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Martinez v. Hiland

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

October 24, 2017




         This matter is before the Court upon two cross-motions for summary judgment (DNs 98 & 99). Fully briefed, these motions are ripe for decision. For the following reasons, Plaintiff's motion for summary judgment will be denied, and Defendants' motion for summary judgment will be granted in part and denied in part.


         Plaintiff initiated this § 1983 action on October 16, 2013, against Defendants Kentucky State Penitentiary (KSP) Dr. Steve Hiland, KSP Warden Randy White, Kentucky Department of Corrections (KDOC) Dr. Scott Haas, and the Kentucky Board of Medical Licensure. On April 29, 2014, this Court conducted an initial review of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A and dismissed Plaintiff's claims against the Kentucky Board of Medical Licensure as barred by the Eleventh Amendment (DN 14). The Court also dismissed Plaintiff's claim based upon his allegations that he was being improperly charged $3.00 co-pays for prescriptions and medical visits. The Court, however, allowed Plaintiff's § 1983 claims against Dr. Hiland to proceed for deliberate indifference to serious medical needs, retaliation, and discrimination based upon race. The Court also allowed Plaintiff's state-law claims to proceed against Dr. Hiland for negligence, against Warden White for the negligent retention of Dr. Hiland, and against Dr. Haas for negligent supervision of Dr. Hiland.

         On April 25, 2017, the Court granted Dr. Haas's motion for summary judgment (DN 94). On that same date, the Court denied Dr. Hiland and Warden White's motion for summary judgment without prejudice and allowed them 30 days to file a properly supported motion for summary judgment. It is this motion and Plaintiff's cross-motion motion for summary judgment that are now before the Court for review.

         II. FACTS[1]


         Prior to being incarcerated at KSP, Plaintiff was incarcerated at Northpoint Training Center (NTC). Although Plaintiff claims he was diagnosed with a bulging disc while at NTC, his NTC medical records simply reflect that he had been diagnosed with “chronic low back pain.” (DN 38-1, p. 3). On September 9, 2009, a physical therapist evaluated Plaintiff and recommended that he be issued a personal “TENS unit”[2] to use for his back pain in conjunction with an exercise program. (DN 1-1, p. 15). At some point, Plaintiff was seemingly moved to a segregation unit at NTC and no longer allowed to keep a TENS unit in his cell. However, he was allowed to use a TENS unit for “30 minutes three times a day at pill call times as needed.” (DN 34-9, p. 4).

         Additional medical records from NTC also show that Plaintiff had been diagnosed with tinnitus and referred to a specialist for this issue. On April 2, 2010, an NTC healthcare provider requested a consult with an ENT[3] because Plaintiff had complained of ringing and pressure in his ears for over two years (DN 9-1, p. 4), and had been treated with “multiple combinations of medication without symptom relief.” (DN 9-1, p.3). This request for a consult was approved, and Plaintiff was scheduled to see an outside provider on April 5, 2010 (DN 9-1, p. 2). Plaintiff, however, was transferred to KSP in April 2010 and, therefore, did not make this appointment.


         1. Lower Back Pain

         In his complaint, Plaintiff alleges that when he was transferred to KSP in April 2010, Dr. Hiland discontinued his use of a TENS unit but treated him with prescription naproxen for his chronic lower back pain. Plaintiff filed a grievance related to Dr. Hiland's refusal to issue him on TENS unit in May 2010. In his apparent response to this grievance, Dr. Hiland wrote:

Mr. Martinez transferred to KSP with a TENS unit. I do not treat back pain with this device. I have been successful in treating back pain with pharmaceuticals. He is no longer at [Kentucky State Reformatory], and I am his institutional physician. This means that I determine the treatment for his complaints. A TENS unit is not appropriate at a maximum security prison because of security risks.

(DN 121-2, p. 7, Information Sheet for Informal Resolution, 5/7/10).

         Plaintiff next complains that, beginning in 2013, Dr. Hiland began failing to regularly prescribe him naproxen. The medical records submitted concerning Plaintiff's medical care at KSP begin in early 2011. The first pertains to Plaintiff's annual physical examination on August 30, 2011 (DN 34-14, pp. 1-2). This record reflects that Plaintiff made no subjective complaints regarding his back and that the KSP medical provider who performed the physical found his back to be “normal.” (Id.). However, a medical record from November 1, 2012, shows that Plaintiff had been prescribed “Naproxen 500 mg” tablets to take twice daily for 180 days from July 22, 2012, until January 17, 2013. Plaintiff's medical records next reflect that Plaintiff received a second annual physical examination at KSP, which was performed by Dr. Hiland on December 6, 2012. During this physical, Plaintiff made no subjective complaints regarding his back, and it was again found to be “normal.” (DN 34-17, pp. 1-2). These records next show that Plaintiff submitted sick-call slips on February 28, 2013, and March 12, 2013, because his prescription for naproxen had been “cancelled.” (DN 34-1, DN 34-2). Because Plaintiff sought a renewal of his prescription pain medication for his back pain, Plaintiff was examined on March 12, 2013. (DN 34-3). During this examination, it was noted that Plaintiff had “no tenderness to vertebral spine to soft tissue of back [and] normal distal sensory and motor functions.” (Id.) Plaintiff was informed that over-the-counter pain medications were available from the inmate commissary. Plaintiff filed a grievance based upon this recommendation because inmates in segregation could not purchase such medications. (DN 121-2, p. 3). In their response to the grievance, KDOC officials wrote: “The medical director has determined that ASA[4] and Tylenol not be given out to inmates in seg as it can cause problems with medications interactions. Inmates can get an order for these meds by signing up for sick call and the doctor will review the chart, check for an interaction problem and order the meds as needed.” (Id.).

         On April 1, 2013, Plaintiff made a specific request to be seen by Dr. Hiland, writing, “I suffer severe pain due to my back pain, medical been canceled.” (DN 34-4). However, on April 10, 2013, Plaintiff signed a “Release of Responsibility Refusal to Accept Medical Care” stating that he was refusing a medical appointment because “don't like available provider I think he discriminates against me.” (DN 34-5). Plaintiff was next assessed by a medical provider at KSP on July 24, 2013, because he was again requesting renewal of his naproxen prescription. (DN 34-6). Plaintiff's records from this visit indicate that he was given a two-week prescription of 500 mg naproxen to take twice daily. (DN 34-6). On August 7, 2013, Plaintiff requested a renewal of this prescription for back pain but his medical records indicate that his request was denied because “MD states he has off of it x 2 weeks before he will renew it.” (DN 34-7). Plaintiff made another request for a naproxen prescription on September 18, 2013, but was again told that it was not time. (DN 34-8). On November 20, 2013, Plaintiff made another request for a naproxen prescription, and the progress notes reflect that “Dr. Hiland said renew it if its time.” (DN 34-11).

         On September 16, 2013, Plaintiff filed a second grievance regarding a TENS unit. (DN 34-9, p.2). In this grievance, Plaintiff complained that Dr. Hiland had deprived him of a TENS unit in violation of his constitutional rights. (Id.). Plaintiff stated that he believed this was “discriminatory treatment” and noted that he was allowed to use a TENS unit at pill call while he was in segregation at NTC. This grievance was rejected for the following reason: “No date indicating when Dr. denied you the tens unit.” (DN 34-9, p. 5).

         Finally, a medical x-ray of Plaintiff's spine on September 9, 2014, showed that despite Plaintiff's claim of a bulging disc, there was “no evidence of fracture, destructive bony lesion, or instability” and “[D]isc space areas and posterior elements are normal. Soft tissue are normal.” (DN 39-2).

         2. Tinnitus

         Upon his arrival at KSP, Plaintiff filed a grievance requesting that he be seen by a specialist regarding his tinnitus, as he had been scheduled to do before being transferred from NTC. (DN 1-1, p. 5). There are no records which show how this grievance was resolved. However, the first medical records from KSP related to Plaintiff's tinnitus begin on May 10, 2011. This record shows that Plaintiff complained that he had had noise in both ears for five years and that Dr. Hiland examined his ears, found his “TM and auditory canal are WNL, ” and concluded that no treatment was indicated. (DN 34-13). During Plaintiff's August 30, 2011, annual physical, the exam record reflects that Plaintiff made no subjective complaints regarding his ears, although, upon an examination of Plaintiff's ears, the medical provider found “yellow to brown, sticky to hard cerumen, obscuring drum.” (DN 34-14, pp. 1-2). Plaintiff was then examined on November 1, 2012, complaining of “pain left ear, runny nose, NP cough”; was diagnosed with “left otitis media”; and was prescribed amoxicillin and prednisone. (DN 34-15, pp. 1-3). Then, on November 21, 2012, Plaintiff was seen by Dr. Hiland after complaining of “painful lt. ear for a few years.” (DN 34-16). The medical records indicate that, upon examination of Plaintiff, Dr. Hiland concluded that Plaintiff was suffering from a “muscle spasm” and prescribed him dexamethasone. On December 6, 2012, Dr. Hiland performed Plaintiff's second annual physical examination at KSP. (DN 34-17, pp. 1-2). On this date, the exam record shows no complaints regarding Plaintiff's ears and indicates that, upon examination, Dr. Hiland found Plaintiff's “hearing normal, tympanic membranes intact, external and middle ear anatomy normal.” (Id.).

         On October 3, 2013, Plaintiff filed another grievance stating that he had suffered severe ear pain for six years and asked to see a specialist as he had been scheduled to do before being transferred from NTC in 2010. (DN 1-1, p. 6). This grievance was rejected because Plaintiff did not identify on what date Dr. Hiland refused to refer him to a specialist.

         On March 1, 2014, Plaintiff was seen by another physician for his complaints of “ringing/pressure” in his ears. (DN 17-1, p. 16, Aff. Dr. Judd Bazzel). Dr. Bazzel found that Plaintiff's ears were full of wax and prescribed wax removal drops. When these drops did not improve his symptoms, he was referred to a specialist. (Id.). In his affidavit, Dr. Bazzel stated, that “tinnitus may cause trouble hearing, working, or even sleeping, but does not require immediate treatment.” (Id.). On August 13, 2014, Plaintiff was seen by an audiologist and fitted for hearing aids. (DN 39-1). The audiologist noted that “the purpose of the fitting was not only to assist his hearing loss but also to assist in masking out of the subjective tinnitus.” (Id.).


         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party ...

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