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Curtis v. Davis

United States District Court, E.D. Kentucky, Southern Division, London

December 6, 2017

CHRISTOPHER DAVIS, et al., Defendants.



         Federal inmate Melvin Curtis filed this civil rights action against federal officials pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (“FTCA”). Curtis alleges that he injured his rotator cuff while exercising, but that medical staff at USP-McCreary denied his repeated requests that a MRI be performed. [Record Nos. 1, 4] The defendants have now filed a motion to dismiss the Complaint or, in the alternative, for summary judgment. [Record No. 31] This motion has been fully briefed and is ripe for consideration.


         Curtis claims that he injured his right shoulder while exercising on December 13, 2014. He sought medical care at the health clinic that day. Nurse Phillips conducted a range-of-motion test that did not indicate any abnormalities, although Curtis grimaced during the examination. Phillips provided Curtis with a sling to support his arm, prescribed ibuprofen for the pain, and ordered an x-ray to rule out any severe injury. Three days later, Dr. Martillotti reviewed the x-ray which was negative except for signs of mild calcification of the AC joint capsule. Dr. Onuoha also reviewed the x-ray the following day. During a follow-up appointment in late December, Advance Practice Registered Nurse Davis prescribed pain medication for Curtis and advised him to use heat and perform range-of-motion exercises to promote recovery. [Record No. 31-2 at 59, 61; No. 31-3 at 20-28; No. 31-4 at 2-3, 25-29]

         In January 2015, Curtis sent several e-mails to medical staff complaining of shoulder pain and requesting that an MRI be performed. Staff responded that Curtis should discuss the matter during upcoming appointments that had already been scheduled. [Record No. 31-2 at 54-56] During an appointment on March 16, 2015, Curtis told nurse Davis that he had not been able to sleep well since the injury because of shoulder pain. Although Curtis did not appear to be in pain or suffering observable symptoms with respect to his shoulder, Davis submitted a request for Curtis to be evaluated by a contract orthopedist. That request was denied by the Utilization and Review Committee (“URC”) two days later. Curtis reported that he was sleeping poorly again on March 30, 2015. He was transferred to the Federal Correctional Institution-Gilmer in West Virginia on April 8, 2015. [Record No. 31-2 at 62; No. 31-3 at 39-52]

         Following his transfer to FCI-Gilmer, Curtis alleges that in late April 2015 a BOP physician concluded that a MRI should be conducted. That request was approved, but the MRI was not performed until November 2015. According to Curtis, in 2016 an outside orthopedic surgeon later evaluated the MRI and concluded that surgery on his rotator cuff was no longer a viable option.[1] [Record No. 1 at 5-7; No. 31-3 at 53-59]

         On July 9, 2015, three months after his transfer, Curtis filed grievance No. 827547 in which he complained that his prior request for a MRI when he was housed at USP-McCreary was denied by an unnamed medical director, nurse Jones, physician's assistant Davis, and Dr. Onuoha. That grievance was rejected as untimely. Curtis took no further steps to appeal the rejection or otherwise exhaust that grievance. [Record No. 31-2 at 3, 33-35] However, he initiated a second grievance, No. 832226, on July 26, 2015, complaining of the medical care he received at FCI-Gilmer. The warden denied this grievance on August 20, 2015. Again, Curtis did not appeal the denial. [Record No. 31-2 at 4, 36-39]

         Curtis filed a third grievance (No. 838072) on October 6, 2015, regarding the delay by staff at FCI-Gilmer in performing an MRI of his shoulder. The warden denied the grievance. In his appeal to the regional office, Curtis complained for the first time in that grievance appeal that medical staff at USP-McCreary should not have denied his initial request for a MRI in January 2015. The regional office denied the appeal on December 24, 2015, noting that a MRI performed the month before was unremarkable, showing only mild degenerative changes and tenosynovitis. [See Record No. 31-2 at 63-64 (“There is no appreciable rotator cuff muscle atrophy or edema.”).] Curtis's appeal to the Central Office again expanded upon his allegations, complaining for the first time in his appeal that since 2013 he had not received proper treatment for a separate injury, a torn tendon. The Central Office denied this appeal on February 23, 2016. [Record No. 31-2 at 5-7, 24-32]

         Curtis filed a Form SF-95, Claim for Injury, Damage, or Death, with the Bureau of Prisons on August 17, 2016. Curtis alleged in this claim form that staff at USP-McCreary misread his x-ray and refused his repeated requests for an MRI in January 2015. He further claimed that his medical care following his transfer to FCI-Gilmer was also deficient. The BOP denied this claim on December 7, 2016. [Record No. 31-2 at 9, 51-53, 70-72]

         Curtis filed his Complaint on December 13, 2016, asserting that the defendants violated his Eighth Amendment rights by not performing a MRI of his shoulder shortly after his injury. Curtis filed a “supplemental” Complaint on January 17, 2017, to assert a claim under the FTCA. [Record Nos. 1, 4]

         The defendants contend that Curtis's claims under Bivens are barred because: (a) he failed to properly exhaust his administrative remedies; (b) he filed suit after the statute of limitations had expired; (c) the named defendants were not personally involved in his medical care; and (d) Curtis's mere disagreement with the medical care provided to him does not constitute deliberate to his serious medical needs. They further contend that his FTCA claim must be dismissed because Curtis has not provided any expert testimony to support his contention that their conduct fell below the applicable standard of care. [Record No. 31-1]


         The Court must treat the defendants' motion to dismiss the plaintiff's Complaint as a motion for summary judgment under Rule 56 because they have attached and relied upon documents and declarations extrinsic to the pleadings. Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). A motion under Rule 56 challenges the viability of another party's claim by asserting that at least one essential element of that claim is not supported by legally-sufficient evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).

         A party moving for summary judgment must establish that even viewing the record in the light most favorable to the nonmovant, there is no genuine dispute as to any material fact and that she is entitled to a judgment as a matter of law. Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). The moving party does not need her own evidence to support this assertion, but need only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but must point to evidence of record in affidavits, depositions, and written discovery which demonstrates that a factual question remain for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th Cir. 2003); United States v. WRW Corp., 986 F.2d 138, 143 ...

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