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Dahms v. Correct Care Solutions, LLC

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

October 4, 2019



          Charles R. Simpson III, Senior Judge.

         This matter is before the Court on motion for summary judgment by Plaintiff, (DN 27), motion for summary judgment by Defendants, (DN 30), and three additional motions by Plaintiff, (DNs 25, 26, 42). For the following reasons, Plaintiff's motion for summary judgment, (DN 27), will be DENIED, Defendants' motion for summary judgment, (DN 30), will be GRANTED, and Plaintiff's additional motions, (DNs 25, 26, 42) will be DENIED AS MOOT.

         I. Procedural History

         David Dahms, a pro se plaintiff prisoner, originally brought this action against 18 defendants who were associated with his medical care following a back surgery he received, while incarcerated, on September 20, 2017. (DN 1). Dahms filed his original complaint on January 30, 2018, alleging negligence, intentional infliction of emotional distress/outrage, intentional obstruction/denial of access to the courts, retaliation, and violations of the United States Constitution. (DN 1). “[U]nable to determine what actions Plaintiff alleges each Defendant took or failed to take, ” the Court permitted Dahms to file an amended complaint prior to conducting its initial review. (DN 6). Dahms filed his amended complaint on May 16, 2018, clarifying his claims and narrowing his list of defendants to seven. (DN 7). After an initial screening by this Court, the only remaining claims are (1) a 42 U.S.C. § 1983 Eighth Amendment claim against Nurse Betsy Ramey and Dr. Elton Amos, in their individual capacities, and (2) state-law negligence and intentional infliction of emotional distress claims against Nurse Betsy Ramey, Dr. Elton Amos, and Correct Care Solutions, LLC (“Defendants”). (DN 11, p. 4). Plaintiff filed a “motion for summary judgment and motion for settlement conference” on February 8, 2019. (DN 27). In his motion, Plaintiff restates the Eighth Amendment claim from his amended complaint: Defendants' failure to provide Plaintiff the exact medications prescribed by his surgeon amounted to “conduct that was deliberately indifferent to Plaintiff's serious medical need….” (Id. at 2). On February 15, 2019, Defendants filed their own motion for summary judgment. (DN 30, p. 15). Regarding Plaintiff's Eighth Amendment claim, Amos and Ramey argue that (1) plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit and (2) “the undisputed facts establish that no reasonable jury could conclude that any defendant acted with the requisite culpable mental state to establish deliberate indifference.” (Id.). In an attempt to excuse his failure to exhaust administrative remedies before filing suit, Plaintiff filed a motion to reopen discovery to obtain evidence that prison officials had implemented a moratorium on answering prisoner complaints during times which Defendant had filed grievances. (DN 42).

         II. Factual Background

         Plaintiff alleges, and Defendants do not dispute, that Plaintiff suffered a back injury in November, 2016. (DN 29, p. 1). After the back injury, but before receiving surgery, Plaintiff's prescription medications included: Phenergan (25 mg tablet twice daily); gabapentin (800 mg tablet twice daily); diphenhydramine (25 mg capsule at bedtime); tramadol (two 50 mg tablets as needed three times a day); and duloxetine (20 mg capsule at bedtime). (DN 32, p. 32). On September 19, 2017, Plaintiff “underwent a minimally invasive transforaminal lumbar interbody fusion at L4-5” at the University of Kentucky Medical Center (“UKMC”). (Id. at 40). After the operation, Plaintiff's surgeon, Dr. Raul Vasquez Castellanos, reported that Dahms “tolerated the procedure well and did well post-operatively without any immediate complications.” (DN 19-1, p. 1). Dr. Castellanos also recorded that Dahms was “ambulating” and his “pain [was] well controlled” with oral medication. (Id.). In his discharge report, Dr. Castellanos noted under the section titled “Medication Instructions” that Plaintiff was to “Take Medication exactly as instructed.” (Id. at 3). Doctor Castellanos prescribed the following medications: acetaminophen (325 mg - 2 tablets every 4 hours, as needed for a fever or mild pain); diazepam (5 mg - 1 tablet every 4 hours), docusate sodium (100 mg capsule - 2 times a day); gabapentin (300 mg capsule -3 times a day); oxycodone acetaminophen (every 4 hours, as needed for moderate to severe pain); and senna (17.2 mg tablet - once a day). (DN 19-1, p. 2). Doctor Castellanos further recommended Plaintiff be transferred to a facility with physical therapy services. (DN 19-1, p. 1). Dr. Castellanos reported that Plaintiff “received the full benefit of hospital stay” and that he was “ready for discharge” to the care of Eastern Kentucky Correctional Complex (“EKCC”) on September 21, 2017. (DN 19-1, p. 1). On September 22, 2017, at the request of medical staff, prison officials transferred Plaintiff to the Kentucky State Reformatory (“KSR”), a facility with post-surgery physical therapy services. (DN 32, p. 24-28).

         While at KSR, prison staff did not provide Dahms with the medications prescribed by Dr. Castellanos. (DN 32, p. 16). Instead, Plaintiff continued receiving his pre-surgery medications, with the exception of duloxetine (cancelled on September 22, 2017). (Id.). On September 27, 2017, Plaintiff submitted a sick call request regarding continued post-operative pain to officials at KSR. (DN 32, p. 11). At that time, Plaintiff stated tramadol “provide[d] relief” for his pain, but he was being denied adequate medical care by not receiving additional pain medication. (DN 32, p. 11). Plaintiff filed a series of grievances with KSR concerning his allegedly inadequate medical care, starting in October 2017 and continuing through January 2018.

         Although Dahms worded each grievance differently, his core complaint was essentially the same[1] as his § 1983 Eighth Amendment claim: (1) Dahms was in continued pain, (2) his pain was a direct result of prison staff not filling the exact prescriptions provided by Dr. Castellanos, and (3) denial of those prescriptions constituted a violation of his rights. The dates of Dahms' grievances relevant to his § 1983 claim, as well as the dates of final exhaustion, are summarized as follows:

Grievance number

Date received

Date of final exhaustion



October 10, 2017

June 14, 2018

DN 30-2, p. 65-83


December 5, 2017

February 5, 2018

DN 30-2, p. 20-29


December 11, 2017

May 16, 2018

DN 30-2, p. 30-38


December 21, 2017

February 5, 2018

DN 30-2, p. 40-47


January 19, 2018

February 5, 2018

DN 30-2, p. 48-56

         III. Plaintiff's § 1983 claim

         A. Exhaustion of administrative remedies

         Defendants Ramey and Amos move this Court for summary judgment on Plaintiff's § 1983 claim on the grounds that Dahms failed to exhaust his administrative remedies prior to filing his original complaint. (DN 30, p. 8). Dahms responds that this Court should excuse his failure to exhaust his administrative remedies because the Grievance Office was in a state of moratorium[3]during the period in which Plaintiff filed grievances. (DN 43, p. 1). Plaintiff's argument is without merit because (1) Plaintiff failed to exhaust his administrative remedies prior to filing this action and (2) a moratorium does not excuse Plaintiff's failure to exhaust his administrative remedies prior to filing suit.

         1. Legal standard

         The Prison Litigation Reform Act (“PLRA”) requires that a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks through the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. Prisoner grievance procedures under the PLRA provide prison staff with the opportunity to respond to complaints and create an administrative record for the court in the event that a prisoner files a lawsuit. Jones v. Bock, 549 U.S. 199, 204 (2007). To properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Id. at 218; Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.'” Jones, 549 U.S. at 218. Exhausting administrative remedies after filing suit is inadequate to survive dismissal under the PLRA. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (“The prisoner, therefore, may not exhaust administrative remedies during the pendency of the federal suit.”).

         2. Failure to exhaust administrative remedies

         Defendant did not exhaust his administrative remedies, as required by the PLRA, before filing suit. Dahms filed five grievances with Kentucky's Department of Corrections alleging that he was constitutionally entitled to receive the medications prescribed by Dr. Castellanos. Dahms filed the earliest of these grievances, Grievance 17-1154, on October 10, 2017 and the latest of these grievances, Grievance 18-0152, on January 19, 2018. Mr. Dahms did not exhaust his final administrative remedy (for Grievance 17-1154) until June 14, 2018-almost five months after filing his original complaint. The PLRA mandates that “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” § 1997e(a). Therefore, the remaining question before the court is whether administrative remedies were “available” to Dahms or if circumstances otherwise excuse Dahms from meeting the PLRA's failure-to-exhaust requirement.

         3. Excuses for failure to exhaust administrative remedies

         Because Dahms failed to exhaust his administrative remedies before filing his complaint, and Defendants pled failure to exhaust administrative remedies as an affirmative defense, Dahms' suit can only proceed if circumstances excuse his premature filing. See Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918 (2007); Ross v. Blake, 136 S.Ct. 1850, 1856 (2016). The Supreme Court has identified three circumstances in which an administrative remedy is “unavailable” to a plaintiff, effectively excusing the exhaustion requirement: first, when prison “officers [are] unable or consistently unwilling to provide any relief;” second, when a grievance process is “so opaque” that it is “incapable of use;” and third, when prison officers “thwart inmates from taking advantage of a grievance process.” Id. at 1859-60. Additionally, the Sixth Circuit has held that plaintiffs may add newly-exhausted claims to an amended complaint when the original complaint was filed with at least one properly exhausted claim. Mattox v. Edelman, 851 F.3d 583, 595 (6th Cir. 2017). None of the exceptions to the PLRA's exhaustion requirement apply to Dahms.

         First, prison officials were not “unable or consistently unwilling to provide any relief” to Mr. Dahms. Ross, 136 S.Ct. at 1859. Although prison officials were unwilling to provide the specific relief sought (i.e. the exact medications prescribed by Dr. Castellanos), they provided alternative pain medication that, in Plaintiff's own words, “provide[d] relief.” (DN 32, p. 11). In addition to providing pain medication, prison medical staff also reviewed Mr. Dahms' psychiatric state, (DN 32, p. 4), treated the incision cite when Plaintiff complained of itching (DN 32, p. 6), transferred Plaintiff to a prison facility that provided physical therapy (DN 32, p. 7), provided Plaintiff with a wheelchair, (DN 32, p. 26), provided Plaintiff with a back brace, (DN 32, p. 28), and responded to each of Plaintiff's health grievances (DN 30-2, p. 20-83). Prison officials also transported Defendant to UKMC for follow-up ...

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