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Rose v. Crall

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

July 14, 2015

JOHN ROSE, Plaintiff.
DOCTOR DOUG CRALL, M.D., et al., Defendants.


KAREN K. CALDWELL, Chief District Judge.

John Rose ("Rose") is in custody of the Kentucky Department of Corrections ("KDOC") and is presently confined in the Northpoint Training Center ("NTC") in Burgin, Kentucky. Proceeding pro se, Rose has filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights to medical care and treatment. [R. 1]. Specifically, Rose claims that the Defendants[1] have been deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment of the United States Constitution, by failing to provide adequate medical care and treatment to him relative to the broken foot he sustained in January of 2014.

Rose has also moved to amend and correct his complaint [R. 7], advising the Court that he inadvertently named Tammy Wilson LPN, NTC, as a defendant when he should have named Tammy Pittman, LPN, NTC, as a defendant. Essentially, Rose wants to substitute Tammy Pittman for Tammy Wilson as a named defendant and does not want to assert a claim against Tammy Wilson. Since no summons has issued to any of the named defendants and since Rose is free to amend his complaint once as a matter of right, pursuant to Fed.R.Civ.P. 15(a), Rose's motion to amend/correct the complaint will be granted. In screening Rose's complaint, the Court will consider Tammy Pittman, LPN, NTC, to be a named defendant instead of Tammy Wilson, LPN, NTC.

The Court conducts a preliminary review of Rose's complaint because he has been granted permission to proceed in forma pauperis and because he asserts claims against government officials. 28 U.S.C. §§ 1915(e) (2), 1915A. A district court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Rose's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts his factual allegations as true and liberally construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).


Rose states that on January 31, 2014, while he was on his way to the gym, he slipped (and presumably fell) on ice and hurt his foot. He proceeded to the gym and ran on the treadmill. [R. 1, p. 2]. Two days later, on February 2, 2014, Rose filed a Sick Call Request with the Medical Department, stating: "I hurt my right foot somehow. Will explain on sick call." [R. 1-1, Page ID# 15]. Rose explained that he had tried to give the foot time to heal but that it seemed to be getting worse. Id. Rose was seen at sick call by a nurse and was given an elastic wrap for his injured foot, but his foot was not x-rayed.

The condition of Rose's foot did not improve, and he continued to experience pain in the foot. He returned to sick call repeatedly, as well as making visits to the Nurse Practitioner, complaining about his foot pain. Rose states that he filed additional Sick Call Requests to the Medical Department concerning his injured foot and the associated pain on February 20, April 27, May 1, and May 5, 2014, and that he repeatedly requested that xrays be taken of his injured foot, but that no x-rays were taken at that time. Rose was apparently examined only by nurses during these times; he states that he was never examined by a physician. Finally, when Rose returned to sick call again on May 15, 2014, it was agreed that his foot should be x-rayed. Rose's foot was x-rayed, some three and onehalf months after he injured his foot. The x-rays revealed that his foot had been broken and that it had healed incorrectly, resulting in increased pain in the foot. Rose states that the x-rays also indicated bone spurs in the foot, that there is some type of unknown mass on the top of his foot, and that he has been advised that the mass could be a blood clot, an infection, or bone fragments. [R. 1, page 4].

Rose claims that the defendants have been "deliberately indifferent" to his medical needs regarding the care and treatment of his broken foot, as evidenced by the fact that no x-rays were taken of his foot for three and one-half months after the foot was broken, and that due to this lack of care and treatment, his broken foot healed improperly, resulting in continuing foot pain. Rose requests that his foot be surgically repaired in order to stop the pain and to restore "proper walking." [R. 1, page 14]. Rose also requests unspecified compensatory damages against the Defendants for ignoring his medical needs and causing him unnecessary pain and suffering. Id.

On May 23, 2014, Rose filed an Inmate Grievance (No. 014-289), summarizing the history of his foot injury and treatment, and requesting that he be scheduled to see a podiatrist as soon as possible. [R. 1-1, Page ID## 21-22]. NTC officials responded that his request was non-grievable. [R. 1-1, Page ID# 23]. Rose appealed the denial of his grievance to no avail. Thus, it appears that prior to filing this action, Rose exhausted the administrative remedies available to him.


A. Constitutional violation

To assert a viable claim under § 1983, a plaintiff must establish that his constitutional rights were violated by one acting color of law. Although Rose does not expressly state which constitutional right is at issue, by claiming that the defendants have been "deliberately indifferent" to his serious medical needs, he is asserting an Eighth Amendment claim.

B. Claims against the defendants in their Official Capacity

Rose does not specify whether he is suing the defendants in their official capacity as government employees or in their individual capacity. When a plaintiff does not allege the capacity in which he is suing the defendants, it is construed that they are being sued in their official capacity. Wells v. Brown, 891 F.2d 591, 593-94 (6th Cir. 1989). If the plaintiff seeks only monetary relief, the defendants are not subject to suit for money damages in their official capacity because government officials sued for damages in their official capacity are absolutely immune from liability under the Eleventh Amendment to the United States Constitution. Will v. Mich. Dep't. of State Police, 491 U.S. 58, 70-71 (1989); Kentucky v. Graham, 473 U.S. 159, 169(1985). A state, its agencies, and its officials sued in their official capacities for monetary damages are not considered persons for purposes of § 1983 or a constitutional claim. Id .; see also Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).

Thus, the official-capacity claims for monetary damages against all named defendants will be dismissed for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e) (2) (B) (ii). As to Rose's claim for injunctive relief, viz., surgery to correct his improperly healed broken right foot, that claim is permissible against the defendants in their "official capacity."

C. Claims against Defendants in their Individual Capacities

1. Dr. Richard Rhee

Rose identifies defendant Richard Rhee, M.D., as an x-ray specialist employed by EMDS Lexington, 2030 Ader Road, Jeanette, Pennsylvania. It is unclear from Rose's complaint whether Dr. Rose is the medical professional who x-rayed Rose's foot or whether he simply reviewed and interpreted the results of the x-ray of Rose's foot that was taken by someone else. Regardless, Rose has no viable claim against Dr. Rhee, since Dr. Rhee was not a physician in the medical department at NTC and was in no position to provide medical care and treatment to Rose for his broken foot. Dr. Rhee simply read the x-ray that was taken in May of 2014. In essence, Dr. Rhee's involvement with Rose and his broken foot occurred after the fact, i.e. after the alleged "deliberate indifference" to Rose's serious medical needs regarding the care and treatment of his broken foot had already occurred in the interim between January 2014, when the foot was allegedly broken, and May of 2014, when the foot was x-rayed.

Consequently, Rose has failed to state a constitutional claim against Dr. Rhee for which relief can be granted. Dr. Rhee will ...

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