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Vessell v. Collier

United States District Court, E.D. Texas, Tyler Division

June 1, 2018

LEON D. VESSELL, #2022742
v.
BRYAN COLLIER, ET AL.

          ORDER OF DISMISSAL

          RON CLARK, UNITED STATES DISTRICT JUDGE

         Plaintiff Leon D. Vessell, an inmate confined in the Texas prison system, proceeding pro se and in forma pauperis, brings the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. § 1983. The sole remaining defendant is Nurse Practitioner Gwendolyn Myles. The complaint was referred to United States Magistrate Judge K. Nicole Mitchell, who issued a Report and Recommendation (“R&R”) (Dkt. #53) concluding that Ms. Myles' motion for summary judgment (Dkt. #46) should be granted. Mr. Vessell has filed objections. (Dkt. #56). After conducting a de novo review of the record, the pleadings, and the paper on file, the court concludes that the R&R is correct and that the objections lack merit.

         Plaintiff's Factual Allegations

         Mr. Vessell alleges that starting on October 13, 2015, Ms. Myles failed to provide him medical care for early stages of edema to his lower extremities. He adds that she refused to review his prior medical records, including a Correctional Managed Care Intake History and Health Screening form (“HSM-13”). She likewise failed to update his medical records to include the form, which greatly reduced his ability to receive medical treatment.

         Mr. Vessell states that he was reassigned to the Powledge Unit, and Ms. Myles was a medical provider at that unit as well. He alleges that she repeatedly continued to be deliberately indifferent to his serious condition; instead, she only offered him an increase in blood pressure medication and a colonoscopy - which were not related to his edema or cellulitis.

         Mr. Vessell notes that he started grievance procedures. On April 26, 2016, he and other inmates were interviewed regarding Ms. Myles' deliberate indifference. He asserts that Ms. Myles was terminated shortly thereafter. He subsequently received a course of treatment that included antibiotics, bandage changes and hospitalizations. He once feared that death would have come or amputation. In his first amended complaint (Dkt. #12), he asked for $550, 000 in compensatory damages and $240, 000 in punitive damages. In his second amended complaint (Dkt. #34), he does not specify the amount of money he is seeking in damages.

         Ms. Myles' Motion for Summary Judgment

         Ms. Myles filed a motion for summary judgment (Dkt. #46) on October 27, 2017. In support of the motion, she attaches a copy of Mr. Vessell's medical records and an expert report provided by Dr. Steven Bowers. Ms. Myles argues that the competent summary judgment evidence does not support a claim of deliberate indifference and that she is entitled to qualified immunity and Eleventh Amendment immunity.

         Dr. Bowers provides an affidavit containing a thorough discussion concerning Mr. Vessell's medical records in his report. His discussion includes the following:

I have been asked to review the above referred records in order to provide an expert medical opinion(s) as to the medical care provided to Leon Vessell by Gwendolyn Myles, nurse practitioner (NP). Plaintiff claims NP Myles deprived him of medical services for his early stages of leg edema; failed to update his medical records to include the HSN-13, which reduced his ability to receive medical treatment in the future; increased his blood pressure medication, and ordered a colonoscopy which was not related to the edema in his legs.
Medical Review:
I have reviewed Mr. Vessell's medical record and more specifically his encounters with NP Myles. Mr. Vessell entered the Texas Department of Criminal Justice (TDCJ) on October 8, 2015 through TDCJ's Gurney Unit located in Palestine, Texas. During Mr. Vessell's intake processing, a HSM-13-Correctional Managed Care Intake History and Health Screening form was completed. This form is completed pursuant to Correctional Managed Health Care Policy E-32.1, Receiving, Transfer and Continuity of Care Screening. The HSM-13 form is completed during the intake process and contains information provided by the patient and provides information relating to the patient's family medical history, personal medical history, infectious disease history, behavior and mental status, and thought content. The HSM-13 form is only completed during an inmate intake processing into TDCJ.
Subsequent transfers to other TDCJ units utilize a different screening form. The completed HSM-13 form was placed in Mr. Vessell's medical record for reference. Updates are not required of the HSM-13 form because a comprehensive medical evaluation is completed on all new incoming offenders within seven days of their arrival in the system. Mr. Vessell's comprehensive medical evaluation was performed on October 13, 2015 by NP Myles. This clinical evaluation included evaluation of the patient's head and neck, eyes, ENT (ears, nose and throat), dental, chest/breast, cardiovascular, hemopoietic/lymphatic, abdomen, gastrointestinal, endocrine/metabolic, nutritional, upper and lower extremities, spine, skin, rectal, genitourinary, neuro and psych. NP Myles noted that Mr. Vessell's lower extremities had full range of motion, were symmetrical in strength, and had no edema (swelling). NP Myles also noted the patient had previously been diagnosed with hypertension, Hepatitis C, and bipolar disorder. NP Myles ordered housing and work restrictions on the Health Summary for Classification form (HSM-18), a Chronic Care Clinic visit for his hypertension and Hepatitis C in 30 days, and various laboratory tests.
On October 17, 2015, Mr. Vessell was seen in the Contagious/Infectious Disease clinic. It was noted that the patient had a history of a positive PPD test (skin test for tuberculosis (TB)) in 2012 and had previously taken medication. NP Myles was informed of this information and ordered a chest X-ray. X-rays results dated October 21, 2015 did not reveal any signs that Vessell had TB.
On November 23, 2015, Mr. Vessell was seen in the Chronic Care clinic by physician assistant (PA) Joseph Curry. During that visit PA Curry noted the patient had no clubbing, cyanosis or edema in his extremities.
On January 5, 2016, NP Myles ordered Vessell Engerix-B (Hepatitis B vaccine). On January 8, 2016 NP Myles ordered additional laboratory testing and the results were reviewed on January 13, 2016.
On January 11, 2016, Mr. Vessell was seen by Dr. Charles Adams for complaints of lower extremity swelling. Dr. Adams noted the patient had 1 pitting edema and ordered TED stockings for one year and a sedentary work restriction.
On February 5, 2016, NP Myles examined Mr. Vessell for complaints of headaches, bleeding nostrils, and productive cough with green phlegm. The patient's vital signs were taken and it was noted that his blood pressure was high at 160/80 and all other vital sign (pulse, respiration, temp.) readings were within normal limits. The examination findings showed the patient had a regular heart rate and rhythm, his lungs were clear on both sides, and his nostrils had bright red blood with no clotting noted and no lesions to nose. Mr. Vessell was assessed with uncontrolled hypertension, allergies and obesity (BMI-31). The plan of care was an order for nasal spray with instructions for saline nose drops, blood pressure check weekly for two weeks, take two Prinivil (Lisinopril) until new pill pack is received, and an order to increase Lisinopril from 10mg to 20mg daily.
On February 23, 2016, Mr. Vessell was seen in nursing sick call for complaints of passing blood in his urine. An examination and urinalysis was performed by the sick call nurse and NP Myles was contacted and informed of the patient's complaints and the abnormal findings. NP Myles gave orders for a urine culture and Amoxicillin 500mg (antibiotic) twice daily for seven days.
On February 25, 2016, Mr. Vessell saw NP Myles for a physical exam. The record notes the patient had no complaints, a past medical history of Hepatitis C, hypertension, and asthma. The physical examination findings were all normal except for a high blood pressure reading of 172/92, and petite (slight) edema and hypopigmentation (loss of skin color) were noted in the patient's lower extremities. NP Myles counselled the patient on avoiding salt and junk foods and noted that the patient refused to change his blood pressure medication. These treatment recommendations by NP Myles are part of the standard treatment ...

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