Civil No. 05-5197 (W.D. Ark. Jul. 14, 2006)

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McCarthy v. Mullins

United States District Court, W.D. Arkansas, Fayetteville Division

Jul 14, 2006

Civil No. 05-5197 (W.D. Ark. Jul. 14, 2006)

Opinion

Civil No. 05-5197.

July 14, 2006

ORDER

BEVERLY JONES, Magistrate Judge

On May 22, 2006, defendants filed a summary judgment motion (Doc. 20). To assist plaintiff in responding to the summary judgment motion, the undersigned is propounding a questionnaire. The court will consider plaintiff's response to the questionnaire in issuing a report and recommendation on the summary judgment motion.

For this reason, Danny T. McCarthy is hereby directed to complete, sign, and return the attached response to defendants' summary judgment motion on or before August 18, 2006. Plaintiff's failure to respond within the required period of time may subject this matter to dismissal for failure to comply with a court order.

RESPONSE TO SUMMARY JUDGMENT MOTION

TO: DANNY T. McCARTHY

These questions and answers will serve as your response to defendants' motion for summary judgment. You may use additional sheets of paper in responding to these questions. You must file this response by August 18, 2006.

1. You were booked into the Benton County Detention Center (BCDC) on February 2, 2005, on a hold from the United States Marshal Service.

Agree ____ Disagree ____ Without knowledge to agree or disagree ____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 2.

2. Were you incarcerated at the BCDC solely because of the pending criminal charges?

Answer: Yes ___________ No ___________.

If you answered no, please state whether you were serving a sentence or your probation, parole, or supervised release had been revoked.

3. You had been arrested at Hot Springs Federal Court and a note was made on your criminal intake form to use caution because you had a violent history.

Agree ____ Disagree ____ Without knowledge to agree or disagree ____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 3.

4. As part of your intake, a medical questionnaire was completed. You indicated you had seizures due to epilepsy, allergies, asthma, and tuberculosis. You also indicated you had back surgery eighteen months before and had a metal plate in your head.

Agree ____ Disagree ____ Without knowledge to agree or disagree ____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 4.

5. You were given a list of detainee rules which you signed.

Agree ___ Disagree ____ Without knowledge to agree or disagree ____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 5.

6. You were given an inmate telephone system notice and signed the notice.

Agree ____ Disagree ____ Without knowledge to agree or disagree ____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 6.

7. A booking check list was completed by Sgt. Nance.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 7.

8(A). Your personal property was listed and you signed the list of your property.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 8.

(B). The list did not show any prescription medications.

Agree ____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 8.

(C). When you were brought to the jail did you bring your prescription medications with you?

Answer: Yes _________ No ____________.

If you answered yes, please state: (a) the name of each medication you brought with you; (b) what medical condition the medication was for; (c) who prescribed the medication; and (d) whether you received the medication after you were booked in.

If you answered no, please state why you did not bring your medication with you.

9. You were issued a uniform, mattress, towel, etc.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

10. On February 3, 2005, you were seen by Dr. Mullins. When Dr. Mullins told you that you did not have any sign of asthma, or if you had some it was very mild, you began to argue with Dr. Mullins and said to just throw your medicine away and put it all in a box and you would talk to the U.S. Marshal.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 9.

11. Dr. Mullins also noted your back pain was questionable.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 9.

12. Dr. Mullins prescribed Dilantin, Fenobarb, and Combivent. Dr. Mullins also indicated you would be given 500 mg. of Calcium a day. Dr. Mullins believed you were over medicated. Dr. Mullins stated they would follow you closely.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at pages 9 10.

13. Dr. Mullins indicated you came to the jail with the following medications: Aerobid, Combivent inhaler, Dilantin, Calcium, Absorbase ointment, Guaifunesin, Ducosate, Multiple Vitamin, Trazodone, Cyclobenzaprine or Flexeril, Renitidine, Artificial tears, and Febobarb.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 10.

14. On February 7, 2005, you were released to the U.S. Marshal at 7:58 a.m. and then booked back into the BCDC at 7:07 p.m.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 13.

15. On February 7, 2005, your Dilantin level was checked at the Northwest Medical Center of Benton County.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 15.

16. A criminal intake from was completed by Deputy Lisenbee, a medical intake form was completed, and you were given a notice regarding the inmate telephone system which you signed.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at pages 16-18.

17. At 12:16 p.m. on February 7, 2005, you were released to Deputy Skourup and Deputy Conner per the U.S. Marshal because you had no local charges.

Agree ____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 20.

18. Releasing deputy Dragovich initialed the procedures regarding release.

Agree ____ Disagree ____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 19.

19. Were you actually released from the BCDC or did you continue to be held there? Answer:

20. On February 17, 2005, you submitted a request asking to be put in general population instead of administrative segregation. Lt. Carter responded that you would remain in your current housing status.

Agree ____ Disagree ____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 21.

21. On March 29, 2005, you submitted a grievance complaining that you hadn't been receiving any mail. Captain Petray responded that he would check into it.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 22.

22(A). On April 12, 2005, you signed a release so the BCDC could have access to your medical records at the Federal Correctional Institution in Waseca, Minnesota.

Agree ____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 23.

(B). On April 19, 2005, the medical release was faxed to the U.S. Department of Justice.

Agree ____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 24 26.

(C). On May 19, 2005, a fax was sent by Dr. Shelia Brandt, a forensic psychologist, asking for your medical records.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 27.

(D). A second fax was sent from Dr. Brandt on June 2, 2005.

Agree _____ Disagree _______ Without knowledge to agree or disagree ________.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 28.

23. On June 24, 2005, you were arrested at the Ft. Smith Federal Courthouse on a U.S. Marshal hold. You were arrested and transported by Deputy Skourup.

Agree _____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 29.

24. A medical questionnaire was completed and you indicated you had asthma, suffered seizures, had back problems, and wore a TENS unit.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 30.

25. On June 24, 2005, a U.S. Department of Justice notice stated that you were to wear a TENS unit for your back and that you were also on various medications. A note was also made that you had requested medical confinement. The notice was received by Deputy Daniel Skourup.

Agree ____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain.

26. On June 27, 2005, you were seen by Dr. Mullins. Dr. Mullins noted your lungs had no spasms compatible with asthma when he examined you. When Dr. Mullins attempted to do a straight leg raising test, you got mad at Dr. Mullins and started yelling at him for hurting you.

Agree ____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 37.

27. Dr. Mullins believed your complaints far exceeded the physical findings. He told you to come back when you would let him examine you properly within complaining and yelling at him.

Agree ____ Disagree ____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 37.

28. Dr. Mullins okayed your use of Ipratropim, two puffs, four times a day, Beclomye, an Albuterol inhaler, Phenyltin, Ibuprofen, and your TENS unit. Dr. Mullins noted that you were going to be at the detention center for only one week and would be observed.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 37.

29. On July 10, 2005, Deputy T. Lee reported that at 7:30 a.m. he went to the nurse's station to give you your medication and your refused the medication saying it was making you feel worse. Lee asked you to sign the medication sheet and you refused.

Agree ______ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 38.

30. On July 19, 2005, you were seen by Nurse McDonald. You were complaining of a rash on your face. You were given hydrocortisone cream.

Agree ______ Disagree ______ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 2 at page 1.

31. On August 19, 2005, you requested release of your medical records. Lt. Carter responded by asking if you wanted the records or if you wanted them sent to someone. He stated that any court information you needed was public record but your medical records required a subpoena for someone to get.

Agree ______ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 39.

32. On September 11, 2005, you asked that your cell remain unlocked until bedtime since you and the other inmates got along with one another. Lt. Carter responded that you would remain on your current housing status.

Agree ______ Disagree ______ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 40.

33(A). On November 8, 2005, you submitted a request for medical treatment because of an eye lid infection.

Agree ______ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 44.

(B). On November 9, 2005, you submitted a second request for medical treatment for an eye lid infection.

Agree ____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 45.

(C). On November 10, 2005, you were seen by Dr. Mullins.

Agree _____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 2 at page 1.

(D). Dr. Mullins examined your eye and didn't see much at all. He indicated you might have a little infection in it. He prescribed eye drops for seven days.

Agree ____ Disagree ______ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 46.

(E). Dr. Mullins also listened to your lungs. Your lungs were clear and normal. Dr. Mullins discontinued two of your inhalers for asthma and continued you on the Albuterol. He was going to recheck you in a week and if your lungs were clear take you off the Albuterol. Dr. Mullins believed medication was being abused.

Agree ____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 46.

34. On November 17, 2005, Deputy Sharp did a cell inspection and found an extra blanket, book, and pencil in your cell. You were locked down for concealing items from jail staff.

Agree ____ Disagree _____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 47.

35. On November 18, 2005, you submitted a grievance complaining that each inmate had something extra that was confiscated during the cell search. You stated you and Fox were the only two placed on ten day lock-down.

Agree ____ Disagree ____ Without knowledge to agree or disagree _______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 49.

36. In response, you were told all inmates would obey the rules of the jail.

Agree _____ Disagree _____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 49.

37. On November 17, 2005, you received a disciplinary hearing and were found guilty of concealing items from jail staff. You were given ten days lock-down and loss of privileges.

Agree ____ Disagree ____ Without knowledge to agree or disagree ______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 50.

38. You appealed the decision and it was affirmed based on your admission.

Agree ____ Disagree _____ Without knowledge to agree or disagree _______.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 50.

39. On November 17, 2005, you submitted a grievance complaining about being locked down and being discriminated against. You indicated you found the extra blanket and picked up the extra book off the floor during dinner. You stated you had been given the pencil by the day guard.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 51.

40. In response, Captain Petray stated that no one was being racist towards you and that all inmates are required to obey the rules.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 51.

41. On November 22, 2005, you refused to see Dr. Mullins.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 2 at page 1.

42. On November 23, 2005, you submitted a medical request asking for a meatless diet.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 52.

43. In response, Nurse McDonald stated a meatless diet would not provide you with enough protein.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 52.

44. On November 28, 2005, you submitted a medical request stating that the black hair on the left side of your face was disappearing. You requested that an antibiotic be prescribed.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 53.

45. In response, you were put on the list to see Dr. Mullins.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 53.

46. You refused to see Dr. Mullins on November 30, 2005.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 53.

47. On December 12, 2005, you were released for time served pursuant to the U.S. Marshals.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 1 at page 55.

48(A). You began receiving Dilantin, on February 3, 2005, the day after you became incarcerated at the BCDC, and received Dilantin the entire time you were at the BCDC.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 2.

(B). You received Ibuprofen for relief of pain.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 2.

(C). You received a variety of prescription medication including inhalers.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, please refer to defendants' exhibit 2.

49. All decisions about your medical care while you were at the BCDC were made by the jail medical personnel, Dr. Neil Mullins and Nurse Sue McDonald.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

50. You received all medical care Dr. Mullins and Nurse McDonald believed, in the exercise of their medical judgment, that you needed.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

51. Do you contend Dr. Mullins was deliberately indifferent to your serious medical needs?

Answer: Yes __________ No ___________.

If you answered yes, please state what your serious medical needs were and how Dr. Mullins exhibited deliberate indifference to your needs.

52. Do you contend Nurse McDonald was deliberately indifferent to your serious medical needs?

Answer: Yes __________ No ___________.

If you answered yes, please state what your serious medical needs were and how Nurse McDonald exhibited deliberate indifference to your needs.

53. You did not submit any grievances about not being allowed to worship or go to your Bible study group.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

54. Were you able to attend church services?

Answer: Yes __________ No ___________.

If you answered no, please explain.

55. Were you allowed to have a Bible?

Answer: Yes ___________ No ____________.

If you answered no, please state if you were allowed to have any religious materials or items.

56. You were able to worship and follow the dictates of your religion.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

57(A). You did not submit any grievances about the diet being inadequate.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

(B). You received three meals a day.

If you disagree, explain.

(C). Although you did not always like the meals, they were adequate to maintain your health.

Agree ______ Disagree ______ Without knowledge to agree or disagree ______.

If you disagree, explain.

58. You had a bunk or mattress to sleep on and a blanket.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

59. You were provided with basic hygiene items such as soap and water and were allowed to shower on a regular basis.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

60. You were provided with clean clothing on a regular basis.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

61. You were able to do exercises such as push-ups and sits-ups in your cell.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

62. You did not submit any grievances about the temperature in your cell.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

63. You did not suffer any physical injury as a result of the temperature at which your cell was maintained.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain. In explaining, describe the physical injury you suffered, the symptoms you experienced, whether you sought, or received medical care as a result of the injuries, and how long it took you to recover from the injuries.

64. You indicate you were threatened and discriminated against. Please describe in detail how each of the defendants threatened or discriminated against you.

Dr. Neil Mullins:

Nurse Sue McDonald:

Sheriff Keith Ferguson:

Major Gene Drake:

Captain Petray:

65(A). You did not submit any grievances about not being provided with clean clothing or being allowed to shower after you had a seizure.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

(B). You did not submit any medical requests asking that you be allowed to change clothes or shower after you had a seizure.

Agree ____ Disagree ____ Without knowledge to agree or disagree _____.

If you disagree, explain.

(C). With respect to your seizures, please state: (a) how frequently they occurred; (b) how long they lasted; (c) what occurred when you had a seizure; and (d) whether you were seen by the nurse or doctor following your seizures.

Answer:

66. Please describe in detail how you believe Sheriff Ferguson violated your federal constitutional rights.

Answer:

67. Please describe in detail how you believe Major Gene Drake violated your federal constitutional rights.

Answer:

68. Please describe in detail how you believe Captain Petray violated your federal constitutional rights.

Answer:

Detail below any further response you would like to make to defendants' summary judgment motion. If you have any exhibits you would like the court to consider, you may attach them to this response.

_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.

EXECUTED ON THIS _________ DAY OF ________________ 2006. DANNY T. McCARTHY

______________________________________ DANNY T. McCARTHY

McCarthy v. Mullins

Opinion

ORDER

RESPONSE TO SUMMARY JUDGMENT MOTION

McCarthy v. Mullins

McCarthy v. Mullins

Case Details

Citations

McCarthy v. Mullins

Opinion

ORDER

RESPONSE TO SUMMARY JUDGMENT MOTION

McCarthy v. Mullins

McCarthy v. Mullins

Case Details

CitationsCopy Citation

Citations