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King v. Tangilag

United States District Court, W.D. Kentucky, Paducah Division

June 1, 2017



          Thomas B. Russell, Senior Judge

         Joshua Lane King, a state inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action against two Kentucky Department of Corrections personnel and two Kentucky State Penitentiary personnel for allegedly violating his rights under the Eighth Amendment. Upon initial review under 28 U.S.C. § 1915A, the Court determined that King's claim for injunctive relief could proceed against these four Defendants[1] in their official and individual capacities and that his claim for monetary damages could proceed against the four Defendants only in their individual capacities. [DN 7.] All Defendants have now moved for summary judgment as to those claims. Because there is no genuine dispute of material fact, and Defendants are entitled to judgment as a matter of law, their Motions for Summary Judgment, [DN 45; DN 50], are GRANTED.


         At the time the events giving rise to King's claims began, King was incarcerated at the Kentucky State Penitentiary (KSP). [See DN 1 (Complaint).] On March 31, 2015, during an annual physical examination, King told Dr. Shastine Tangilag that he had a “hernia” on his abdomen that was getting larger. [DN 47 at 3 (Kentucky Department of Corrections Medical Records).] Dr. Tangilag wrote in King's records that he had a “movable, nontender, solid mass on the abdomen measuring [about] 3 inches above” the navel. [Id. at 4.] Dr. Tangilag ordered an ultrasound, which was performed the same day. [Id.] The ultrasound report, dated April 1, 2015, reflects that the mass was “a 3.1 by 1.3 by 3.1 centimeters solid heterogeneous cystic area” and stated that “[m]alignancy cannot entirely be excluded. The need for CT or MRI should be determined clinically.” [Id. at 6.] At his next appointment on May 14, 2015, King again saw Dr. Tangilag. [Id. at 7-9.] King complained of abdominal pain in “the epigastric area, ” but indicated that “[h]e was in a fight in [M]arch and was punching somebody. He thought he must have pulled a muscle.” [Id. at 7.] Dr. Tangilag reported that the sebaceous mass cyst on King's abdomen was “non tender, ” and noted that there was no “weight loss, nausea, abdominal bloating, [or] rectal bleeding.” [Id. at 7-8.] Dr. Tangilag prescribed Tylenol as needed for pain. [Id. at 8.]

         On May 28, 2015, King filed an Inmate Grievance related to “Quality of Health Care.” [Id. at 21-22.] King stated that he was in severe pain and requested further testing to determine whether the sebaceous cyst on his abdomen was malignant, as the ultrasound report concluded that malignancy could not be definitively ruled out. [Id. at 22.] King also requested surgery to have “this very painful cyst removed.” [Id.]

         That same day, King saw Karen Vickery, an Advanced Practice Registered Nurse (APRN) at KSP. [Id. at 10.] King reported abdominal “pain related to [the] cyst near [his] epigastric area.” [Id.] King again discussed the fight he was in in March and told APRN Vickery that he believed he may have pulled a muscle in his stomach as a result. [Id.] King reported that he was not taking the Tylenol as previously prescribed by Dr. Tangilag because it was not working. [Id.] APRN Vickery changed King's pain medication to Ibuprofen and wrote that she would “cont[inue] to monitor” him. [Id.]

         The Kentucky Department of Corrections (KDOC) Health Services Administrator, Cookie Crews, responded to King's grievance in a letter dated June 5, 2015. [Id. at 15.] She wrote that King's records indicated that he was seen by APRN Vickery on May 28, that his medication was changed, and that he would continue to be monitored. [Id.] She further instructed King that, “[s]hould [he] not feel relief[, ] please contact this office.” [Id.]

         On June 17, 2015, King was treated by Jill Shelton, a Registered Nurse (RN) at KSP. [Id. at 11.] At that appointment, King told Shelton that the Ibuprofen was not helping and asked if they could talk about removing the cyst on his abdomen. [Id.] Shelton noted that King continued to complain of pain in the epigastric area and that King had “tenderness upon palpation, ” but that there was no redness or swelling. [Id.] The next day, on June 18, 2015, Dr. Tangilag followed up with King. [Id. at 12.] King reported experiencing severe pain in his stomach ever since his fight in March and “describe[d] the pain as sharp, constant, [and] aggravated by movement.” [Id.] Dr. Tangilag assessed that King did not have an acute abdomen and concluded that further imaging was not warranted. [Id.] She noted that the ultrasound performed on March 31 did not indicate a hernia, and that the sebaceous cyst was “unlikely to be the cause of his abdominal pain.” [Id.] Dr. Tangilag also wrote that she and King had a long conversation about his plan of care and that she would continue to monitor him. [Id.]

         In a letter dated July 27, 2015, Denise Burkett, APRN, the Acting Clinical Director at the KDOC, responded to a letter King sent to the Health Services Division on June 15, 2015. [Id. at 14.] She advised him that, on July 2, 2015, “the Health Care Grievance Committee recommended that [he] be referred for further testing. Further testing will determine your plan of care.” [Id. at 14, 24-25.] King filed a Grievance Appeal Form relating to this determination on July 7, 2015. [Id. at 23-24.] Therein, he stated that the Health Care Grievance Committee's conclusion that King would get further testing only resolved half of his grievance, because he additionally sought to have surgery for the removal of the cyst. [Id. at 24.]

         On July 30, 2015, APRN Vickery again saw King again and noted his continued complaints of abdominal pain related to his sebaceous cyst. [Id. at 16.] She further stated that she would consult with Dr. Tangilag regarding the need for further imaging of King's cyst. [Id.]

         Between July 30, 2015 and August 12, 2015, King was transferred from KSP to the Eastern Kentucky Correctional Complex (EKCC). [See Id. at 18.] After his arrival, he was seen on August 12, 2015 by Courtney Elam, APRN. [Id. at 18-19.] APRN Elam noted that King's medical records contained a note from Dr. Tangilag at KSP for King's future providers at EKCC. [Id. at 18.]. In that note, Dr. Tangilag stated that King “was concerned about the . . . cyst . . . and wants to have a CT scan done to rule out malignancy. [Dr. Tangilag] discussed this case with Dr. Lewis” and concluded that “[f]urther imaging is not warranted at this time. He does not present with [signs and symptoms] that are concerning for GI malignancy. He can be seen regularly to monitor the size of the cyst.” [Id.]

         During his visit with APRN Elam, King again stated that he wished to have the cyst removed. [Id.] APRN Elam advised King that “additional imaging and removal of cyst is not indicated at this time. [King was] advised to monitor [the] site and notify medical staff of increase in size or new symptoms.” [Id.] Additionally, the EKCC medical staff would continue to monitor the site. [Id.]

         In a letter dated September 15, 2015, Burkett informed King that she “reviewed [his] electronic health record encounters with APRN Vickery and Dr. Tangilag at KSP and then APRN Elam at EKCC.” [Id. at 20.] She told King that she had “been in correspondence with APRN Elam and further testing (CT scan of the abdomen) will be ordered as outlined by the Health Care Grievance Committee Recommendations.” [Id.] Also on September 15, APRN Elam saw King for abdominal pain, noted in his records that King stated Ibuprofen was not helping, and wrote that she would request a CT scan of King's abdomen. [Id. at 26.]

         The CT scan of King's abdomen and pelvis was performed on September 25, 2015. [Id. at 28-29.] The pathology report states that all findings were “normal” and “unremarkable.” [Id. at 28.] No pelvis masses were detected, nor were any “inflammatory changes” found. [Id.] The impression of the CT was “[n]egative.” [Id. at 29.] APRN Elam discussed the results of the CT scan with King on October 8, 2015. [Id. at 30.] She ...

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