United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
Michael Eversole claims to have fallen and injured his back
while in custody at the Fayette County Detention Center
(“FCDC”) in Lexington, Kentucky. He sued Rodney
Ballard, Chase Jordan, and Jennifer Privett, asserting
various claims under 42 U.S.C. § 1');">1983. Eversole's
claims against Ballard and Jordan were dismissed on September
6, 201');">17. [Record No. 34] The matter is now pending for
consideration of Defendant Privett's motion for summary
judgment. [Record No. 33] For the reasons that follow,
Privett's motion for summary judgment will be granted.
factual background of this case has been recited on multiple
occasions by the Magistrate Judge and the undersigned.
[Record Nos. 32, 34, 7');">37] Accordingly, only a brief summary is
necessary. Eversole alleges that he was arrested and housed
in the FCDC beginning on October 4, 201');">15. [Record No. 1');">1-1');">1, p.
1');">18] Two weeks later, he began complaining of back and
testicular pain. Id. He was given various diagnoses
over an eight-month period, but the pain did not diminish.
contends that, despite being medically-restricted to a bottom
bunk, the defendants assigned him to a top bunk, from which
he fell while sleeping on April 25, 201');">16. Id. at pp.
1');">18-1');">19. He filed a grievance the following day, alleging that
he had re-injured his back. Id. at p. 1');">19. He
contends that he asked for an MRI, but Defendant Privett
advised that he would not be sent to an outside doctor or for
an MRI. Id. A doctor at FCDC performed an x-ray in
May 201');">16, which revealed a “massive amount of
infection” in Eversole's back. Id. at p.
20. The FCDC doctor then ordered an MRI, which was performed
in July 201');">16, and revealed that infection had spread into
Eversole's bones. Id. He received treatment at
the University of Kentucky Medical Center. Id.
sued Ballard, Jourdan, and Privett in the Fayette Circuit
Court in February 201');">17, asserting that they had been
deliberately indifferent to his serious medical
needs.[1');">1" name="FN1');">1" id=
"FN1');">1">1');">1] The case was removed to this Court in
March 201');">17, and the matter was referred to a United States
Magistrate Judge to manage pretrial matters and submit
proposed findings of fact and recommendations regarding any
dispositive motions. Defendant Privett moved for summary
judgment on September 5, 201');">17, focusing largely on
Eversole's lack of an expert opinion regarding negligent
medical treatment. [Record No. 33] United States Magistrate
Judge Candace J. Smith issued a Report and Recommendation on
December 1');">19, 201');">17, in which she recommended granting
Privett's motion. [Record No. 7');">37] Eversole did not file a
response to Privett's motion and did not file objections
to the Magistrate Judge's Report and Recommendation.
this Court must make a de novo determination of
those portions of the Magistrate Judge's recommendations
to which objections are made, 28 U.S.C. § 636(b)(1');">1)(C),
“[i]t does not appear that Congress intended to require
district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard,
when neither party objects to those findings.”
Thomas v. Arn, 74 U.S. 1');">140');">474 U.S. 1');">140, 1');">150 (1');">1985). Moreover, a
party who fails to file objections to a magistrate
judge's proposed findings of fact and recommendation
waives the right to appeal. See United States v.
Branch, 7');">37 F.3d 582');">57');">37 F.3d 582, 587 (6th Cir. 2008).
Eversole's failure to respond to Defendant Privett's
motion for summary judgment, the Magistrate Judge engaged in
a thorough evaluation of Eversole's claims. And although
it is not required to do so, this Court has fully reviewed
the matter. Having made a de novo determination, the
Court agrees that summary judgment should be granted in favor
of Defendant Privett.
Privett characterizes Eversole's claims against her as
“a medical malpractice action” and contends that
summary judgment must be granted because he has failed to
provide expert testimony. [Record No. 33] Privett is correct
that, under Kentucky law, plaintiffs generally are required
to offer expert testimony in support of their medical
negligence claims. See Andrew v. Bagley, 203 S.W.3d
1');">165, 1');">170 (Ky. Ct. App. 2006). However, the Magistrate Judge
correctly concluded that Eversole's pro se
claims are limited to allegations of deliberate indifference
to his serious medical needs under the Eighth Amendment and
42 U.S.C. § 1');">1983. See Wells v. Brown, 891');">1 F.2d
591');">1, 594 (6th Cir. 1');">1989) (Court construes pro se
pleadings liberally, but will not construe a complaint to
contain facts not alleged.).
Court may grant summary judgment on grounds not raised in a
party's motion after giving the plaintiff notice and time
to respond. Smith v. Perkins Bd. of Educ., 708 F.3d
821');">1 (6th Cir. 201');">13); Fed.R.Civ.P. 56(f). Nearly one month has
passed since the Magistrate Judge filed her Report
recommending that Privett's motion for summary judgment
be granted on grounds not raised in the motion. [Record No.
7');">37] Further, similar issues were discussed at length in the
Report and Recommendation and Memorandum Order regarding
Defendant Ballard's motion for judgment on the pleadings.
[Record No. 32, 34] Accordingly, Eversole has been provided
notice and a reasonable period of time to respond to the
challenges regarding his deliberate indifference claims.
indifference requires a subjective determination that the
defendant had “a sufficiently culpable state of mind in
denying medical care.” Blackmore v. Kalamazoo
Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (citing
Estelle v. Gamble, 7');">429 U.S. 97, 1');">104 (1');">1976)). The
defendant must have actually known of a serious medical need
or “circumstances clearly indicating” such a
need. Further, the defendant must have ignored the need by
disregarding a substantial risk of serious harm to the
inmate. Garretson v. City of Madison Heights, 407
F.3d 789, 797 (6th Cir. 2005). Based on Eversole's vague
complaints of “back pain” and the medical
treatment he acknowledges having received, there is simply no
indication that these circumstances occurred.
contends that, after he fell out of bed on April 25, 201');">16, he
filed several medical slips because his pain had worsened,
but Privett declined to “send him out” to see a
doctor or to have an MRI. [Record No. 1');">1-1');">1, p. 1');">19] However,
Eversole concedes that an x-ray was performed on an
unspecified date in May and that a physician at FCDC ordered
an MRI soon after that. “An inmate does not have the
right to choose his medical treatment, and the mere fact that
he disagrees with the treatment he is given does not serve to
establish that his medical care was inadequate, let alone
that those treating him acted with deliberate
indifference.” Burrows v. Smith, No.
07-CV-43-GFVT, 2007 WL 436541');">11');">1, at *3 (E.D. Ky. Dec. 1');">12,
2007) (citing Durham v. Nu'Man, 7 F.3d 862');">97 F.3d 862,
868-69 (6th Cir. 1');">1996)). The Court will not second-guess the
adequacy of medical ...