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Simeon v. Kentucky Department of Corrections

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

January 23, 2015

JOHN SIMEON, Plaintiff,



Plaintiff John Simeon, an inmate in the custody of the Kentucky Department of Corrections, is presently confined at the Kentucky State Reformatory ("KSR") in LaGrange, Kentucky. Proceeding pro se, Simeon has filed a complaint, [1] pursuant to 42 U.S.C. § 1983, against defendants, Kentucky Department of Corrections ("KDOC"); Frederick Kemen, M.D. ("Dr. Kemen"), Elaine Smith, A.P.R.N. ("Nurse Smith"), Shelli Conyers-Votaw, A.P.R.N. ("Nurse Conyers-Votaw"), Carol Cornett, A.P.R.N. ("Nurse Cornett"), Denise Black, R.N. ("Nurse Black"), and CorrectCare-Integrated Health, Inc. ("CorrectCare"), alleging violations of his Eighth Amendment rights concerning the medical care he has received for treatment of prostate cancer. Simeon has sued all defendants in both their individual and official capacities. He seeks compensatory and punitive damages from all defendants, as well as prospective injunctive relief.

At the time Simeon filed this action, he also moved for the appointment of counsel. That motion was pending when defendants removed this action and will be addressed herein. This matter is also before the Court on the defendants' motions to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim against them for which relief can be granted. [R. 3; R. 4.] Plaintiff having filed no response thereto, and the response time having expired, these motions are ripe for review.

For the reasons stated below, the defendants' dispositive motions will be granted. Plaintiff's complaint will be dismissed, and his motion for the appointment of counsel will be denied as moot.


While Simeon is currently confined at KSR, he has previously been confined at Little Sandy Correctional Complex ("LSCC") in Sandy Hook, Kentucky, and at North Point Training Center ("NTC") in Burgin, Kentucky.[2] The individual defendants worked as employees of CorrectCare at the medical departments within these institutions during the time period relevant to Simeon's claims.

This action is the second lawsuit Simeon has filed relating to the treatment of his prostate cancer. On May 29, 2013, he filed a Bivens complaint asserting Eighth Amendment claims in the United States District Court for the Western District of Kentucky against six of the same defendants named herein. See Simeon v. Ky. Dept. of Corrections, et. al., Case No. 3:13-CV-P534-S (W.D. Ky. 2013) [R. 1, therein].[3] In the present action, Simeon asserts the same Eighth Amendment claims against the same six defendants, and he also names Elaine Smith, A.P.R.N., a nurse at KSR as an additional defendant.

Simeon was diagnosed with prostate cancer while incarcerated and underwent a complete prostatectomy on March 11, 2013. [Compl., R. 1-3 at 15.] From August through October of 2013, he received thirty-five (35) adjunctive radiation therapy treatments at the James Graham Brown Cancer Center ("JGBCC") at the University of Louisville ("U of L"). [ Id., R. 1-3 at 16; Exh. 560, R. 1-3 at 109.] After completing radiation therapy, his urologist noted "no evidence of disease progression." Id. Despite this successful result, Simeon criticizes the defendants for an alleged delay in diagnosis and treatment of his prostate cancer, and he claims that defendants' failure to provide him with prescriptions for B-12 and Vitamin D supplements contributed to his cancer. [Compl., R. 1-3 at 9, 11, 13, 18.]

Simeon was transferred to LSCC on March 23, 2009. While there, he claims that Nurses Cornett and Black mistreated him. [Compl., R. 1-3 at 11.] On December 4, 2009, Nurse Cornett discontinued his vitamin prescriptions and directed him instead to purchase a "made in China drug (Vitamin) which was not approved by the FDA." Id. Simeon alleges that Nurse Cornett's actions were in "violation" of CorrectCare's policies directing the activities of its employees and which were created "with [CorrectCare's] primary concern being the welfare of its patients." Id. According to Simeon, Nurses Cornett and Black did not adequately review his medical records, which at that time would have shown that a recent PSA[4] test revealed a level of 4.1 ng/mL. Id. The allegations concerning Nurses Black and Cornett set forth in his First Action were substantially the same.[5]

On May 13, 2010, Simeon was transferred to NTC, where he encountered Nurse Conyers-Votaw. Simeon claims that she "cut out" his vitamins and failed to check his previous PSA test result. [Compl., R. 1-3 at 12.] She performed a digital rectal exam ("DRE") on October 12, 2011, but did not order another PSA test at that time. Id. Simeon asserts that Nurse Conyers-Votaw's actions were in "violation" of CorrectCare's policies directing the activities of its employees which were created "with [CorrectCare's] primary concern being the welfare of its patients." Id. Simeon's allegations of unconstitutional medical treatment by Nurse Conyers-Votaw in this Second Action are substantially the same as those against her in his First Action.[6]

In January of 2012, Simeon was transferred to the Kentucky State Penitentiary. [Compl., R. 1-3 at 13]. On May 8, 2012, he received two PSA tests under the care of Dr. Steven Hiland, which indicated significantly elevated levels of 22.3 and 23.9 ng/mL. Id. Dr. Hiland also performed a DRE and noted three nodules on Simeon's prostate, which resulted in a request that Simeon be examined by a urologist, Dr. Anna D'Amico, in Madisonville, Kentucky. Id. Dr. D'Amico performed a biopsy on August 2, 2012, which was positive for cancer, whereupon she ordered a CT scan to determine if it had metastasized. Id. A CT scan of his abdomen and pelvis was performed on September 13, 2012, and showed no evidence that the cancer had spread. Id. Dr. D'Amico recommended removal of the prostate, but she did not perform surgeries anymore as part of her practice. [ Id. at 13; "Exhibit D, p. 4, " R 1-3 at 62].

On October 15, 2012, Simeon was transferred to KSR, and he was examined by Dr. Kemen for the first time on October 23, 2012.[7] [Compl., R. 1-3 at 14.] Dr. Kemen arranged for him to see Dr. Christopher Smith, a urologist at U of L Hospital, on November 5, 2012. Id. Simeon wanted a second opinion on whether a nerve sparing procedure could be done, a procedure that Dr. Smith did not perform. Id. Dr. Smith recommended that he see Dr. Malkani Ankem for that purpose. Id. The next day, Dr. Kemen made that same request for a second opinion, and also ordered a nuclear bone scan to see if the cancer had spread. Id. That bone scan was performed on December 10, 2012. Id. Simeon complains that Dr. Kemen went "rogue" and cancelled his B-12 shots because he was upset about Simeon causing further delay to the treatment of his aggressive cancer. Id. Rather, Dr. Kemen discontinued the B-12 shots after reviewing Simeon's medical history and determining that those shots were not clinically indicated. [ See "Exhibit A, pg. 8, " R. 1-3 at 76]. Dr. Kemen did not see Simeon again after November 6, 2012, after which time he assigned Nurse Smith as his primary care provider. [ Id. at 14, 15.][8] Dr. Kemen's medical treatment was the basis of Simeon's claims against him in the First Action in which he alleged that Dr. Kemen wrongfully discontinued his B-12 shots and caused delay in his surgery. [ See First Action Compl., R. 1 at 5-6.][9]

Simeon saw Dr. Ankem on December 20, 2012. [Compl. R. 1-3 at 14.] Dr. Ankem did not know that Dr. Kemen had already arranged for a bone scan; therefore, he ordered another bone scan to see if Simeon's cancer had spread. Id. Dr. Messer, Dr. Ankem's colleague who would later perform Simeon's surgery, entered a surgery order on January 4, 2013. [ Id. at 17.] While waiting for the surgery to be approved for payment and scheduled by the KDOC, Simeon saw Nurse Smith on December 31, 2012 and February 5, 2013. [ Id. at 15, 17.] He claims that she did not know about his cancer when she saw him in December and did not have any information to offer him regarding the status of his surgery in February. Id. He acknowledges, however, that Nurse Smith was trying to get his surgery approved and scheduled on February 19, 2013. [ Id. at 10; Exh. "594-595, " R. 1-3 at 92-93.] Simeon includes Nurse Smith in his narrative about his purported delayed surgery, but it is unclear whether he is asserting a deliberate indifference claim against her based on that delay. [ Id. p. 15.][10]

Following the prostatectomy in March of 2013, Simeon claims that his radiation therapy treatments were inappropriately delayed until August of 2013. [ Id. at 17]. He claims that "this was another delay of deliberate indifference caused by the KDOC, Dr. Kemen, Elaine Smith and CorrectCare Inmate [sic], for not keeping on top of things and keeping them moving." Id. However, Simeon fails to plead any specific allegations as to how CorrectCare or Dr. Kemen caused this alleged delay of his radiation treatments. He only claims that Nurse Smith saw him on April 30, 2013, at which time she lied to him about having appointments at JGBCC. [ Id. at 17, 20; "Exhibit 585, " R. 1-3 at 108.] After asking how old Simeon was at that time (then age 65), Nurse Smith allegedly said, "That's good because I hate it when someone in their 40's has something like this." [ Id. at 20, 108.]

Simeon moved for preliminary and permanent injunctive relief in the First Action, claiming that his post-surgery radiation therapy was wrongfully delayed. [ See First Action, Mot. for Preliminary & Permanent Injunction, R. 4, therein.] Although his Motion was directed at Dr. Kemen and the KDOC, he mentioned Nurse Smith in the declaration he attached in support of that Motion. [First Action, Declaration, R. 4-1 at 2.] That declaration contained essentially the same statements regarding Nurse Smith that are alleged herein. See id. Judge Simpson ultimately denied Simeon's motion for injunctive relief prior to dismissing all of his claims in the First Action, finding that he was continuing to receive constitutional treatment after his surgery. [ See First Action, Memorandum Opinion and Order (Jan. 23, 2014), R. 12, therein.]

Despite his criticisms of Nurse Smith, Simeon had his initial oncology evaluation at the JGBCC Genitourinary Oncology Clinic on May 9, 2013, at which time the plan was to complete a staging work up. [Second Action, Exh. 616, R. 1-3 at 39.][11] Also in May, JGBCC treated Simeon with intensity-modulated radiation therapy ("IMRT") and administered a dose of androgen-deprivation therapy. Id. Nurse Smith requested a follow-up exam with Dr. Moffet, an oncologist at JGBCC, which occurred on June 27, 2013. [Exh. 18, R. 1-3 at 94.] Dr. Moffet referred Simeon to JGBCC Radiation Oncology for additional radiation treatments for his prostate cancer. Id. These treatments started on August 12, 2013, and ended on October 3, 2013. [Exh. 560, R. 1-3 at 109.]

Lastly, Simeon makes additional general allegations against Nurse Smith. He claims that she wrongfully refused to restart the vitamin B-12 shots that were discontinued by Dr. Kemen, which he believes "cause[s] the Cancer to run out of control while they wait to treat and operate." [R. 1-3 at 16]. He also asserts that she prescribed two - as opposed to the recommended one - enemas prior to each of the radiation treatments he received after his surgery, which he claims is "another deliberate indifference issue." Id.



The Court first considers Simeon's claims against CorrectCare Inmates. To state a claim under § 1983, a plaintiff must allege that (1) a right secured by the Constitution or a federal statute has been violated, and (2) the violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010). A complaint filed under § 1983 must show a causal connection between each of the named Defendants and the alleged constitutional deprivation. A § 1983 complaint must allege that specific conduct by each Defendant was the proximate cause of the constitutional injury. King v. Massarweh, 782 F.2d 825, 828-29 (9th Cir. 1986). "Congress did not intend § 1983 liability to attach where causation is absent." Deaton v. Montgomery Cnty., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To establish causation, Plaintiff must adduce "an affirmative link, [a] moving force that animated the behavior... that resulted in the constitutional violations alleged." Id. When the theory of causation is a matter of pure speculation and is nothing more than a hypothetical ...

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