United States District Court, N.D. West Virginia
DOUGLAS ANDREW REDLESKI. Plaintiff,
DAVID PROCTOR, Practicing Physician, TRISTEN TENNY, RN, HSA, Defendants.
REPORT AND RECOMMENDATION
E. SEIBERT, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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
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.
Contentions of the Parties
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.
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,  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.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.
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
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.
Motion for Summary Judgment
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.
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.
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 ...