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Cole v. Delaplain

November 24, 2010

GEORGE ALBERT COLE PLAINTIFF,
v.
PAUL DELAPLAIN AND LT. J. MALKMUS, DEFENDANTS.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM ORDER

Pending before the Court in the above-entitled matter are Plaintiff George Albert Cole's ("Cole") Motion to Produce Relevant Document (Docket No. 39) and Defendant Lt. J. Malkmus' ("Lt. Malkmus") Motion for Summary Judgment (Docket No. 43). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

PROCEDURAL BACKGROUND

Plaintiff was incarcerated at the Gem County Jail between April 3, 2008 and August 20, 2009. It was unclear from the Complaint whether Cole was a pretrial detainee or a convicted prisoner at the time he was held at Gem County Jail. In the Initial Review Order, Docket No. 6, the Court directed Plaintiff to clarify his status in his amended complaint and Plaintiff indicated he was "convicted" when he was held at the Gem County Jail. Docket No. 31.

Plaintiff alleges his constitutional rights were violated when he was denied adequate medical care because Defendants Lt. Malkmus and Paul Delaplain did not provide follow-up medical care as instructed by medical personnel at Walter Knox Memorial Hospital. Plaintiff also alleges that Defendant Malkmus denied Plaintiff access to qualified medical personnel. Plaintiff desired to be seen for follow up care by a particular doctor instead of jail medical personnel. Plaintiff alleges that Defendant Delaplain has not dealt with the Plaintiff's medical problems appropriately and instead has "prescribe[d] different pain medications until he finds on [sic] that will work . . . ." Complaint, Docket No. 3 at 17.

Plaintiff brought his claims under the First, Sixth, Eighth, and Fourteenth Amendments and seeks compensatory and punitive damages. In the Initial Review Order, the Court determined that Plaintiff had not stated a claim under the First or Sixth Amendments and dismissed those claims. The Court allowed Cole to amend his complaint*fn1 and proceed on his claim of inadequate medical care which would be in violation of the Eighth Amendment since Plaintiff has now clarified that he was convicted (instead of a pre-trial detainee) at the time of the alleged violation. Accordingly, the Court now dismisses any Fourteenth Amendment claim the Plaintiff had previously presented since the Fourteenth Amendment would only apply to a claim of inadequate medical care for a pre-trial detainee.

Plaintiff named Lt. Malkmus, a Gem County Sheriff's Department Lieutenant who was in charge of the jail, as a Defendant. Cole also named as a Defendant Paul Delaplain ("Delaplain"), a physician assistant who contracted to provide medical care to inmates at the Gem County Jail between April 3, 2008 until February 28, 2009. The Court served the Plaintiff's Complaint on an attorney who represented Mr. Delaplain in a previous Federal court prisoner civil rights claim. Such attorney indicated to the Court he was not representing Mr. Delaplain in this matter and could not accept service on his behalf. Therefore, the Court ordered Cole to provide the Court with a viable physical address so that Mr. Delaplain could be served with the Complaint by the United States Marshal. Cole was unable to provide any address other than the address to the former counsel who had previously been served, so the Court dismissed without prejudice Plaintiff's claims against Mr. Delaplain. Docket No. 28.

The third Defendant named in the original Complaint was Gem County. The Court has previously ruled Plaintiff could not proceed on any claims against Gem County as Cole had failed to allege facts sufficient to state a policy or custom claim against Gem County. Docket No. 11. Therefore, the only claim that remains is a claim for a violation of Plaintiff's Eighth Amendment rights related to his claim that Defendant Lt. Malkmus was deliberately indifferent to Cole's serious medical needs. All other claims and Defendants have been dismissed.

FACTUAL BACKGROUND

The Gem County Jail ("Jail") contracts with certain medical providers to provide medical care to the inmates. From the date Cole arrived at the Jail on April 3, 2008 until February 28, 2009, the Jail contracted with Delaplain, PA, to provide medical services to inmates. From March 6, 2009 until August 20, 2009 when Cole left the custody of the Jail, the Jail contracted with Badger Medical, PA to provided medical services.

Medical providers are available to provide treatment at least once a week at the Jail and prescriptions are provided daily by Jail personnel. If an inmate has a severe medical issue when medical personnel are not available, they are transported to the local hospital for treatment or to a local doctor.

On April 6, 2008, Cole was given a baseline assessment that included a review of medical history, prescriptions and a physical examination by Delaplain. The physical examination was normal. Cole was not taking medications at that time and he refused to provide a medical records release form to Delaplain. Delaplain assessed Cole with borderline personality disorder, antisocial personality disorder, alcoholism, and narcotic abuse based on the history provided by Cole.

On April 20, 2008, Delaplain saw Cole at the Jail and Cole was requesting a prescription for Oxycodone, a narcotic pain medication*fn2. Delaplain told Cole there were no physical findings to support a prescription for Oxycodone. Defendants acknowledge that Cole did take Oxycontin some time prior to his incarceration at the Gem County Jail, but it is undisputed by Cole that he was not taking Oxycontin at the time he entered the Jail.

On June 19, 2008, Cole was transported to Dr. Shannon Schantz's ("Dr. Schantz") office for medical treatment for his backpain. Dr. Schantz had previously treated Plaintiff prior to his incarceration. Cole testified at his deposition that he did not request a prescription for Oxycontin as his back was not hurting severe enough to where Cole thought he needed Oxycontin.

On July 23, 2008, Delaplain saw Cole at the Jail when Cole was complaining of severe back pain and requested a prescription for Oxycodone. Delaplain prescribed the maximum allowable dose of Vicodin for pain for five days and an anxiety medication for seven days. Delaplain believed Cole was demonstrating drug-seeking behavior and did not want to put him on narcotics if another pain medication would provide relief.

On August 26, 2008, Cole was transported to see Dr. Vetter who was covering for Dr. Schantz. Cole requested Oxycontin for his pain and indicated that Dr. Schantz had prescribed Oxycontin in the past for him. Dr. Vetter indicated Oxycontin was not appropriate for initial care of back pain and told Cole he would not prescribe Oxycontin. Dr. Vetter's medical records indicate Cole became "very upset" after he said he would prescribe Mobic and Ultran. Cole refused these prescriptions and Dr. Vetter indicated Cole should follow up as needed.

On August 31, 2008, Cole was transported to Walter Knox Memorial Hospital ("Hospital") complaining of chest pain. Cole was seen by Cherish Estep ("Estep"), PA, who diagnosed gatroesophageal reflux disease ("GERD"). Estep concluded Cole's was refusing his current dosage for a generic form of Prilosec as well as other medications. Cole said he was reluctant to agree to any medical treatment other than Oxycodone. Estep advised to re-start his generic form of Prilosec and to follow up with his primary care provider within a week on the discharge papers. Estep explained in her affidavit that when she advised "follow up" with primary care physician that could be satisfied by follow up with Jail medical personnel and it did not have to be Cole's former doctor, Dr. Schantz:

When I instruct a patient, as I did Cole on August 31, 2008, to follow up with a primary care provider, I am not directing that the patient see a particular medical professional. Instead, I am instructing the patient to follow up with a medical professional. It would have been consistent with my instructions to Cole for him to follow up with medical staff at the Gem County Jail.

Affidavit of Cherish L. Estep, PA-C, MPAS, In Support of Defendant's Motion for Summary Judgment, Docket No. 43-13.

It is unclear from the record if Cole completed a medical request form for a follow up with Dr. Schantz or jail personnel.

On October 5, 2008, Delaplain, the Jail PA, attempted to see Cole at the Jail because Cole had refused his medications since August 23, 2008 and had refused to eat for seven days. Cole refused to be seen by Delaplain.

On November 10, 2008, Cole was transported to see Dr. Schantz. Dr. Schantz prescribed Ultram for Cole's back pain. On November 19, 2008, Cole requested to be seen again by Dr. Schantz. On November 23, 2008, Delaplain recommended that Cole be seen again by Dr. Schantz. On December 8, 2008, Cole was transported to see Dr. Schantz. Dr. Schantz prescribed Oxycontin for Cole's back pain. Cole received Oxycontin until March 2009.

On February 17, 2009, Cole was transported to the Hospital and was seen by Dr. Vetter. Cole complained of chest pain, however, Dr. Vetter diagnosed Cole with probable GERD masquerading as angina. Docket No. 10, p. 5. Dr. Vetter's medical records indicate at that time Cole was taking Oxycontin for back pain, omeprazole for GERD, aspirin which he refuses to take, enalapril which he refuses to take, simvastin and isosorbide mononitrate and colace. Id. Dr. Vetter did not change the medications but recommended Cole restart or stop refusing certain of his prescriptions. Id. Dr. Vetter directed Cole to follow up with Dr. Schantz or the PA at the Jail. Id.

On March 6, 2009, Badger Medical took over the medical contract at the Jail. Dr. Jeffrey Keller (Dr. Keller) and Eric Wells ("Wells"), PA, provided medical services at the Jail for Badger Medical. Dr. Keller and Wells reviewed the prescriptions for inmates in the Jail.

On March 7, 2009, Cole was transported to the Hospital and was seen by Estep, PA. Estep diagnosed Cole with bronchitis and vertigo. Estep prescribed Doxycycline, an Albuterol inhaler and meclizine. Docket No. 45-1, p.3. The written discharge instructions indicated Cole should follow up with Dr. Schantz in 4-5 days. Id. Estep explained in her affidavit that she said follow up with Dr. Schantz as Cole had indicated that was his doctor, but Estep intended that Cole have follow up with some medical provider within one week and Jail medical personnel would satisfy this discharge instruction. Estep did not believe Cole had to be seen by a specific medical provider.

On March 18, 2009, Cole was transported to the Hospital and seen by Rodriguez. Rodriguez signed the line for Physician on the discharge instructions, but it is unclear to the Court whether Rodriguez is a doctor or a PA. Docket No.45-1, p.1. Plaintiff indicates in his Reply to Second Affidavit of James J. Davis and Cherish Estep, P.A., Docket No. 47, that he was seen in the emergency room by Dr. Eddie Rodriguez Lopez. It is also unclear from the discharge instructions what Dr. Rodriguez diagnosed Cole's medical issue to be. Id. The written discharge instructions indicate Cole should follow up with his primary care provider, Dr. Schantz, in 2 to 3 weeks and should have a prescription filled. Id. It is ...


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