United States District Court, E.D. Kentucky, Central Division, Lexington
TROYCE A. LEWIS, Plaintiff,
JEFFREY SELBY, M.D., Defendants.
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
Troyce A. Lewis is an inmate confined at the Duluth Federal
Prison Camp in Duluth, Minnesota. Proceeding without an
attorney, Lewis has filed a civil rights action pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971) in which he alleges claims of medical
negligence, as well as claims that defendants violated his
constitutional rights while Lewis was confined at the Federal
Medical Center (“FMC”) - Lexington in Lexington,
Kentucky. [R. 1]
Court must conduct a preliminary review of Lewis'
complaint because he has been granted permission to pay the
filing fee in installments. 28 U.S.C. §§
1915(e)(2), 1915A. [R. 7] 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. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). When
testing the sufficiency of Lewis' complaint, the Court
affords it a forgiving construction, accepting as true all
non- conclusory factual allegations and liberally construing
its legal claims in the plaintiff's favor. Davis v.
Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
complaint, Lewis alleges that on September 1, 2016, while he
was incarcerated at FMC-Lexington, he was admitted to the
University of Kentucky Medical Center (“UKMC”)
for a total hip replacement surgical procedure. [R. 1 at p.
2] According to Lewis, the Federal Bureau of Prisons
(“BOP”) contracted this health care service out
to defendant Dr. Jeffery Selby, who then referred it to
UKMC's residents' program, without Lewis' prior
approval or specific knowledge. [Id.] Lewis further
alleges that, although Dr. Selby had expressed to Lewis that
he would be the actual person performing the procedure, this
was not actually true. [Id.]
alleges that, after he was transferred to Duluth Federal
Prison Camp in April 2017, he noticed a severe leg length
disparity four- or five-months post-surgery. [Id]
After requesting and reviewing his medical records, Lewis
claims that he first discovered that Dr. Selby was the
attending physician and that the procedure was, in fact,
administered by defendants Oshikoya, M.D., and Olamide, M., a
resident at UKMC. [Id. at p. 2-3] According to
Lewis, x-rays taken by the Duluth medical staff on April 24,
2017 showed that his left femoral condyle is 16.5mm higher
than the right femoral condyle and the left total hip
arthroplasty prothesis in place with the left acetabular
prosthetic component is elevated compared to the right
acetabulum. [Id. at p. 3]
on these allegations, Lewis filed this complaint against Dr.
Selby, Dr. Oshikoya, and Olamide. [R. 1] He states that he
seeks to hold the defendants “liable for all of the
incurring structural damage to my body's anatomy as a
direct result of the botched surgery, medical malpractice and
gross medical negligence that will cause me to be affected
for the duration of my life.” [R. 1 at p. 3] According
to Lewis, the defendants' failure to adequately perform
his surgical procedure has left him permanently crippled
without further corrective surgery. [Id.] He further
claims that his right to adequate and unbiased health and
surgical care have been violated, as well as his rights under
the Eighth Amendment. [Id. at p. 4]
relief, Lewis requests that the Court find the UKMC
defendants “liable for medical malpractice under state
laws and federal laws that prohibit this type of
injustice” and hold them responsible for all medical
expenses that Lewis will incur during the duration of his
life. [Id. at p. 8] He also requests the Court to
consider the Rehabilitation Act, 29 U.S.C. § 701 et seq
(“RA”), the Americans with Disabilities Act, 42
U.S.C. §§ 12101 et seq.
(“ADA”), and the imposition of punitive damages
for Lewis' pain and suffering. [Id.]
the Court must dismiss Lewis' complaint for failure to
state a claim. A complaint must set forth sufficient
allegations to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The Court has an obligation to
liberally construe a complaint filed by a person proceeding
without counsel, but it has no authority to create arguments
or claims that the plaintiff has not made. Coleman v.
Shoney's, Inc., 79 Fed.Appx. 155, 157 (6th Cir.
2003) (“Pro se parties must still brief the issues
advanced with some effort at developed
Lewis seeks to bring both medical negligence claims and
Eighth Amendment claims against defendants Selby, Oshikoya,
and Olamide, all of whom he alleges were employed by UKMC.
[R. 1] He seeks to bring the constitutional claims against
the defendants pursuant to the Bivens doctrine,
which allows a federal prisoner to bring a money-damages suit
against federal officers who violated certain constitutional
rights. Carlson v. Green, 446 U.S. 14 (1980).
However, a Bivens claim against these defendants
will not lie because they are employed by UKMC, not the
federal government, and Kentucky tort law provides an
adequate remedy for inadequate medical care. See Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 69-74 (2001)
(holding that no private cause of action should be implied
under Bivens against private corporation operating
halfway house under contract with BOP); Minneci v.
Pollard, 565 U.S. 118, 125 (2012) (declining to imply
cause of action under Bivens for inadequate medical
care provided to inmate of prison run by private company, in
part because “in the case of a privately employed
defendant, state tort law provides an ‘alternative,
existing process' capable of protecting the
constitutional interests at stake.”).
Lewis' allegations do not support a claim that the
defendant physicians were “deliberately
indifferent” to his serious medical needs. “In
order to state a cognizable claim [under the Eighth
Amendment] a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to
the plaintiff's serious medical needs.” Estelle
v. Gamble, 429 U.S. 97, 106 (1976). Lewis' hip
replacement surgery in September 2016 may have been
sufficiently serious to implicate constitutional concerns.
But to establish “deliberate indifference” to
that condition, Lewis must allege facts sufficient to show
that his doctors acted with a knowing and culpable disregard
for his well-being, demonstrated by circumstances such as
“intentionally denying or delaying access to medical
care or intentionally interfering with the treatment once
prescribed.” Id. at 104; Wilson v.
Seiter, 501 U.S. 294, 297 (1991); Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011)
(“Deliberate indifference is more than negligence and
approaches intentional wrongdoing.”).
will not suffice are allegations that plaintiff's doctors
were merely negligent in their diagnosis of the
prisoner's medical condition, or simply failed to provide
adequate medical care. Rhinehart v. Scutt, 894 F.3d
721, 736 (6th Cir. 2018). In essence, Lewis' complaint
alleges that: 1) contrary to his expectations, Dr. Selby did
not personally perform his hip replacement surgery; and 2)
his hip replacement surgery was not successful. [R. 1 at p.
2-3] But the fact that, with the benefit of hindsight, a
prescribed course of treatment failed to remedy the condition
is not sufficient to show deliberate indifference.
Thus, “where a prisoner has received some medical
attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims that
sound in state tort law.” Baker v. Stevenson,
605 Fed.Appx. 514, 517 (6th Cir. 2015) (quoting Westlake
v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)).
does not contest that he was provided with treatment for his
medical condition via his hip replacement surgery. Even
“[w]hen a prison doctor provides treatment, albeit
carelessly or inefficaciously, to a prisoner, he has not
displayed a deliberate indifference to the prisoner's
needs, but merely a degree of incompetence which does not
rise to the level of a constitutional violation.”
Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.
2001). A prisoner's “disagreement with the
exhaustive testing and treatment he received while
incarcerated does not constitute an Eighth Amendment
violation.” Lyons v. Brandy, 430 Fed.Appx.
377, 381 (6th Cir. 2011). The defendants provided Lewis with
medical care related to his hip. Although Lewis'
allegations that the medical treatment provided fell below
the applicable standard of care may be sufficient to state a
claim of negligence under state law, they do not suggest the
sort of intentional indifference which is the touchstone of a
constitutional claim under the Eighth Amendment.
to Lewis' medical negligence claims against the
defendants, it is evident from the face of the complaint that
Lewis' claims are untimely. The Court may dismiss a claim
plainly barred by the applicable limitations period upon
initial screening. Jones v. Bock, 549 U.S. 199, 215
(2007) (“If the allegations, for example, show that
relief is barred by the applicable statute of limitations,
the complaint is subject to dismissal for failure to state a
claim.”); Franklin v. Fisher, 2017 WL 4404624,
at *2 (6th Cir. 2017) (“The district court properly
dismissed Franklin's complaint for failure to state a
claim upon which relief may be granted because it is obvious
from the face of her complaint that almost all of her claims
are barred by the applicable statute of limitations.”);
Castillo v. Grogan, 52 Fed.Appx. 750, 751 (6th Cir.
2002) (“When a meritorious affirmative defense based
upon the applicable statute of limitations is obvious from
the face of the complaint, sua sponte dismissal of the
complaint as frivolous is appropriate.”).
medical care about which Lewis now complains occurred in
Kentucky, thus the statute of limitations with respect to
Lewis' negligence claims are governed by Kentucky law.
Under Kentucky law, actions for personal injury and actions
against a physician, surgeon, or hospital for negligence or
malpractice must be commenced within one year after the cause
of action accrues. Ky. Rev. Stat. § 413.140(1)(a), (e);
Hornback v. Lexington-Fayette Urban Co. Gov't.,
543 Fed.Appx. 499, 501 (6th Cir. 2013); Mitchell v.
Chapman, 343 F.3d 811, 825 (6th Cir. 2003). A claim
accrues when the plaintiff becomes aware of the injury which
forms the basis for his claims. Estate of Abdullah ex
rel. Carswell v. Arena, 601 Fed.Appx. 389, 393-94 (6th
Cir. 2015) ...