, with respect to Tristan Tenney, they argue that Plaintiff has asserted a claim of deliberate indifference by seeking to hold him responsible for medical care for which he has no authority or responsibility. According to Dr. Proctor, Tenney was the Health Services Administrator and a Registered Nurse at HCC until August 2015, and had day to day supervision of the Medical Unit which involved conducting meetings, ordering supplies and hiring and firing of non-physician staff. Defendant Proctor, in his affidavit, states that Tenney did not have supervisory responsibility over him or any other physician and could not direct physicians to prescribe or order any particular treatment or medication for the Plaintiff. Moreover, because Dr. Proctor was not his subordinate, counsel argues that Tenney cannot be held responsible under the theory of respondeat superior. Finally, to the extent Plaintiff is alleging that Tenney was deliberately indifferent to his needs by responding to his administrative grievances, counsel alleges that this is without merit because that is not the type of personal involvement required to state a claim. Accordingly, counsel argues that because there is no genuine issue as to any material fact with respect to whether Tristan Tenney had the necessary personal involvement for personal liability pursuant to 42 U.S.C. § 1983, the complaint against him should be dismissed.

         Second, Defendants argue that no claim of deliberate indifference can be established against Dr. Proctor, because Plaintiff has not and cannot demonstrate deliberate indifference of this part. Counsel specifically argues that Plaintiff's diabetic condition has been appropriately monitored and treated, Plaintiff has more than adequate knowledge of his condition and all treatments which have been given to him, his condition was never ignored, and the appropriate treatment by Dr. Proctor has resulted in a good outcome for a patient with a severe history of diabetes. In addition, they argue that the affidavit of Dr. Proctor and the medical records attached as exhibits clearly show that Plaintiff's diabetic condition has been meticulously followed while he has been an inmate at Huttonville and add that the medical staff has gone above and beyond the standard customary treatment for diabetes in responding to Plaintiff's needs. Counsel also maintains that it is clear that Plaintiff simply will not accept the recommendations and treatment provided by Dr. Proctor and the medical staff at Huttonsville.

         Third, Defendants argue that the applicable statute of limitations for Plaintiff's claim of deliberate indifference is two years. Because Plaintiff filed his complaint on May 27, 2015, Defendants argue that his claims ...


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