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Phillips v. Tangilag

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

July 1, 2019



          Thomas B. Russell, Senior Judge

         Plaintiff Donald R. Phillips has two related motions before the Court: Plaintiff's Motion for Injunctive Relief (Order Requiring Plaintiff's Transport for Medical Examination and Treatment), (R. 105), and Motion for Leave to File Second Amended Complaint, (R. 108). The Defendants, Shastine Tangilag, Lester Lewis, Ted Jefferson, and Correct Care Solutions, have responded to the motion for injunctive relief but have not yet responded to the motion for leave to amend. For the reasons that follow, the Court must HEREBY DENY Phillips's motion for injunctive relief, (R. 105). As will be discussed further below, Phillips's motion to amend, (R. 108), is consequently HEREBY DENIED AS MOOT.


         Donald R. Phillips is an inmate within the Kentucky Department of Corrections. (R. 1). In 2014, Phillips was assaulted by another inmate and suffered an injury to his left leg. (Id.). Later, his injury was diagnosed as a “probable plantaris rupture in the left lower leg.” (Id.) Phillips filled out a Healthcare Request form on November 26, 2014, (R. 57-1), and was seen by Dr. Shastine Tangilag on November 29. (R. 57-2). In her notes, Tangilag stated that Phillips had “a mass on the posterior leg. Has been increasing in size for the past month. Pain is minimal.” (Id.). Phillips received an ultrasound on the affected area on February 3, 2015, the results of which were as follows: “Examination of the medial calf. There is a soft tissue mass in the area of concern with good blood flow. However no definite clearcut margins are seen…CT scan is recommended to better evaluate this region.” (R. 57-3). Post-ultrasound notes from Tangilag three weeks later indicate that, at that time, the mass was growing and was more painful than it had been before. (R. 57-4).

         On March 13, 2015, Phillips received an off-site CT scan at Western Baptist Hospital in Paducah, Kentucky. (R. 57-5). The findings were as follows: “A palpable marker was placed on the skin at the region of the abnormality. Between the gastrocnemius and soleus muscles, there is a heterogeneous fluid collection. This is in the normal course of the plantaris muscle and likely represents a plantaris rupture. There is no evidence of fracture or worrisome osseous lesion. No. soft tissue lesions are identified. The visualized tendons and ligaments appear intact.” (Id.). The impression was a “[p]robable plantaris rupture in the left lower leg.” (Id.). Tangilag met with Phillips again after the CT scan results were obtained and informed him that the results would be forwarded to Ted Jefferson, an outside orthopedic surgeon, “to see if this is something surgical that needs to be fixed. Other than the pain and the lump, he [Phillips] has full use of his leg (able to plantar flex) which is consistent with the CT scan finding.” (R. 56-7).

         Jefferson saw Phillips in his office on July 3, 2015 for an examination of Phillips' left leg. (R. 57-7). Jefferson indicated that the lump on Phillips' left leg was a hematoma. (DN 56-5, at 11-12). In his own words, a hematoma is “bleeding that happens in the nonvascular space, like under the skin or deep to the fascia in a muscle belly. It's just basically a large collection of hemorrhagic blood.” (Id. at 12). In Jefferson's estimation, Phillips ruptured his plantaris and the hematoma was likely the resultant effect of that injury. (Id.). During his examination of Phillips, Jefferson attempted to aspirate the mass, a technique wherein the treating physician inserts a syringe into the affected area to remove any fluid that has built up there. (R. 57-7). Jefferson noted that “[n]o appreciable fluid was identified consistent with the diagnosis of chronic hematoma posterior aspect of the left leg.” (Id.). Jefferson recommended that Phillips be given an MRI to determine what his options were. (Id.). The MRI was given on August 11, 2015. (R. 57-9). The MRI indicated that the amount of fluid in Phillips' left calf had “slightly decreased since his previous CT” scan. (Id.). No. mass was identified. (Id.).

         Tangilag's meeting notes from August 19, 2015, wherein she talked with Phillips, state the following: “Dr. Ted Jefferson (Orthopedics) called last week stating that he does not need further treatment from a surgical standpoint. The hematoma is resolving.” (R. 57-10). Surgical debridement of the hematoma had been one of the possible courses of treatment Jefferson had discussed with Phillips. Tangilag indicated that Phillips should put moist heat on the affected area twice daily. (Id.). Finally, Tangilag noted that Phillips told her he had “contacted an orthopedic surgeon for a second opinion because he still ‘wants to be treated, ” and that Phillips “was advised that he has the right to seek a second opinion at his own expense per policy.” (Id.). Phillips did not see another member of the prison medical staff or CCS until late 2017 or early 2018-well after he had already filed the instant suit. (R. 56-4)

         On June 16, 2016, Phillips filed the instant lawsuit pursuant to 42 U.S.C. § 1983. Phillips asserts claims under the Eighth Amendment to the United States Constitution and Section Seventeen of the Kentucky Constitution, and medical malpractice claims. By way of relief, Phillips requests compensatory and punitive damages, declaratory relief, and injunctive relief in the form of medical treatment.

         On March 25, 2018, Phillips filed a Motion for Preliminary Injunction requesting that he be seen by an outside physician so as to alleviate his ongoing pain and suffering. (R. 56). The Court denied that motion for various reasons. One of those reasons was that Phillips had failed to utilize intra-prison channels to be reassessed after it became clear to Phillips that his injury was allegedly no longer resolving itself, as it had been the last time he saw prison medical personnel. (R. 60). The Court noted that the Defendants appeared to indicate that should Phillips reach out through the proper intra-prison channels to obtain a new evaluation of his injury by prison medical staff, this is something that would not be denied to him, provided that he complied with prison regulations. (Id.).

         On January 14, 2019, after having attempted to utilize these intra-prison channels, Phillips moved for an extension of time in which to designate an expert medical witness to be used at trial. In that same motion, Phillips also sought an order from the Court requiring the Defendants to transport Phillips from where he was incarcerated to that medical expert to be evaluated for trial purposes and receive treatment. The Defendants opposed both the extension and the transport. Regarding the transport, the Defendants argued that transporting an inmate always presents a security risk, and that the Court should defer to the Kentucky Department of Corrections concerning such matters. The Defendants also claimed Phillips was free to obtain an expert medical opinion at any time pursuant to Kentucky Department of Corrections' Policies and Procedures § 13.2. However, according to § 13.2, the medical expert would have to come to Phillips and evaluate him where he was incarcerated. The Court granted Phillips his requested extension but, deferring to the Kentucky Department of Corrections, denied Phillips's request that the Court compel the Defendants to transport him to an outside medical expert.

         On January 20, 2019, Phillips moved for leave to amend his Complaint to add Dr. Clifford as a Party Defendant. Dr. Clifford is a medical professional at Little Sandy Correctional Complex. According to Phillips, after the Court had denied his first motion for preliminary injunction, which spurred him to again seek treatment for his leg injury through intra-prison channels, he was seen by Dr. Clifford. During that encounter, Clifford allegedly told Phillips that “she could not ‘abide people like [Plaintiff]', that all Plaintiff wanted was for ‘higher-ups to spend thousands of dollars' on surgery that ‘in her opinion' would not ‘take' anyway, and that all Plaintiff wanted was free money.” (R. 76). After filing a prison grievance, Phillips was again seen by Little Sandy medical staff. They agreed with Dr. Clifford that surgery was not recommended. (Id.). On March 18, 2019, The Court granted Phillips leave to amend and added Dr. Clifford as a Party to this action. (R. 89).

         On March 20, 2019, after a telephonic conference held with the Parties, the Court ordered as follows:

Counsel for Plaintiff shall locate and consult with a medical expert prior to April 24, 2019. That medical expert shall determine, upon review of Plaintiff's medical records, whether he or she could adequately assess Plaintiff's medical condition using the medical facilities at Northpoint Training Center [where Phillips is currently incarcerated]. If that medical expert can adequately assess Plaintiff's medical condition using the medical facilities at Northpoint Training Center, he or she shall travel to Northpoint Training Center to conduct such an assessment. If that medical expert determines that he or she cannot adequately assess Plaintiff's medical condition using the medical facilities at Northpoint Training Center, Plaintiff's Counsel shall notify the Defendants and give them opportunity to make such arrangements as are necessary to transport the Plaintiff to the offices of the aforementioned medical expert. If Defendants deny such transport, the Court, upon proper motion, will determine how to proceed.

(R. 92).

         On May 1, 2019, Phillips's counsel informed the Court that although he had contacted multiple physicians, none of them were willing to assess Phillips outside their own facilities due to constraints imposed by their respective medical malpractice insurance contracts. Apparently, coverage would not extend to assessments or procedures conducted outside the physicians' respective offices. Upon being so informed, the Court ordered as follows: “The Court grants Plaintiff's oral request to file a renewed motion to compel Northpoint Training Facility to transport the Plaintiff to an outside medical facility where he may be examined by a Doctor.” (R. 103).

         On May 20, 2019, instead of filing a renewed motion to compel-as instructed by the Court-Phillips moved again for an injunction requiring Phillips to be transported to an outside medical facility “for examination and treatment of his condition by a qualified physician” in order to “relieve his ongoing physical and mental pain and suffering.” (R. 105). The Defendants responded arguing that Phillips lacks standing to request injunctive relief from the Defendants because, as private medical contractors, they do not have the authority to effectuate an inmate's transport. (R. 106). Phillips replies that, according to the contract between Defendant Correct Care Solutions and the Kentucky Department of Corrections, the Defendants do indeed have the power to effectuate Phillips's transfer. (R. 107).

         In addition, Phillips has filed for leave to amend his Complaint to add Warden Brad Adams as a Party Defendant solely to the extent that he may be necessary in effectuating Phillips's transportation. (R. 108). The Defendants ...

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