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Boldry v. Gibson

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

March 28, 2019



          Joseph H. McKinley Jr., District Judge United States District

         This matter is before the Court upon motions for summary judgment filed by Defendant Colonel Leslie Gibson (DN 23) and Defendants Southern Health Partners, Inc., Dr. Henry Davis, and Nurse Kendra Robinson (the “SHP Defendants”) (DN 26). Fully briefed, this matter is ripe for adjudication. For the following reasons, Defendants' motions for summary judgment (DNs 23 & 26) will be granted.


         Pro se Plaintiff Michael Chad Boldry initiated this 42 U.S.C. § 1983 prisoner civil rights action by filing a complaint signed under penalty of perjury (DN 1) while he was incarcerated at the Henderson County Detention Center (HCDC). Plaintiff also filed an amended complaint that was signed under penalty of perjury (DN 10).[1], [2] The Court conducted an initial screening of Plaintiff's complaint and amended complaints pursuant to 28 U.S.C. § 1915A. On review, the Court allowed official and individual-capacity claims for deliberate indifference to a serious medical need and state-law claims of medical malpractice and the intentional infliction of emotional distress to proceed against Dr. Davis and Nurse Robinson, who were employees of Southern Health Partners, Inc., (SHP), the entity contracted by HCDC to provide medical care to inmates while Plaintiff was incarcerated there. The Court also allowed a constitutional claim of deliberate indifference and a state-law claim for the intentional infliction of emotional distress to proceed against Colonel Gibson, an HCDC official, in her individual capacity.

         After Defendants filed their instant motions for summary judgment, the Court entered an Order directing Plaintiff to file a response. This Order provided Plaintiff guidance in responding to a motion for summary judgment under Rule 56 of the Federal Rules of Procedure, including pointing him to the requirement that he must “support his facts with affidavits (sworn witness statements) and/or other documents contradicting the material facts asserted by Defendants” in their motions (DN 37). The Court also attached a copy of Rule 56 to this Order. Despite this guidance, Plaintiff filed unsworn responses to both motions for summary judgment with no exhibits attached (DNs 38 & 39). Defendants then filed replies. Plaintiff thereafter filed unsworn “amended responses” and an unsworn sur-reply, again with no exhibits attached (DNs 43, 44, & 45).

         II. FACTS[3]

         Plaintiff was incarcerated at HCDC from May 8, 2016, until January 12, 2017. When Plaintiff completed a medical questionnaire upon his arrival at HCDC, he indicated that he had been diagnosed with emphysema but that he was not currently taking any prescription medications “that needed to be continued” while he was incarcerated at HCDC (DN 26-2, Ex. 1-A, Standard Medical Questions). Shortly after he arrived at HCDC, he was placed in a medical cell for detoxification and medical treatment as needed. Plaintiff remained in the medical unit during his entire incarceration at HCDC.

         On June 2, 2016, Plaintiff completed a sick-call request to be seen by a doctor for his emphysema and chronic obstructive pulmonary disease (COPD). He also requested an inhaler. On June 6, 2016, Plaintiff was seen by a nurse who examined him and noted that his respirations were even and unlabored and that his oxygen saturation was 98%. The nurse advised Plaintiff that a doctor would review his records and the need for a consult. Dr. Davis reviewed Plaintiff's records that same day and determined Plaintiff had no acute changes requiring treatment at that time. The next morning, a SHP nurse checked Plaintiff's oxygen levels again to ensure that they were normal, and they were.

         On June 11, 2016, Plaintiff again complained about his COPD and reported that it mostly bothered him at bedtime. Even though Plaintiff's oxygen level was normal and he did not appear to have shortness of breath, the nurse noted that she would obtain orders for Plaintiff to have Albuterol nebulizer treatments as needed. Dr. Davis entered an order for this breathing treatment later that day, and Plaintiff received the treatment that night.

         On June 18, 2016, Plaintiff again requested to see medical staff due to his breathing issues. The nurse that examined him noted that his oxygen levels were 98% and that he was not showing any acute signs of distress, although he had diminished breath sounds and a slight wheeze. The nurse provided another Albuterol breathing treatment, after which Plaintiff's oxygen levels were 99%.

         Plaintiff requested another breathing treatment on June 20, 2016, but upon examination the nurse found that his lungs were clear, his oxygen levels were 97%, and he had no diminished lung sounds or any symptoms of distress. The nurse explained to Plaintiff that he did not need a breathing treatment and suggested that he try some deep breathing exercises. The following day Dr. Davis gave orders for Plaintiff to receive Mucinex 600 mg twice a day and the use of his inhaler, “2 puffs twice a day.” One week later, Plaintiff completed another sick-call slip, stating that he was not receiving his mucus pills.

         On June 29, 2016, Plaintiff underwent a standard history and physical examination. During this examination, Plaintiff reported to the nurse that he had previously been hospitalized for “COPD Emphazema” and that he was currently taking Prilosec and using an inhaler (DN 26-4, Admission Data/History and Physical Form).

         On July 3, 2016, Plaintiff completed another sick-call slip, this time indicating that he would like to be moved out of his medical cell. That same day, Plaintiff received another Albuterol breathing treatment. SHP progress notes indicate that on July 5, 2016, Plaintiff still wanted to be moved out of his medical cell, but that medical staff would not move him as long as he claimed to have ongoing respiratory issues for which he was receiving treatment.

         On August 2, 2016, Dr. Davis re-evaluated Plaintiff due to his ongoing complaints of a bedtime cough, COPD, and shortness of breath. Dr. Davis gave Plaintiff Mucinex and his inhaler (which Plaintiff declined). Dr. Davis noted that Plaintiff was still requesting breathing treatments but did not have any wheezing present. Dr. Davis also noted that Plaintiff was to continue receiving Prilosec for gastroesophageal reflux disease (GERD), which is more commonly known as acid reflux.

         On August 22, 2016, Plaintiff again refused his inhaler. In the following weeks, Plaintiff continued to request to be moved out of his medical cell stating he did not need any continuing treatment.

         On October 9, 2016, Plaintiff told a SHP nurse that he wanted to discontinue the use of his inhaler and leave his medical cell because he had been classified to work and he did not need his inhaler. Plaintiff also told the SHP nurse that he was doing 1, 000 pushups per day.

         On October 28, 2016, Plaintiff complained of shortness of breath. Dr. Davis noted that his x-ray showed “bullous emphysema” and determined that Plaintiff needed to remain on his prescription medications and that he was not a candidate for the work program.

         On November 8, 2016, Plaintiff completed another sick-call form on which he stated: “Just found out I don't even have COPD” (DN 26-7, Ex. 1-E). The following day, Plaintiff completed a sick call slip which stated: “Dr. Mucoria from Owensboro Hospital (pulmonologist) . . . has records showing I don't have emphysema (COPD) and want medical to call and he will fax information showing I don't have COPD” (DN 26-8, Ex. 1-F).

         On November 14, 16, and 17, 2016, Plaintiff filled out three more sick-call slips, again insisting that he did not have COPD and that he should be released from his medical cell. On November 21, 2016, Dr. Davis reviewed Plaintiff's records and determined that Plaintiff should not be released from his medical cell because Plaintiff had a documented history of COPD and was receiving treatment which he had requested for such.


         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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