United States District Court, D. North Dakota, Southwestern Division
REPORT AND RECOMMENDATION
CHARLES S. MILLER, Jr., Magistrate Judge.
Before the court is a Motion for Summary Judgment filed by the defendant, Dr. John Hagan, on June 6, 2014. Judge Hovland has referred the motion to the undersigned for preliminary consideration. For the reasons set forth below, the undersigned recommends that the motion be granted.
Willoughby, an inmate at the North Dakota State Penitentiary ("NDSP"), has suffered from persistent skin rashes, lesions, and/or sores since 2003. He was treated at the NDSP by infirmary staff from 2003 to 2010. In 2010, he was referred to two Bismarck dermatologists, Drs. Mark Ebertz and John Luger, for further examination and treatment.
On June 27, 2011, Willoughby was admitted to the NDSP's infirmary for "decolonization" after he tested positive for MRSA. According Dr. Hagan, Willoughby was "decolonized" within one weeks time and has been MRSA-free ever since.
Although his MRSA infection had apparently been eradicated, Willoughby continued to develop sores on his skin. On September 4, 2012, he returned to Dr. Luger, whose assessment was that his sores were possibly "factitial versus drug, " meaning they were likely induced by deliberate human action.
On November 2, 2012, Willoughby presented to Dr. Hagan with another sore. A biopsy of the sore was taken at the University of North Dakota Center for Family Medicine in Bismarck, North Dakota, and sent to the University of Colorado for analysis. Upon completion of their analysis, medical professionals at the University of Colorado reported back that they were unable to identify any medical cause for the sore.
Dissatisfied with his various treatments and convinced that he was once again infected with MRSA, Willoughby initiated the above-entitled action in April 2013 against Dr. Hagan in his official and individual capacities, asserting:
Since I've been incarcerated at NDSP in 2001 have been given so may differant antibiotics that I contracted the desease MRSA which caused these dark gross sores and scars on my body from my neck to my toes, In 2011 I was housed in the Infirmary for a week and given antibiotics and supposedly the MRSA was cured, but the sores and boils continued, they have gotten so bad that it makes me sick to my stomach just looking in a mirror, I have so may scars and sores on my body, that I even have troubles sleeping at night because of the pain that I suffer all the time. All the sores that I get all start with a pimple looking or boil looking thing, that turns into a blister that turns into a sore that I have to work on an all day basis to keep them in the healing, these sores are there for about 4 to 8 weeks before they heal completely, these sores are very painful, and look very bad, and soemtimes they get infected, then I have to work double hard to try and get them to heal. I have been accused of causing these sores personally, which is impossible, I have done nothing by try to keep these sores from getting anymore infected than they all start out to be, and in the end, I'm stuck with a gross nasty looking scars that I will have to hide from everyone including by own family, and if it were a case of self harm, how am I doing it??? I'm not.
Dr. John Hagan acted with Deliberate Indifference toward myself Art Willoughby, Whereby inflicting cruel and unusual punishment in violation of the 8th. amendment of the U.S. Constitution.
I have asked on numerious occasions to be seen by a diabetic specialist and a real would specialist, to which, I've only been sent to see a dermatoligest, I beleave that I have seen three or four dermataligests now an none of them are able to give a true or even real diagnosis, they all say the same thing, No one knows what this desease is and they can't give a real true diagnosis. accpet that it looks like classic MRSA.
(Docket No. 7) (errors in original). In his prayer for relief he requested $1 million in damages and "the true medical cure, which is to be hospitalized for the two weeks and given the IV antibiotics that is supposed to be given to cure the MRSA virease (sic)." (Id.).
On June 6, 2014, Dr. Hagan filed a Motion for Summary Judgment, asserting that he had qualified immunity from suit and that Willoughby's claims otherwise lacked merit. On August 12, 2014, Willoughby filed what the court construes as his response to Dr. Hagan's ...