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Adkins v. Jackson

United States District Court, W.D. North Carolina, Statesville Division

February 5, 2019

HENRY FORD ADKINS, Plaintiff,
v.
RICK JACKSON, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER comes before the Court on Motions for Summary Judgment filed by Defendant Vicki Coffey, (Doc. No. 102) and Defendants Herbert L. Jackson, Maria Oxford R.N, and Phillip Stover M.D., (Doc. No. 104). Also pending is Plaintiff's Motion to Compel Discovery, (Doc. No. 108).

         I. BACKGROUND

         Pro se Plaintiff's Amended Complaint passed initial review on claims that he received deliberately indifferent medical treatment for a cancerous ear at Brown Creek and Alexander Correctional Institutions. Defendants have now filed Motions for Summary Judgment.

         (1) Amended Complaint (Doc. No. 24)

         Plaintiff alleges in his unverified Amended Complaint that he was assigned to Brown Creek C.I. in 2013 when a pre-cancer on his left ear ulcerated and became extremely painful and swollen. (Doc. No. 24 at 5). Plaintiff put in a number of sick call requests asking for treatment. A doctor at Brown Creek C.I. wrote a medical order for Plaintiff to be seen by a dermatologist, but Superintendent Jackson refused even though Jackson knew of Plaintiff's serious medical need. (Id.). Nurse Oxford refused to make arrangements for proper treatment for Plaintiff in 2013 and 2014. (Doc. No. 24 at 5). When Brown Creek C.I. staff asked permission from the Utilization Review Board (“URB”) to treat Plaintiff's cancerous ear, Dr. Stover refused. (Doc. No. 24 at 7). Plaintiff was assigned to Alexander C.I. around September 2014, and his ear was treated with antibiotics, which did nothing to ease the pain or heal the ear lesion. Head Nurse Coffey delayed sending Plaintiff to a cancer specialist for several months which allowed the cancer to spread and endanger his life. (Doc. No. 24 at 10). After a year of waiting for treatment, most of his ear was surgically removed. (Doc. No. 24 at 5-6). The delay necessitated radiation therapy which caused loss of facial and head hair, teeth, and hearing. (Doc. No. 24 at 6).

         Plaintiff seeks nominal, punitive, and compensatory damages. (Doc. No. 24 at 15).

         (2) Defendant Coffey's Motion for Summary Judgment (Doc. No. 102)

         Plaintiff cannot show that Defendant Coffey was deliberately indifferent to a serious medical need as relates to a growth on his ear while he was at Alexander C.I. It is undisputed that Plaintiff suffers from basal cell cancer on his ear and suffered from a serious medical need. However, it is also undisputed that there is no evidence that Nurse Coffey disregarded any of the risks associated with Plaintiff's growth on his ear. Instead, the undisputed evidence demonstrates that Nurse Coffey sought all available requests for treatment from the NC Medical Utilization Review Board for Plaintiff throughout his incarceration at Alexander C.I., as requested and deemed necessary by the Alexander physicians, physicians' assistants, and third-party specialist providers that saw him. Nothing about the care Nurse Coffey provided is gross incompetence, inadequate or excessive risk to inmate health or safety. The medical records and affidavit of Nurse Coffey demonstrate that the care provided was adequate and above and beyond what was required in most instances. There is no proof that Nurse Coffey was negligent in the care she provided and, even if a simple negligence standard applied Plaintiff's claim would fail because the undisputed evidence demonstrates that Nurse Coffey sought the care available to Plaintiff in treating the growth on his ear.

         Sovereign immunity bars Plaintiff from receiving money damages against Defendant Coffey in her official capacity.

         Qualified immunity shields Defendant Coffey in her individual capacity. It is undisputed that Nurse Coffey was acting on behalf of the government in providing medical treatment to Plaintiff. Plaintiff has not made out a violation of a clearly established right because he essentially takes issue with the method by which appointments and care had to be reviewed by the NC Medical Utilization Review Board prior to appointments being made for him to see a specialist. Further, the evidence shows that Defendant Coffey's actions were absolutely reasonable. Nurse Coffey's duties were to assess Plaintiff's medical complaints, perform nursing assessments, document nursing findings, make appropriate referrals to his treating physician, and follow the treating physician's orders. Nurse Coffey did not have the authority to make appointments based solely on Plaintiff's request. She had to send his requests through the appropriate channels and, once permission was given, the schedulers at Alexander C.I. contacted the providers and made appointments. Nurse Coffey's affidavit establishes that at all times, she was simply working within the standard of care for a nurse and the duties of a nurse, thereby surpassing the care required under the deliberate indifference standard. No. constitutional violation has been shown and Nurse Coffey was reasonable and took part in no actions which were a known violation of the law. Therefore, Plaintiff's claims for monetary damages against Nurse Coffey in her individual capacity should be dismissed.

         (3) Defendants Jackson, Oxford, and Stover's Motion for Summary Judgment (Doc. No. 104)

         The record establishes that Plaintiff's constitutional rights were not violated by Defendants and there is no evidence that Defendants were deliberately indifferent to Plaintiff's serious medical needs while he was at Brown Creek C.I. Defendant Jackson did not have any involvement in Plaintiff's medical treatment at Brown Creek C.I. and, as correctional staff, he would not be responsible for providing medical treatment to inmates. The medical evidence further demonstrates that Plaintiff received reasonable, timely, and appropriate medical treatment in accordance with NCDPS policies and procedures. Defendant Stover's denial of a URB request for a dermatology consult was reasonable and did not amount to deliberate indifference. Plaintiff received a telemedicine consult on April 17, 2013 with Dr. Sarah Chisolm, Department of Dermatology at East Carolina University. She assessed Plaintiff with actinic keratosis on his right hand and seborrheic keratosis on his right chest which was benign. Dr. Chisolm did not note any skin abnormalities involving Plaintiff's left earlobe and Plaintiff did not voice any complaints about his earlobe at that time.

         Less than one year later, Defendant Oxford submitted a request to the URB on March 12, 2014, for a dermatology consultation ordered by the medical provider at Brown Creek C.I., Dr. Hassan. In response to the URB request and as part of his duties as a Medical Consultant and UR review physician, Defendant Stover requested that photographs be taken of Plaintiff's left earlobe and be submitted. The photographs were posted on May 19, 2014. Based on his medical background, training, education, experience, and the information provided to him in the URB request, including photographs of the earlobe, Defendant Stover denied the request for a dermatology consultation. Defendant Stover assessed the earlobe as showing some mild acitinic keratosis and suggested treatment with Efudex. Defendant Stover is not aware of any other interactions involving Plaintiff or the care and treatment of his earlobe, and Defendant Stover never clinically treated Plaintiff at any NCDPS facility.

         The undisputed medical evidence shows that Plaintiff received continuous and appropriate medical treatment for his left earlobe. There is no evidence to show that Defendants' actions or inactions were so grossly incompetent, inadequate, or excessive as to shock the conscience to show deliberate indifference. Plaintiff was provided appropriate medical treatment in accordance with NCDPS policies. Defendant Jackson did not have the authority to determine Plaintiff's course of medical treatment, overrule the medical opinions of healthcare providers, or subscribe Plaintiff medications. Defendants timely addressed Plaintiff's complaints and/or grievances when presented with them. Any claims that Defendants did not adequately respond to Plaintiff's grievances and complaints would also be without merit and does not create a material issue of fact about deliberately indifferent conduct. The record establishes that Defendants adequately, timely, and in good faith responded to Plaintiff's medical concerns.

         To the extent that Plaintiff is alleging supervisory liability, this claim fails because § 1983 does not allow liability based on vicarious responsibility. The record establishes that Defendant Jackson did not supervise or have control over the medical staff at Brown C.I. Further, he had no actual knowledge or direct involvement in Plaintiff's medical treatment. Non-medical correctional officials like Defendant Jackson are only allowed limited information regarding an inmate's health pursuant to HIPPA. The medical evidence shows that Plaintiff received adequate medical treatment. Therefore, the substantial evidence in the record shows that no reasonable juror could find Defendant Jackson liable under a theory of supervisory liability.

         Defendants are entitled to qualified immunity. The record establishes that Defendants acted timely, reasonably, and appropriately with regards to Plaintiff's subjective medical needs. Defendants are also entitled to summary judgment for any punitive damages claims. Plaintiff has failed to provide any evidence of Defendants' intent or motive and has provided nothing to show evil intent or callous indifference to his rights.

         (4) Plaintiff's Responses

         Plaintiff was informed of the importance of responding to Defendants' motions as well as the legal standard applicable to summary judgment motions. See (Doc. No. 107).

         (A) Defendant Coffey (Doc. No. 110)

         Plaintiff alleges that he was transferred to Brown Creek C.I. around August 15, 2013. Prior to the transfer, Plaintiff was being treated for pre-cancer on various parts of his upper body by using Flourouracil cream. After Plaintiff was transferred to Brown Creek, a pre-cancerous lesion developed on the top of Plaintiff's left ear. Plaintiff used the Flourouracil cream on the lesion. Defendant Coffey was deliberately indifferent by failing to take reasonable measures to abate the risk to Plaintiff's serious medical need. Defendants are not entitled to qualified immunity. During Plaintiff's time at Brown Creek, the lesion ulcerated from a pre-cancerous lesion. When Plaintiff first arrived at Alexander C.I. he put in a number of sick call requests and grievances to seek treatment for his swollen, painful cancerous ear. Plaintiff received surgery on May 26, 2015. Cancer had eaten most of Plaintiff's ear between February 2014 and the surgery date.

         During that time all Nurse Coffey and the other medical personnel did was give Plaintiff bandages to cover the unsightly ear. Plaintiff suffered for approximately eight months at Alexander C.I. while he was under the watch of Head Nurse Coffey. “Why would it take 8 months at this facility to get approval to have the cancer removed?” (Doc. No. 110 at 4). Plaintiff is allowed to receive monetary damages for his pain and suffering against Defendants in their individual capacities. Plaintiff “certif[ies]” that “this statement is true to the best of [his] understanding, knowledge, beliefs.” (Doc. No. 110 at 5).

         (B) Defendants Jackson, Oxford, and Stover (Doc. No. 111)

         Plaintiff alleges that he was transferred to Brown Creek C.I. around August 15, 2013. Prior to the transfer, Plaintiff was being treated for pre-cancer on various parts of his upper body by using Flourouracil cream. After Plaintiff was transferred to Brown Creek, a pre-cancerous lesion developed on the top of Plaintiff's left ear. Plaintiff used the Flourouracil cream on the lesion. On or around February 25, 2014, the precancerous lesion ulcerated. It was very painful and sensitive to the touch. Plaintiff put in a sick call request on February 26, 2014 and did not receive any treatment for the ulcerated ear or any pain medication.

         Herb Jackson was the superintendent of Brown Creek in 2013 and 2014. Plaintiff wrote numerous sick call requests while he was at Brown Creek, and grievances to try to get medical treatment for the ear. Superintendent Jackson was responsible for standard operating procedures including overseeing the medical facility at Brown Creek C.I. He is responsible for supervising the medical facility and making sure that the medical staff treat the prisoners adequately and professionally and provide treatment for serious medical needs. Defendant Jackson was deliberately indifferent when he did not order medical staff at his institution to treat Plaintiff's sensitive ulcerated ear in a timely and professional manner. Plaintiff remained at Brown Creek seven months after his ear ulcerated. Superintendent Jackson and his medical staff never did anything to treat the ear or prescribe medication for pain. Superintendent Jackson knew about Plaintiff's serious medical needs as supervisor of the medical department and from sick call requests and grievances. Superintendent Jackson's failure to provide supervision to medical staff amounts to deliberate indifference.

         Nurse Oxford was a registered nurse at Brown Creek and was in charge of providing health care for Plaintiff when he was assigned there in 2013-14. Nurse Oxford was in charge of providing and overseeing adequate treatment for Plaintiff's serious medical needs. Nurse Oxford failed/refused to give Plaintiff adequate medical care for his ulcerated, painful ear. Nor did she attempt to get any pain medication for Plaintiff. As a result of Nurse Oxford's inaction or failure to adequately treat Plaintiff, the ear ulcerated and became cancerous. Nurse Oxford's neglect and refusal of care put Plaintiff at the risk of death or for the cancer to spread to his brain and throughout his body. Nurse Oxford's deliberate indifference resulted in radiation treatment that resulted in the loss of Plaintiff's teeth, hearing, facial hair, and hair on his head, and the weakening of Plaintiff's immune system that resulted in pneumonia. The cancer spread to Plaintiff's forehead on the left side near the cancer on his ear. Plaintiff does not have enough ear left for eyeglasses to rest on; a plastic surgeon says that he needs reconstruction but that he will always have problems with the area. Supervisors' failure to review and respond to an inmate's medical complaints despite knowing that there is a breakdown of services is deliberate indifference.

         Dr. Stover worked at the URB and reviewed medical requests from prison medical departments. Plaintiff's left ear had a precancerous lesion on it in 2013 and Plaintiff was being treated for it and other parts of his body with Flourouracil cream. Plaintiff used the cream as prescribed but, around February 25, 2014, the lesion ulcerated and became very painful and sensitive. Plaintiff put in a sick call request on February 26, 2014 and explained that his ear hurt and would not heal. Nurse Oxford put in a UR request on March 12, 2014 that Dr. Stover reviewed. Dr. Stover refused to approve treatment for the painful ulceration on the ear and said to keep using Efudex or Flourouracil cream. Once the ear ulcerated, Plaintiff could not use the cream to treat his ear. Dr. Stover showed “wanton hatred and deliberate indifference” when he denied Plaintiff's URB request. (Doc. No. 111 at 8). Plaintiff wrote a grievance for Dr. Stover's refusal to approve treatment for Plaintiff's serious medical need. Plaintiff suffered serious pain and mental anguish for approximately a year while he was assigned at Brown Creek before he was transferred to Alexander C.I. on September 11, 2014. Nothing was done to treat the cancer or prescribe any pain medication during that time. Plaintiff has stated a claim for deliberate indifference, supervisory liability, and received such grossly incompetent or inadequate care so as to shock the conscience. Plaintiff is entitled to punitive damages. Plaintiff “certify[ies]” that his statement “is true to the best of [his] understanding and knowledge.” (Doc. No. 111 at 10).

         (4) Evidence[1]

         (A) Affidavit of Vicki Coffey, R.N. (Doc. No. 103-7)

         Defendant Coffey, a Registered Nurse, has been a practicing nurse for more than 40 years. She was employed at Alexander C.I. from February 2004 until April 14, 2015 and has served in the roles of nurse, lead nurse, and head nurse. Defendant Coffey followed all NCDPS policies and procedures while treating Plaintiff. Plaintiff's allegation that Defendant Coffey was deliberately indifferent by prolonging his being seen by a cancer specialist/surgeon is “wholly untrue.” (Doc. No. 103-7 at 1). Defendant Coffey did not deliberately delay and/or deny Plaintiff's medical needs, nor did she ever consider taking any action with any knowledge or reason to know that it would cause Plaintiff pain. Plaintiff was transferred in from another facility and received a screening exam upon entry. At that time, he reported a growth on his ear for which he had previously seen a dermatologist.

         Defendant Coffey examined Plaintiff and was able to get an order from a nurse practitioner, supervised by Dr. Jones at Alexander C.I., to see a dermatologist and surgeon. Defendant Coffey followed procedures and sent the order to the Medical Records Department at Alexander C.I., who sent the order request to the URB in Raleigh via the electronic computer system. The UR had 30 days by policy to review the order request and had the ability to ask for further information before deciding whether Plaintiff could see a specialty provider.

         The URB approved the order for a dermatologist visit and the Medical Records Department at Alexander C.I. set the appointment.

         The dermatologist requested that Plaintiff see a surgeon, and Alexander C.I.'s Medical Records Department again sent the order request to the URB for approval. The URB approved the surgeon appointment and, on the last day Defendant Coffey worked at Alexander C.I., the Medical Records Department informed Defendant Coffey, who so informed Plaintiff. Plaintiff was always treated with dignity and respect by Defendant Coffey and any staff she observed, and she practiced within the standards of care in her treatment of Plaintiff.

         Any time Defendant Coffey served Plaintiff, she examined him, scheduled necessary appointments with the providers at Alexander C.I., and met the demands in the ordinary course of business with diligence and care to ensure Plaintiff's needs were accommodated pursuant to NCDPS policies and procedures. Defendant Coffey never prolonged or withheld care to Plaintiff, nor did she act with any animus towards him. Rather, she timely and professionally provided him with nursing care.

         At all times and in all ways, Nurse Coffey practiced within the standards of care in her care and treatment of Plaintiff and treated him with dignity and respect throughout that time.

         (B) Affidavit of Herbert L. Jackson (Doc. No. 106-1)

         Defendant Jackson was employed by NCDPS from 1981 until 2016. He was Assistant Superintendent for Custody and Operations at Brown Creek C.I. from 1996 to 2005, and Correctional Administrator at Brown Creek C.I. from 2005 to 2016. As Correctional Administrator at Brown Creek C.I., Defendant Jackson is responsible for overseeing all staff and inmates under his supervisory chain of command to ensure compliance with NCDPS policies and procedures. His duties included review of any grievances submitted by an inmate at Brown Creek C.I. prior to the Supervising Manager signing the Step 2 Response to the grievance.

         During all times relevant to this case, correctional staff like Defendant Jackson would not be responsible for personally providing clinical health care to inmates at Brown Creek C.I. including medications and medical treatment. Defendant Jackson has no formal medical training and he is not licensed to prescribe medications. Defendant Jackson is not a health care provider and was not, at any relevant time, responsible for personally providing clinical or medical care to inmates at Brown Creek C.I. Defendant Jackson is not responsible for the clinical supervision of any clinical or medical care providers at the facility. As Correctional Administrator at all relevant times, his responsibilities included administrative, but not clinical, supervision of health-related operations at the facility. Any medical treatments or medications can only be performed or prescribed by licensed medical staff.

         NCDPS policy and procedures provide that clinical matters involving medical care judgments are the sole province of licensed clinical and mental health care providers, not the Correctional Administrator. Pursuant to NCDPS policy and procedures, all inmates can access routine health care through the sick call process and all inmates have the ability to declare a medical emergency. Correctional staff such as Defendant Jackson would not have any training on the appropriate medical treatments for inmates, nor would he have the ability to control or alter a plan of care concerning an inmate's medical care. Correctional staff such as Defendant Jackson are only allowed limited information regarding an inmate's health records pursuant to HIPPA.

         In addition to the sick call appointment request process, Plaintiff also had access to the grievance process through which he could complain about his medical or mental health treatment. Any of Plaintiff's complaints would be investigated through the grievance process. Plaintiff did file a grievance on June 28, 2014, in which he alleged that the medical department at Brown Creek C.I. was deliberately indifferent to his serious medical needs. The grievance was investigated and it was determined that Plaintiff was seen by the medical department for his ear on March 4, 2014, and was referred to be seen by Dr. Hassan. Dr. Hassan requested a dermatology consult on March 12, 2014, and a UR request was submitted by Nurse Oxford. On May 19, 2014, photographs were sent at Dr. Stover's request. Dr. Stover denied the URB request for a dermatology consult. The Step One grievance response noted that Plaintiff had been prescribed Efudex and that Plaintiff had not resubmitted a sick call appointment request indicating that he was having continuing problems or pain. At Step Two, the Step One response was confirmed. The Step Two investigation noted that Plaintiff was examined and was given appropriate medication, and that his URB request was timely processed. At Step Three, the Step One and Two responses were confirmed.

         As Correctional Administrator, Defendant Jackson was not personally involved in the decision-making process or otherwise involved in the URB. Defendant Jackson is unaware of any medical staff intentionally preventing Plaintiff from receiving medical treatment or being deliberately indifferent to his serious medical needs. He is also unaware of any healthcare provider who intentionally delayed providing medical treatment to Plaintiff.

         (C) Affidavit of Maria Oxford, R.N. (Doc. No. 106-5)

         Defendant Oxford was employed with NCDPS as a Registered Nurse at Lanesboro C.I. from April 2013 through March 2015 and resigned effective March 9, 2015. From September 2013 through April 2014, she worked as a Registered Nurse at Brown Creek C.I. As a Registered Nurse, Defendant Oxford is responsible as the primary care provider of the inmates who have various acute and chronic diseases to ensure compliance with NCDPS policies and procedures.

         NCDPS policy and procedures provide that clinical matters involving medical care judgments are the sole province of licensed clinical and mental healthcare providers such as Defendant Oxford. The Facility Head is responsible for providing an environment that ensures the appropriate delivery of medical and mental health services. The Facility Head designates in writing a specific individual with the responsibility for overseeing/managing the provision of health services to their facility. The Facility Head or designee is responsible for making sure that procedures, such as sick call appointment requests, exist whereby the inmate population has access to healthcare.

         Pursuant to NCDPS policy and procedures, all inmates can access routine healthcare through the sick call process and can declare a medical emergency. Plaintiff also had access to the grievance process through which he could complain about his medical or mental health treatment. Any of Plaintiff's complaints would be investigated through the grievance process.

         Based on Defendant Oxford's review of the medical records, Plaintiff was assessed on February 22, 2013 at Pamlico C.I. with multiple areas of extensive sun damage with resultant actinic keratosis, seborrheic keratosis and an area on his right hand that was suspicious for basal cell carcinoma. There was no specific mention or complaints about Plaintiff's left earlobe. The medical provider's plan at that point was to refer Plaintiff to dermatology for further assessment. Plaintiff underwent a “telemedicine consultation” with Dr. Sarah Chisolm on April 17, 2013. Plaintiff was evaluated for skin/sun damage. Dr. Chisolm assessed Plaintiff with actinic keratosis on his right hand and seborrheic keratosis on his right chest which was benign or non-cancerous. Dr. Chisolm did not note any skin abnormalities involving Plaintiff's left earlobe and Plaintiff did not voice any subjective complaints regarding his left earlobe.

         On February 2, 2014 Plaintiff filled out a Sick Call Appointment Request to be seen by the medical department at Brown C.I. for a painful place on his ear that would not heal. On February 4, 2014, Plaintiff advised the medical department that his issues had been addressed in a previous sick call and did not request any further treatment at that time.

         On February 26, 2014 Plaintiff complained in a Sick Call Appointment Request that he needed a dermatologist to cut a skin cancer off his left ear that was painful and would not heal. The request was triaged by a nurse within 24 hours pursuant to NCDPS policy and procedures and Plaintiff was scheduled to be seen by a nurse in Sick Call. Defendant Oxford had no involvement in the triage process or scheduling process for Plaintiff to be seen in sick call. Plaintiff's appointment was scheduled for March 4, 2014, six days after Plaintiff filled out the request, which is reasonable and timely pursuant to NCDPS policy and procedures. Defendant Oxford saw Plaintiff on March 4, 2014. She noted that Plaintiff complained that his left earlobe at the top hurts when he lies on it and he is using Efudex/Fluorouracil to treat it but that it does not seem to be healing. Defendant Oxford noted the following during the physical assessment of the earlobe: “[Left] ear tip [slightly] swollen [with] dry skin [and] noted pinpoint sized black dot on ear in swollen area. Pain when laying down is 5/10 pain scale, otherwise doesn't bother him. [History] basal cell [cancer]. [Dermatology] noted for them to reassess [changes].” (Doc. No. 106-5 at 5). Based on the physical assessment and Plaintiff's family history, on March 4, 2014, Defendant Oxford referred Plaintiff to be seen by Dr. Hassan.

         On March 12, 2014, Plaintiff was seen by Dr. Hassan, who requested a dermatology consult to evaluate Plaintiff's left earlobe. In order to schedule the dermatology consult pursuant to Dr. Hassan's orders, Defendant Oxford submitted a request to the URB that same day.

         From September 2013 through April 2014, Defendant Oxford worked as a Registered Nurse at Brown Creek C.I. To the best of her knowledge, after April 2014, she was no longer involved with Plaintiff's medical care or treatment. Based on her review of the records, Plaintiff continued to submit Sick Call Appointment Requests regarding his left ear after he was transferred out of Brown Creek C.I., all of which were timely, reasonably, and appropriately addressed. Defendant Oxford had no further involvement with Plaintiff's treatment after he was transferred from Brown Creek C.I.

         On July 3, 2014, Plaintiff filled out a Sick Call Appointment Request stating “I have cancer on my left ear.” (Doc. No. 106-5 at 6). His request was triaged the same day and he was seen in the medical department at Brown Creek C.I. on July 9, 2014. In assessing Plaintiff, the nurse noted a “[s]mall red dot on the top of left ear. Inmate has been seen by MD for this before - UR request for dermatology was denied… Inmate to be seen by MD for evaluation.” (Doc. No. 106-5 at 6).

         On September 11, 2014, Plaintiff filled out a Sick Call Appointment Request stating “I have a cancerous ear, and it is very painful. I need the place cut off.” (Doc. No. 106-5 at 6). The request was triaged the next day and Plaintiff was seen by the medical department at Alexander C.I. on September 20, 2014. The nurse noted an “[a]rea to top of left ear appears red, no [signs/symptoms of] infection, states it is tender to touch and he is unable to sleep on that side [due to] pain. No. drainage. There is a small area that may be where there was some skin removed.” (Doc. No. 106-5 at 7). Plaintiff was instructed to return to medical “prn” or on as as-needed basis. (Doc. No. 106-5 at 7).

         On October 2, 2014, Plaintiff was seen by the medical provider regarding his ear and was diagnosed with an earlobe infection. Plaintiff was prescribed an antibiotic to treat the infection.

         On October 13, 2014, Plaintiff filled out a Sick Call Appointment Request stating “I saw the doctor app. a week ago about an infection of my ear” and that he had run out of antibiotic without any improvement of the symptoms. (Doc. No. 106-5 at 7). Plaintiff's request was triaged the next day and it was noted that this is a duplicate request.

         On October 19, 2014, Plaintiff filled out a Sick Call Appointment Request stating “[m]y ear that the doctor treated me for app. a week has gotten worse. It is swollen and is draining fluid.” (Doc. No. 106-5 at 7). Plaintiff's request was triaged the same day and Plaintiff was assessed by a nurse at Alexander C.I. on October 21, 2014. Plaintiff told the nurse that “[i]t seemed like it was going to heal but then it didn't. I think if I'd had some Neosporin and more antibiotics it would have.” (Doc. No. 106-5 at 8). The nurse noted that the ear appeared red and was tender to the touch, and no drainage was noted. Plaintiff was placed on the list to see the medical provider for possible further antibiotic treatments.

         On October 23, 2014, Plaintiff was seen by the medical provider who assessed the ear as red and swollen with no drainage. Plaintiff completed his antibiotic treatment as previously ordered on October 2, 2014, and the medical provider prescribed 10 days on a different antibiotic to treat the infection. The provider also ordered an antibiotic cream for 10 days. Plaintiff was scheduled to follow up in two weeks for further evaluation.

         On November 13, 2014, Plaintiff was seen by the medical provider as a follow up. The provider noted swelling and drainage and diagnosed a persistent earlobe infection and ordered cultures. The provider also ...


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