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Warden v. Terris

United States District Court, E.D. Kentucky, Central Division, Lexington

March 19, 2014

JASON TERRIS, et al., Defendants.


KAREN K. CALDWELL, Chief District Judge.

This matter is before the Court upon the motion of the defendants, Jason Terris, Angela Carpenter, Dr. Francisco Rios and Dr. Michael Growse, to dismiss the complaint, or in the alternative, for summary judgment. [R. 59] Plaintiff Herbert G. Warden has filed his response to the motion [R. 61] and the defendants have filed their reply. [R. 62] The matter is therefore ripe for decision.


Plaintiff Herbert Warden is a former inmate who was previously incarcerated at the Federal Medical Center in Lexington, Kentucky. Following his conviction on federal drug trafficking charges in July 2009, Warden self-surrendered into federal custody at FMC-Lexington on September 8, 2009, where he remained in custody until his transfer to home incarceration on November 1, 2012. [R. 59-1, p. 1]

When he arrived at FMC-Lexington, Warden suffered from a plethora of medical conditions, including diabetes, chronic airway obstruction, rotator cuff problems, retinal melanoma, coronary atherosclerosis, obesity, hypertension, gastroesophageal reflux disease, sleep apnea, lumbar spinal stenosis, neck pain, and diabetic retinopathy. Id. at p. 1, n.3. Warden also reported that he had been diagnosed with dementia incident to Alzheimer's disease, and had in his possession the medications Aricept and Namenda. A June 18, 2008, letter from Dr. Craig Woodward indicated that he had treated Warden for related cognitive impairment and diabetic peripheral neuropathy since September 2003, and had treated Warden's dementia successfully with Aricept. [R. 1, Exh. D at 1]

Upon his arrival, Dr. Francisco Rios evaluated Warden and requested that prescriptions for generic versions of Aricept and Namenda be approved. Dr. Michael Growse initially denied the request for a long-term prescription, but on September 25, 2009, approved a request for a six-month prescription to allow time to develop a long-term treatment plan. [R. 59-1, pp. 3-4] On October 20, 2009, Dr. Franca Cambi, M.D., Ph.D., a doctor and professor of neurology at the University of Kentucky Department of Neurology, conducted a telemedicine evaluation of Warden. By letter dated October 21, 2009, Dr. Cambi recommended the continued use of Aricept and Namenda to treat Warden's dementia. [R. 1 Exh. A at 1, Exh. C at 2]

On March 23, 2010, the six-month prescription for these medications expired. Two days later, Dr. Growse denied a request to extend the prescriptions because a long-term treatment plan had still not been developed. [R. 59-1, p. 4] Shortly thereafter, on April 13, 2010, Warden was re-evaluated by Dr. Cambi, who again indicated that Warden would benefit from the resumption of both medications. [R. 1 Exh. A at 1, 2] However, on May 27, 2010, Dr. Growse informally expressed his disapproval of resuming the medicines to Warden's then-treating BOP physician, noting that Aricept and Namenda were indicated to delay the onset of dementia for six months, and while Warden had been diagnosed five years prior, he was showing no clinical signs of dementia. [R. 59-1, pp. 5-6]

On June 24, 2010, Warden filed a formal grievance with the warden challenging the discontinuation of his prescriptions for Aricept and Namenda. [R. 59-4, pp. 4-5] Warden Deborah Hickey denied that grievance on July 7, 2010, noting that the because "long-term uses of these medications produce little clinical benefit in the treatment of Alzheimer's... the Clinical Director has determined that the risk benefit ratio does not support continued prescribing of this medication." Id. at p. 6.

On July 9, 2010, Dr. Rios submitted a request to renew Warden's prescriptions in light of Dr. Cambi's April 13, 2010, evaluation. Dr. Rios's request noted that Warden's initial six-month prescription ending on March 13, 2010, had been terminated because a long-term treatment plan had not been established at that point, but Warden had since been re-evaluated by the neurologist. [R. 59-26, p. 1] The Logistics Pharmacist at the BOP's Central Office approved that request on July 13, 2010. Id. at p. 2. Warden remained on prescriptions for Aricept and Namenda throughout the remainder of his stay at FMC-Lexington until his transfer to home confinement on November 1, 2012. [R. 59-4, p. 6]

Although his prescriptions had been renewed, on July 28, 2010, Warden appealed Warden Hickey's denial of his grievance by filing a Form BP-230 appeal to the Mid-Atlantic Regional Office. On October 25, 2010, the Regional Office denied the appeal, noting that Warden's prescriptions had been resumed for six-month periods on July 24, 2010, and again on September 27, 2010. The Regional Office's letter denying his appeal advised Warden that he should appeal to the Central Office if he was dissatisfied with its decision. Warden took no further steps to appeal from the denial of his grievance. [R. 1, p. 8]

Warden filed his complaint in this action on January 26, 2011, under the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Warden contended that the discontinuation of his medicines in Spring 2010 constituted deliberate indifference to his serious medical needs in violation of the Eighth Amendment, and sought compensatory and punitive damages. [R. 1]


In their motion to dismiss the complaint, or in the alternative for summary judgment, the defendants contend that Warden failed to properly exhaust his administrative remedies [R. 59-1, pp. 8-11]; cannot demonstrate deliberate indifference to his medical needs [R. 59-1, pp. 11-15]; failed to make specific factual allegations to establish scienter [R. 59-1, pp. 15-16]; may not predicate liability against former associate warden Terris based upon his supervisory role [R. 59-1, pp. 16-17]; and cannot overcome the defendants' entitlement to qualified immunity. [R. 59-1, pp. 17-19] Warden has responded to each of these arguments in turn. [R. 61]

The Court must treat the defendants' motion to dismiss the complaint as a motion for summary judgment under Rule 56 because they have attached and relied upon documents and declarations extrinsic to the pleadings in support of it. Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). A motion under Rule 56 challenges the viability of the another party's claim by asserting that at least one essential element of that claim is not supported by legally-sufficient evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). If the moving party demonstrates that there is no genuine dispute as to any material fact and that ...

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