United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
Percy Barron is a federal inmate who is currently confined at
the United States Penitentiary (“USP”) - McCreary
located in Pine Knot, Kentucky. Proceeding without counsel,
Barron has filed a civil rights action pursuant to Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), against the defendant, Dr. Eric Overley. [R. 1]
Court must conduct a preliminary review of Barron's
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 Barron's 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, Barron alleges that on October 5, 2018, he
submitted an electronic sick-call request to staff at
USP-McCreary, stating that he had extreme left eye pain and
the vision in his left eye was getting worse. [R. 1 at p. 2]
Barron attributes this pain to his scarred and cloudy left
eye cornea. [Id.] Barron states that the nurses at
USP-McCreary responded to his sick-call request and told him
to report to sick-call with his noon meal. [Id. at
p. 3] Barron alleges that, when he reported to his sick-call
appointment on October 5, the sick-call nurse (Nurse Lawson)
referred him to Defendant Dr. Eric Overley, an optometrist
contracting with the Bureau of Prisons (“BOP”).
[Id. at p. 3-4] According to Barron, Dr. Overley
(who was present at USP-McCreary on October 5) told Nurse
Lawson that he was aware of Barron's October 5 sick-call
regarding his left eye problem and that he would see him at
USP-McCreary on October 12. [Id. at p. 4]
further alleges that he reported to the USP-McCreary Health
Services Department on October 12 to see Dr. Overley.
[Id.] Barron states that, after he explained to Dr.
Overley that he was having extreme pain in his left eye and
his left eye vision was getting worse, Dr. Overley refused to
examine Barron's eye because he said that there is
nothing he could do for Barron's left eye problem.
[Id.] Barron states that he previously received
treatment for his left eye from another BOP-contract
optometrist, Dr. Steven Clough, on June 15, 2015, while
Barron was incarcerated at U.S. Penitentiary-ADX in Florence,
Colorado. [Id. at p. 5] Barron states that Dr.
Clough prescribed steroid eye drops for Barron's left
eye, although Barron further states that these eye drops did
not provide him relief from the pain in his left eye.
[Id.] According to Barron, he informed Dr. Overley
about his past 2015 consultation with Dr. Clough, but Dr.
Overley did not attempt to review Dr. Clough's
also claims that Dr. Overley had previously prescribed eye
ointment for Barron's left eye pain while Barron was at
USP-McCreary, but the eye ointment did not remove the pain
from Barron's left eye. [Id. at p. 6] According
to Barron, although eye pain and decreased vision can be
caused from high eye pressure, Dr. Overley refused to use the
eye examination equipment to check his left eye pressure on
October 12, 2018. [Id.] Barron claims that he is now
having migraine headaches and dizziness due to his extreme
left eye pain and that his left eye vision has gotten worse.
on these allegations, Barron claims that “the failure
of defendant BOP contract Dr. Eric Overley (Optometrist) to
examine plaintiff left eye and provide treatment for
plaintiff left eye pain on October 5, 2018 and October 12,
2018 at USP McCreary constitutes medical malpractice under
federal law.” [Id. at p. 7] Barron claims that
he sent Dr. Overley a “notice of intent to sue”
letter regarding his allegations, but Dr. Overley did not
respond. [Id. at p. 8] As relief, Barron seeks
compensatory damages against Dr. Overley “for the
physical injuries resulting from his failure to provide
medical care to the plaintiff, ” as well as a court
order directing the staff at USP-McCreary to permit Barron to
see a different optometrist for an eye examination.
[Id. at p. 18]
the Court must dismiss Barron's 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
the nature of the claim asserted by Barron is not entirely
clear. Although Barron claims that Dr. Overley's refusal
to examine and provide treatment for Barron's left eye
constitutes “medical malpractice under federal law,
” medical malpractice is a tort claim governed by state
law, not a claim based on federal law. Even so, to the extent
that Barron's allegations suggest a claim under the
Eighth Amendment of the United States Constitution based on
deliberate indifference to Barron's serious medical
needs, such a claim is not cognizable against Dr. Overley.
The Bivens doctrine 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, according to
Barron's allegations, Dr. Overley is not an employee of
the BOP, but instead provides medical services to inmates at
USP-McCreary through a contract with the BOP. [R. 1 at p. 15]
Thus, a Bivens claim against Dr. Overley will not
lie because he is not a federal officer, 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.”).
Barron's allegations do not support a claim that Dr.
Overley was “deliberately indifferent” to
Barron's 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). Such a claim involves a two-part inquiry
with both an objective and a subjective component: (1) the
plaintiff must allege a sufficiently serious medical need,
and (2) the plaintiff must allege facts that “show that
the official being sued subjectively perceived facts from
which to infer substantial risk to the prisoner, that he did
in fact draw the inference, and that he then disregarded that
risk.” Johnson v. Karnes, 398 F.3d 868, 874
(6th Cir. 2005) (quoting Comstock v. McCrary, 273
F.3d 693, 607 (6th Cir. 2001)).
the condition of Barron's left eye in October 2018 was
sufficiently serious to implicate constitutional concerns, to
establish “deliberate indifference” to
Barron's condition, Barron must allege facts sufficient
to show that Dr. Overley 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.” Estelle, 429 U.S. 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). See also Comstock, 273
F.3d at 703. Indeed, “the requirement that the official
have subjectively perceived a risk of harm and then
disregarded it is meant to prevent the constitutionalization
of medical malpractice claims; thus, a plaintiff alleging
deliberate indifference must show more than negligence or the
misdiagnosis of an ailment.” Johnson, 398 F.3d
at 875 (quoting Comstock, 273 F.3d at 703). Here,
Barron repeatedly states that Dr. Overley committed
“medical malpractice” (which is a negligence
claim), and makes no allegation that Dr. Overley subjectively
perceived a risk of harm to Barron, then disregarded it. [R.
1 at p. 7, 8] However, allegations of medical negligence are
simply insufficient to state a claim for violation of
Barron's constitutional rights.
Barron concedes that Dr. Overley provided treatment for
Barron's left eye by previously prescribing eye ointment
for Barron's left eye pain, although Barron claims that
the ointment did not remove the pain. [Id. at p. 6]
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)).
“[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, 273 F. at 703. 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). Dr. Overley provided
Barron with medical care related to his eye and Barron's
allegations that the medical treatment ...