by Matt Clarke

On January 10, 2022, the U.S. Court of Appeals for the Eighth Circuit held that an Arkansas prisoner had not failed to state an actionable claim against prison medical officials when he accused them of not maintaining his bilateral hearing aids. The decision reversed a ruling by a lower court, though affirming a companion ruling on the prisoner’s other claim that prison officials were deliberately indifferent to his serious medical needs when they failed to diagnose and treat an alleged bacterial infection.

Arkansas Department of Corrections (DOC) prisoner Christopher De Rossitte filed suit pro se in federal court for the Western District of Arkansas in 2017, accusing DOC and its privately contracted health care provider, Correct Care Solutions (CCS)—now known as Wellpath—of inadequate medical care, in violation of his rights under the Eighth Amendment and the Americans with Disabilities Act, 42 U.S.C. ch. 126, §12101 et seq., as well as making state-law medical malpractice claims.

Prior to that, De Rossitte filed multiple grievances alleging CCS staff failed to diagnose and treat a “likely” bacterial infection, his complaint recalled, listing symptoms that included pain in his face and head, headaches, excessive thirst, difficulty swallowing, boils and bumps on his face, pain and irritation in his eyes, blurred and dimmed vision, inflammation of his eyelids, earaches, muscle pain and weakness, shortness of breath, sinus issues, cough, edema on his arms, rashes, urine irregularities, blood test abnormalities, and nausea.

But instead of testing him for infection, CCS Dr. Nannette Vowell and Nurse Melissa Gifford allegedly retaliated against him for filing the grievances by delaying and restricting his access to medical providers and prescription refills.

De Rossitte also claimed that CCS refused to provide him a functioning hearing aid and replacement batteries, alleging that CCS staff lost his hearing aid while trying to repair it and refused to replace it, leaving him for over six months with only one hearing aid, which was also broken and malfunctioning. When he requested replacement batteries, he had to wait “days or weeks,” and he estimated he had no functioning hearing aid at all for over three months.

After lengthy litigation, the district court granted CCS summary judgment in February 2020. De Rossitte appealed.

Reviewing the dismissal de novo, the Eighth Circuit held that De Rossitte failed to establish deliberate indifference on his bacterial infection claim, noting that “[m]ost of his symptoms, by his own admission, are likely ‘nothing serious’” and that “neither Vowell nor Campbell disregarded [them].” Rather, the Court continued, they “ensured he was examined regularly by many providers for his complaints, gave him nortriptyline to treat his insomnia and pain, and enrolled him in chronic care clinics where his blood was regularly tested.”

However, pivoting to De Rossitte’s hearing loss, the Court said it is “objectively serious: a physician [had diagnosed him] with sensorial hearing loss requiring treatment with bilateral hearing aids.” That “severe hearing loss may be a serious medical need” to which Defendants could be unconstitutionally deliberately indifferent, the Court said, citing other circuits’ decisions: Gilmore v. Hodges, 738 F.3d 266 (11th Cir. 2013); Cooper v. Johnson, 255 F.App’x 891 (5th Cir. 2007); Wheeler v. Butler, 209 F.App’x 14 (2d Cir. 2006); and Large v. Wash. Cnty. Det. Ctr ., 915 F.2d 1564 (4th Cir. 1990).

“If a jury credited De Rossitte’s allegations, it could infer Vowell and Gifford were deliberately indifferent to his hearing needs,” the Court concluded. So the district court should have made all reasonable inferences of fact in Plaintiff’s favor, as laid out in Scott v. Harris, 550 U.S. 372 (2007), and it should not have dismissed the hearing claim.

De Rossitte’s retaliation claim failed, however, because he didn’t establish a retaliatory motive. Thus the district court’s judgment was reversed with respect to the hearing claim and affirmed in all other aspects. The hearing claim was remanded, along with instructions to reinstate the state-law medical malpractice claim. On appeal, DeRossitte was represented by Little Rock attorneys Laura E. Cox and Gary D. Marts, Jr., of Wright, Lindsey & Jennings, LLP. See: De Rossitte v. Correct Care Sols., LLC, 22 F.4th 796 (8th Cir. 2022).

The case has now returned to the district court, which appointed Cox to serve as counsel for Plaintiff in settlement proceedings. PLN will report the outcome of those when concluded. See: De Rossitte v. Vowell, USDC (W.D. Ark.), Case No. 6:17-cv-06043. 

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