United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
The Court has reviewed and considered the motion to dismiss, or in the alternative, for summary judgment [Record No. 25] filed by Defendants Dr. Jorge Vazquez Velazquez, the Regional Physician-Clinical Consultant at the United States Penitentiary ("USP")-McCreary in Pine Knot, Kentucky, and Defendant Dr. Jude Onuoha, the Clinical Director at USP-McCreary. Plaintiff Keith Shane Macleod did not file a timely response to the motion, and the Court denied his subsequent request for an extension of time to file a response. [Record Nos. 30, 34] As explained below, the Court will grant the Defendants' motion for summary judgment regarding Plaintiff Keith Shane Macleod's remaining claims.
I. PROCEDURAL HISTORY
Macleod is currently an inmate confined by the Bureau of Prisons ("BOP") in USP-Hazelton, in Bruceton Mills, West Virginia. In September 2013, while confined in USP-McCreary, Macleod filed this pro se civil rights action asserting constitutional claims under 28 U.S.C. § 1331 and the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [Record No. 1] Macleod alleged that between September 2011 and September 2013, he was confined in three different federal prisons, including USP-McCreary, and that officials at each prison were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. Macleod also alleged that the Defendants violated his right to due process of law guaranteed by the Fifth Amendment of the United States Constitution.
On April 8, 2014, the Court screened Macleod's Complaint under 28 U.S.C. § 1915A and dismissed a number of his Bivens claims against several Defendants. [Record No. 11] The Court allowed Macleod's individual capacity Bivens claims under the Eighth Amendment against Dr. Vazquez Velazquez and Dr. Jude Onuoha to proceed. [ Id. ]
On August 25, 2014, Dr. Vazquez Velazquez and Dr. Onuoha filed a motion to dismiss or, in the alternative, a motion for summary judgment regarding all remaining counts. [Record No. 25] The Defendants attached sworn Declarations documenting the medical treatment rendered to Macleod at USP-McCreary and other BOP facilities; the Declaration of Carlos Martinez, Supervisory Attorney at the BOP's Consolidated Legal Center in Lexington, Kentucky; and voluminous medical records documenting Macleod's medical treatment. [Record Nos. 25-2-25-11]
Dr. Vazquez Velazquez and Dr. Onuoha contend that: Macleod received prompt, extensive, and appropriate medical treatment at USP-McCreary for all of his medical conditions; Macleod's claims against them consist of merely conclusory allegations; neither of them were sufficiently involved in his medical treatment for any Eighth Amendment liability to attach; and, even assuming Macleod established an Eighth Amendment violation, they are protected by qualified immunity.
In early October 2014, Macleod filed a motion requesting an extension of time to respond to the motion to dismiss, asserting that his confinement in the Segregated Housing Unit ("SHU") of USP-Hazelton precluded access to his legal materials and to the prison law library. [Record No. 27] However, the Defendants submitted sworn statements and other documentation directly contradicted Macleod's claimed restrictions. [Record Nos. 29, 33] After reviewing these materials, the Court found that Macleod had misrepresented material facts regarding his request for an extension of time and denied his motion for an extension and his motion to reconsider the Court's order denying his extension. [Record Nos. 30, 34]
II. MACLEOD'S MEDICAL HISTORY AND TREATMENT
A. Back and Neck Condition
In June 2011, while confined in USP-Coleman in Coleman, Florida, Macleod complained of severe back and neck pain and on June 11, 2011, and was evaluated utilizing a MRI test. [Record No. 25-4, p. 2, § 3; Record No. 25-2] On August 25, 2011, Macleod was seen by a neurosurgeon to discuss surgical options. [Record No. 25-4, pp. 3-4] The MRI of Macleod's cervical and lumbar spine indicated severe spinal stenosis, cord and exiting leftsided nerve root compression at C5-6 and C6-7 secondary to developmentally shortened pedicles with superimposed left paracentral disc protrusions with no intramedullary edema. [Record No. 25-4, pp. 3-4] The USP-Coleman medical staff approved a surgical procedure to address Macleod's back and neck condition and he was provided with prescription medicine for his symptoms. [ Id., p. 4] On October 9, 2011, a "shakedown" of Macleod's cell revealed 45 tablets of Gabapentin that Macleod had not taken as directed. [Record No. 25-4, p. 5] Macleod claimed that while he was confined in the SHU of USP-Coleman, three prison officials talked to him and were aware that he had been scheduled to undergo surgery, but that soon thereafter they transferred him to the USP-Victorville in Victorville, California.
Upon arriving at USP-Victorville in 2012, Macleod immediately complained to the medical staff about his pain and informed the medical staff that he had been approved to undergo surgery. Macleod was evaluated further and, on March 15, 2012, was again approved for a surgical procedure. [ Id., p. 6] However, before Macleod's surgery, he was transferred to the Federal Transfer Center ("FTC")-Oklahoma. [Record No. 25-4, p. 7] Macleod claimed that although USP-Victorville officials knew that he was scheduled to undergo surgery, they instead transferred him, or allowed him to be transferred, to FTC-Oklahoma demonstrating deliberate indifference to his medical needs.
On August 7, 2012, just days before he was transferred to USP-McCreary, officials at FTC-Oklahoma discovered that Macleod was rectally hoarding his narcotic pain medication. [Record Nos. 25-4, p. 8; 25-2, ¶ 7] Macleod was found to have two balloons containing a total of over 100 tablets of narcotic medication stored in his rectum. [ Id. ] Because Macleod had been improperly "cheeking" (hoarding or hiding) his pain medication, his narcotic medication was stopped and a medical alert was issued. [Record No. 25-4, pp. 8, 105] Macleod was prescribed clonidine for withdrawal. [ Id. ] On August 8, 2012, Macleod was counseled on the side effects and withdrawal symptoms of clonidine after he complained of fatigue and weakness. [ Id., pp. 8, 107-08]
When Macleod was transferred to USP-McCreary on or about August 9, 2012, his medical records were reviewed, he was again examined, and his medications were renewed pending a chronic care clinic appointment. [ Id. ] On August 15, 2012, a Chronic Care encounter was performed. [Record No. 25-4, pp. 112-13] Macleod reported several mental health issues, chronic neck and back pain, and an endo/lipid issue. [ Id. ] The prison medical staff diagnosed three problems: low back pain, brachia neuritis or radiculitis (inflammation of the nerve root), and mental health problems. [ Id., pp. 8-9] Macleod was prescribed Amitriptyline, Gabapentin, and Gemfibrozil medications. [ Id., p. 9] Following review of the neurosurgery consult on August 25, 2011, staff noted that a neurosurgery consultation was needed because it had been approved at a previous institution. [ Id., p. 9] Between late August 2012 and late November 2012, the USP-McCreary medical staff examined, treated, and evaluated Macleod numerous times in response to his complaints of back and neck pain. [ Id., pp. 9-12] The medical staff requested a new MRI test and another neurological consultation. [ Id., p. 12]
On November 28, 2012, a Chronic Care encounter was performed by Dr. Vazquez Velazquez at Health Services, from which it was again determined that Macleod suffered from low back pain, lumbago, and brachia neuritis or radiculitis. [ Id. ] On December 4, 2012, a consult with a local neurosurgeon was approved and scheduled. On December 6, 2012, Dr. Vazquez Velazquez consulted with Macleod about his neck and back pain, noting that a neurology evaluation was pending at that time. [ Id. ] In late December 2012, Macleod requested narcotic pain medication, but was told that no narcotics had been ordered and that he would be re-evaluated at an upcoming chronic care appointment. [ Id., p. 13] On January 14, 2013, Macleod again requested narcotic pain medication, but was told that it was not warranted. [ Id. ]
On January 8, 2013, Macleod was seen at the Lake Cumberland Neurological Clinic for his back and neck complaints. [ Id. ] The neurologist reviewed the available diagnostic tests but requested updated MRIs before recommending any treatment. [ Id. ] The prior MRI results showed that Macleod had degenerative disc disease at the L4-5 and L5-S1. [Record No. 25-4, p. 13]
On January 16, 2013, Dr. Onuoha performed a consultation encounter at Health Services, and requested a repeat MRI of his cervical and lumber spine to determine if the cervical surgery, which had previously been ordered at another prison, was still warranted. [Record No. 25-4, p. 15; 25-8, p. 3] On February 20, 2013, Macleod was seen lifting weights in the prison supply closet, using a homemade weight-stick with 5-gallon water jugs hanging from each end. [Record No. 25-4, p. 17; Record No. 25-5, p. 44] The following day, Macleod requested narcotic pain medication for pain. [Record No. 25-4, p. 17] On January 23, 2013, the prison ...