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Rogers v. Hierholzer

United States District Court, W.D. Texas, San Antonio Division

August 8, 2019

AARON MICHAEL ROGERS, Plaintiff,
v.
RUSTY HIERHOLZER, KERR COUNTY SHERIFF, SYLVIA FORAKER, KERR COUNTY JAIL ADMINISTRATOR, and DR. GLEN SMITH, KERR COUNTY JAIL DOCTOR, Defendants.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE.

         To the Honorable United States District Judge Fred Biery:

         This Report and Recommendation concerns Defendants Sheriff W.R. “Rusty” Hierholzer and Jail Administrator Sylvia Foraker's Motion for Summary Judgment [#70] and Defendant Glen Smith, M.D.'s, Motion for Summary Judgment [#71]. Also before the Court are Plaintiff Aaron Michael Rogers's Response to Defendant Dr. Smith's Motion for Summary Judgment [#72], Plaintiff's Response to Defendants Hierholzer and Foraker's Motion for Summary Judgment [#74], Defendant Dr. Smith's Reply in Support of His Motion for Summary Judgment [#78], and Defendants Hierholzer and Foraker's Reply in Support of Their Motion for Summary Judgment [#79]. On January 17, 2017, the Honorable Fred Biery referred all pre-trial proceedings in this case to the undersigned for disposition pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. The undersigned has authority to enter this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Defendants Hierholzer and Foraker's Motion for Summary Judgment and Defendant Dr. Smith's Motion for Summary Judgment be GRANTED.

         I. Procedural Background

         This case involves a challenge by Plaintiff Aaron Michael Rogers (“Rogers”) to his conditions of confinement at the Kerr County Detention Center in Kerrville, Texas. Plaintiff was a pre-trial detainee at Kerr County Jail from October 23, 2016 to May 24, 2017, at which time he was transferred to a Texas Department of Criminal Justice facility. Rogers, originally proceeding pro se, filed a civil rights complaint against Defendants Kerr County Sheriff W.R. “Rusty” Hierholzer (“Hierholzer”), Kerry County Jail Administrator Sylvia Foraker (“Foraker”), and Glen Smith, M.D. (“Dr. Smith”) (collectively, “Defendants”) [#1]. The Court subsequently appointed an attorney to represent Rogers [#28], who then filed an amended complaint [#34]. Defendants now move for summary judgment [#70, #71], and their motions are ripe for review.

         II. Facts Established by the Summary-Judgment Record

         The summary-judgment record, with disputed facts construed in Rogers's favor, establishes these facts. Rogers was a pre-trial detainee at Kerr County Detention Center in Kerrville, Texas, from October 23, 2016 to May 24, 2017, at which time he was transferred to a Texas Department of Criminal Justice facility. On December 22, 2015, Rogers intentionally shot himself in the face with a .357 Magnum revolver, causing serious injury to his face and jaw. ([#74-7] at 2.) Rogers was treated at the San Antonio Military Medical Center (“SAMMC”), where doctors repaired his jaw with a titanium prosthesis held together by wires on the top and bottom of his gums to hold his teeth in place. (Id.) Rogers was discharged from SAMMC on January 14, 2016. ([#71-5] at 78.) In February 2016, Rogers returned to SAMMC for a follow-up appointment. ([#74-7] at 4-6.) The medical team that treated Rogers decided to leave the titanium prosthesis in place for the time being and advised Rogers to make another follow-up appointment. (Id. at 5-6.)

         On October 23, 2016, Rogers was arrested for violating his parole by failing to report to his parole officer and two counts of unlawful possession of a firearm by a felon. ([#74-1] at 2.) He was transported to and held at Kerr County Jail. (Id.) Kerr County contracts with Correct Care Solutions (“CCS”) to provide medical care for the inmates at Kerr County Jail. (Oral Dep. of W.R. “Rusty” Hierholzer (“Hierholzer Dep.”) [#70-1] at 24-30.)

         Upon arrival, Rogers was evaluated by medical personnel and reported that he had a current painful dental condition or dental complaint. ([#71-5] at 27.) Medical staff noted that Rogers had been shot in the face and that he suffered from bipolar disorder, depression, and anxiety. (Id. at 27.) Rogers reported that the wires that held his titanium prosthesis together had loosened and were cutting into his gums, causing him face and jaw pain, which he rated as “8/10.” (Id. at 27-28.) Rogers also reported that he had been prescribed Hydrocodone for pain and that he had been or was currently on the following psychotropic medications: Prozac, Risperdal, Lithium, Trazadone, and Seroquel. (Id.)

         On October 25, 2016, Rhonda Maurer, a nurse practitioner who supervises the nursing staff at Kerr County Jail, evaluated Rogers. ([#71-7] at 92-97.) Rogers informed Maurer that his last visit to a maxillofacial surgeon was in February 2016 and that he was supposed to have a follow-up appointment in March 2016. (Id. at 93-95.) Maurer documented that the gunshot wound on Rogers's jaw was “very concerning with obvious bone exposure.” (Id. at 96.) Maurer further reported that she planned to see if Rogers could “bond out” so that he could follow up with his surgeons. (Id.) Maurer prescribed Lithium and Cymbalta to treat Rogers's bipolar disorder, Motrin and Tylenol to help Rogers manage his pain, melatonin to treat Rogers's insomnia, and wax to coat the wiring in his jaw. (Id.) Maurer also ordered that Rogers be placed on a soft diet. (Id.) On October 26, 2016, a nurse ordered X-rays to be taken of Rogers's chest and right mandible to rule out tuberculosis and osteomyelitis, respectively. (Id. at 89.)

         On October 30, 2016, Rogers informed jail officials that he had pulled a bone fragment from his mouth. (Id. at 88.) A nurse removed the fragment, cleaned the wound area, administered an antibiotic, and covered the wound with a large bandage. (Id.) Rogers told the nurse that he was afraid that the wound would become infected and requested that he be hospitalized. (Id.) On November 1, 2016, Rogers requested Ensure (a nutritional supplement) with his meals. (Id. at 102.) Maurer was notified and ordered that Rogers receive Ensure at least three times a day. (Id.) She also instructed the nursing staff to monitor Rogers's weight and set up an appointment with a maxillofacial surgeon as soon as possible. (Id.) On November 2, 2016, Rogers requested that he be prescribed Hydrocodone, but was informed that Hydrocodone was not a medication that Kerr County Jail prescribed. ([#71-5] at 18.)

         On November 4, 2016, Rogers was examined by Maurer for a second time, after which Maurer ordered several tests for Rogers, including a complete blood count, a comprehensive metabolic panel, an erythrocyte sedimentation rate, a c-reactive protein test, and a thyroid-stimulating hormone test. ([#71-7] at 103.) On November 7, 2016, Rogers complained that the wires in his mouth were cutting his cheeks. ([#72-1] at 14.) On November 8, 2016, Maurer consulted with Dr. Smith, who advised that Rogers could be prescribed Hydrocodone and that Rogers needed to be seen by an oral maxillofacial surgeon as soon as possible. ([#71-7] at 82.) Maurer noted that, because Hydrocodone is an opioid pain reliever, the jail administration would have to approve its administration to Rogers. (Id.) The next day, Taylor Paxson[1], LVN, the Health Service Administrator at Kerr County Jail, asked Maurer to complete an outpatient referral form for Rogers. ([#71-5] at 73.) Per Kerr County Jail's policies and procedures, “[i]nmates are responsible for dental expenses unless indigent.” ([#71-2] at 4.)

         On November 10, 2016, Rogers submitted a “Healthcare Request” form in which he complained of being in “constant pain” and indicated that he no longer wanted to take Cymbalta, Tylenol, or ibuprofen. (Id. at 15.) Rogers also told a nurse that he wanted to stop taking his prescribed medications and, when asked why, explained, “Because it will look better when I sue.” ([#71-7] at 80.) That same day, Maurer advised the nursing staff that, based on discussions with Dr. Smith and Ronald Salik, M.D., the Regional Medical Director and Dr. Smith's supervisor, Rogers would not be prescribed Hydrocodone because his laboratory tests did not indicate infection or inflammation, his injury was not acute, and his activities and their objective observations did not indicate a level of pain that would warrant medications other than Tylenol or Motrin. (Id. at 104.) On November 11, 2016, Rogers refused Motrin. ([#71-5] at 37.) On November 12, 2016, Rogers refused Lithium and Ensure, as well as a nurse's offer of dental wax to coat the wiring in his jaw. ([#71-7] at 72.) It was also noted that Rogers had manipulated his dental braces and that the wires along his inner cheeks had been bent to point directly into the cheek tissue. (Id. at 78.)

         On November 17, 2016, Rogers met with Foraker and Paxson to discuss his medical concerns. (Id. at 68-71.) At that time, Paxson informed Rogers that it had been noted that he had refused to take some pain medications. (Id. at 70.) Paxson also explained to Rogers that Maurer had discussed his medical situation with Drs. Smith and Salik and that they agreed that Rogers should not be prescribed Hydrocodone at that time. (Id. at 68.) Rogers then requested that he be seen by an oral maxillofacial surgeon to have the wires in his mouth removed and receive a bone graft, but Paxson informed him that his laboratory tests did not indicate infection or inflammation and that his condition was not an emergency. (Id. at 68-69.)

         On November 30, 2016, Rogers refused Tylenol and Ensure and complained of a foul taste in his mouth for the past three days. (Id. at 65.) When asked why he had not informed medical staff sooner, Rogers responded, “I will do whatever it takes to get an infection and get all this taken out of my mouth.” (Id.) On December 2, 2016, when a nurse presented Rogers with some paperwork to fill out so that his indigent status could be determined, Rogers refused, stating, “[m]y court case has gone through and been filed, so I am going to be suing you all for everything I need.” (Id. at 64.) On December 3, 2016, Rogers complained that he was having difficulty sleeping at night and that he “need[ed] better meds.” ([#72-1] at 16.) On December 4, 2016, Rogers requested that a “real dentist” look at his mouth as soon as possible. (Id. at 18.) On December 11, 2016, Rogers indicated that he was having trouble chewing and swallowing his food and that his tongue was “tearing away” from his jaw. (Id. at 17.)

         On December 13, 2016, Rogers met with Maurer to discuss his jaw issues. ([#71-7] at 58.) Maurer examined Rogers's mouth and jaw and noted: “There is no change from my previous exam. No. redness, inflammation, or lesions to gums or mucus membranes noted. No. lymphadenopathy. Swelling to right cheek/jaw is unchanged. No. reports of fever. No. swallowing problems.” (Id.) Maurer indicated that Rogers would continue to be prescribed Motrin and Tylenol to relieve his pain, as well as Ensure three times a day. Maurer also ordered that Rogers be prescribed Orajel (an antiseptic mouth sore rinse) three times a day. (Id.)

         On December 27, 2016, Rogers stated that one of his wisdom teeth was causing him “excruciating pain” and needed to be pulled, but, upon examination, Maurer believed that the condition of the tooth in question was not emergent or urgent and that immediate extraction was not required. ([#71-5] at 10-11.) On January 7, 2017, Rogers submitted a Healthcare Request form in which he wrote, “Please kill me already! I'm sick and tired of being in pain due to my top left wisdom tooth.” ([#71-6] at 4.) On January 10, 2017, Maurer examined Rogers and reported that:

Oral exam revealed moist pink mucus membranes without lesions. Chronic swelling to right lower jaw is not as pronounced today. The right lower jaw defect is unchanged and there is no inflammation or s/s of infection noted at this time.
I note the 3rd molar to upper left jaw has broken off and only a small portion of the crown remains. There is no swelling, redness or drainage to this area. Pain noted when tooth was touched with tongue blade.
IM has been on tylenol [sic] and motrin [sic] for chronic jaw pain. There is no evidence of infection at this time and pain management is the only intervention indicated.
IM stated his family would be willing to make payment arrangements with a dentist for extraction of the tooth. IM stated the chronic pain he has to the right lower jaw is manageable and he is able to use wax on the wires to prevent cutting the inside of his mouth. However, he states he is having difficulty managing the acute pain from the broken tooth.
I advised him to have his family talk with medical staff regarding arrangements for dental extraction.
I will call Dr. Altgelt to see if he would be able and willing to extract this tooth given IM's history of GSW to the face/mouth which has distorted the ...

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