United States District Court, E.D. Kentucky, Southern Division, at London
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
This matter is before the Court upon the motion of the defendants, Lieutenant Paul Boulet, Nurse Practitioner Karen Bennett-Baker, Unit Manager Farrah Sliver, and Senior Officer Brandon Kidd, to dismiss the complaint, or in the alternative for summary judgment. [R. 46] Plaintiff Nathan Smith has responded to the motion [R. 54] to which the United States has replied. [R. 57] This matter is therefore ripe for adjudication.
Nathan Smith is a prisoner formerly incarcerated at the United States Penitentiary - McCreary in Pine Knot, Kentucky. Proceeding without an attorney, Smith filed a civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA"). In his original and amended complaints, Smith alleges that he has been diagnosed with epilepsy and somnambulism (or "sleepwalking"), and that as a result of his conditions, during his sleep he experiences epileptic seizures, during some of which he has assaulted, bitten, ended up in the same bed with, and touched various cellmates. Smith contends that his own conduct places him at risk of being assaulted by other inmates, but that the defendants have refused to assign him to a one-man cell. [R. 7, pp. 2-3] Smith also claims that medical staff provided inadequate medical treatment for a broken thumb, and that prison officers took affirmative steps to place him at risk from assault by other inmates.
First, Smith alleges that shortly after his transfer to USP-McCreary, in March 2012 nurse Bennett-Baker purposely interfered with his efforts to be assigned to a one-man cell by creating medical records which falsely stated that Smith had not been diagnosed with somnambulism or epilepsy. Smith also claims that she stopped his prescriptions for mirtazapine and lamotrigine (an anti-seizure medication). [R. 1, p. 2; R. 7, pp. 3-4; R. 44, pp. 1-2] Smith contends generally that defendants acted improperly by failing to assign him to a single cell in light of his activities while sleepwalking. [R. 7, p. 3]
Second, Smith alleges that while incarcerated at the federal penitentiary in Coleman, Florida, he was placed in restraints and kept in his cell for nine days between December 7 and 16, 2011, because he had refused to accept a cellmate. On December 15, 2011, Smith apparently fell from his bunk, and injured his right thumb in the process. When an x-ray showed loose bodies at the first CMC joint, his thumb was placed in a splint and pain medication was prescribed. [R. 47-4, pp. 98-102] In light of the x-ray results, Smith's primary care provider requested that he be seen by an orthopedic specialist [R. 47-4, pp. 104], but he was transferred to USP-McCreary before the consultation occurred.
Upon his arrival at USP-McCreary, a health assessment was conducted on February 24, 2012. At this time, nurse practitioner Bennett-Baker renewed his prescription for lamotrigine. On March 11, 2012, she deferred the request for an orthopedic consult for Smith's thumb injury until a new x-ray could be taken to assess its current condition. [R. 47-5, pp. 107-110] A subsequent x-ray of his thumb indicated that it was negative for broken bones and was consistent with the prior x-rays, presumably indicating that loose bodies at the first CMC joint remained discernible. [R. 47-5, pp. 133-136] In her July 6, 2012, encounter notes, Bennett-Baker stated that Smith had received extensive medical treatment for his thumb injury, including conservative therapy, repeat x-rays, splints, pain medications, and medical passes excusing him from work. [R. 47-5, p. 137] Smith nonetheless claims that Bennett-Baker failed to provide adequate treatment for his broken right thumb. [R. 1, p. 2; R. 7, pp. 3-4; R. 44, pp. 1-2]
Third, on March 29, 2012, Smith allegedly "touched inmate Pipkin in his sleep." Smith claims that Lieutenant Boulet then told Pipkin and another inmate that they should "beat [Smith's] ass." [R. 44, p. 4] Smith further alleges that Boulet has repeatedly made verbally abusive comments to him. Id. Smith states that on May 8, 2012, BOP officers were about to place him in restraints for refusing to accept a cellmate. When Smith told the officers that an outside neurologist had diagnosed him with epilepsy and a sleep disorder, Smith alleges that Unit Manager Sliver contradicted that claim, stating that "the outside doctor said there was nothing wrong with you." As a result, the officers placed Smith in restraints. [R. 1, p. 3; R. 44, pp. 2-3]
Fourth, Smith alleges that on December 27, 2012, Lt. Boulet ordered Officer Kidd to put Smith in a cell with inmate James Jordan, whom Smith states is mentally ill. Smith alleges that while in the cell together Jordan forced him to commit sexual acts. The two inmates were later separated and interviewed regarding these events. Lt. Boulet then charged Smith with taking Jordan hostage. Smith alleges that he agreed to sign a statement that Jordan had not sexually assaulted him only under duress. [R. 7, pp. 3-4]
On March 28, 2012, Smith filed a formal grievance with the warden, Administrative Remedy ID 684499-F1, regarding a number of complaints, including his placement in restraints in December 2011at USP-Coleman; the cancellation by Dr. Vazquez and nurse Bennett-Baker of his prescription for lamotrigine; the lack of proper medical care or corrective surgery for the injury to his thumb; the disregard of his diagnosis for epilepsy; and his recurring assignment to two-man cells. Smith mentioned that he was then celled with inmate Pipkin. The warden denied that grievance on April 25, 2012. [R. 46-6, pp. 1-2] The Mid-Atlantic Regional Office affirmed that denial on appeal on May 22, 2012, as did the Central Office on February 5, 2013. Id. at pp. 3-6. This is the only grievance Smith filed regarding the events described in the complaint.
In their motion for summary judgment, the defendants assert that Smith's complaint essentially asserts four distinct claims: (1) that because he walks in his sleep, Smith should not be housed with a cellmate for the safety of himself and other inmates; (2) the injury to his thumb was not properly treated; (3) the defendants failed to protect him from the sexual assault that inmate Jordan committed upon him; and (4) the defendants falsely charged him with taking inmate Jordan hostage. [R. 46-1, p. 2] Defendants Sliver, Boulet, and Kidd contend that they are entitled to summary judgment because the sole grievance that Smith did file regarding the subject matter of his complaint did not relate in any way to his allegations regarding their conduct, and thus his claims against them are unexhausted. [R. 46-1, pp. 7-11] They also contend, in the alternative, that Smith's allegations - that they verbally harassed him and failed to protect him - fail to state a claim because he suffered no physical injury as a result of their alleged actions. [R. 46-1, pp. 17-25] For her part, nurse Bennett-Baker contends that Smith was provided ample medical treatment, for both the injury to his thumb and for his somnambulism, and any disagreement regarding the adequacy or appropriateness of that treatment fails to state a claim of deliberate indifference under the Eighth Amendment. [R. 46-1, pp. 13-16]
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 she is entitled to a judgment as a matter of law, she is entitled to summary judgment. Kand Medical, Inc. v. Freund Medical Products, Inc., 963 F.2d 125, 127 (6th Cir. 1992).
The moving party does not need her own evidence to support this assertion, but need only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but must point to evidence of record in affidavits, depositions, and written discovery which demonstrates that a factual question remains for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th Cir. 2003); United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) ("A trial court is not required ...