Adams v. Cunnagin

          MEMORANDUM OPINION AND ORDER

          KAREN K. CALDWELL, UNITED STATES DISTRICT JUDGE.

         Plaintiff Darrell Wayne Adams is an inmate confined at the United States Penitentiary-McCreary (“USP-McCreary”) in Pine Knot, Kentucky. Proceeding without counsel, Adams filed a civil rights complaint pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), alleging that Defendants Carrie Cunnagin, Rhonda Jones, Jennifer West, Mitchell Dyer, and J. King were deliberately indifferent to his serious medical needs in violation of Adams' Eighth Amendment rights. [R. 1] Adams subsequently filed a motion seeking to amend his complaint to add a claim of retaliation. [R. 26]^[1]

         Defendants first filed a motion to dismiss or, in the alternative, for summary judgment on April 8, 2019. [R. 22] On April 9, 2019, the Court entered an order sua sponte extending the time for Adams to respond to this motion and directing Adams to file his response to this motion within 45 days. [R. 23] On April 19, 2019, Adams filed his first motion for extension of time to file his response, claiming that he did not timely receive a copy of Defendants' motion. [R. 24] The Court granted this motion on April 22, 2019, and directed Adams to file his response within 45 days from the date of the April 22 Order. [R. 25] However, rather than file a response, Adams instead filed a motion to amend his complaint on May 6, 2019. [R. 26] Although the “amended complaint” adds a claim that Defendants confiscated Adams' cane in retaliation for his complaints regarding his medical care, the amended complaint was otherwise substantively nearly identical to Adams' original complaint. Because of the similarities between Adams' original and amended complaints, Defendants filed a renewed motion to dismiss or, in the alternative, motion for summary judgment on May 29, 2019, [R. 30] incorporating its previous motion [R. 22], while also addressing the new substantive allegations made in Adams' amended complaint.

         On May 30, 2019, the Court entered an Order sua sponte extending the time for Adams to respond to Defendants' renewed motion and directing him to file a response to the motion within 28 days. [R. 31] On June 17, 2019, Adams filed a second motion for extension of time to file his response [R. 32], which the Court granted on June 20, 2019. [R. 33] In this Order, the Court stated that, although Defendants' renewed motion adds four short paragraphs to address the new claim made by Adams in his amended complaint, the majority of Defendants' arguments were set forth in their original motion that had been filed two months previously, thus only a very limited extension of time was warranted. Thus, the Court ordered Adams to file his response on or before July 12, 2019 and warned him that no further extensions would be granted. [Id.]

         Undeterred, Adams filed two more extensions of time [R. 34, 36], both of which were denied. [R. 35, 37] Even so, over two months have passed since the expiration of the extended deadline and Adams still has not filed a response to Defendants' motion. Without question, the time period for doing so has expired. Thus, this matter is ripe for review.

         I.

         In his original complaint [R. 1, 1-1], Adams alleges that he suffers from numerous medical conditions, including sharp pains and throbbing in his right ankle resulting from two Achilles tendon surgeries, a past diagnosis of prostate cancer for which he was treated with radiation and still causes him pain, lower back and waist pains, and high blood pressure. He states that, as a result of these conditions, since November 2000, he has been prescribed the following medications: acetaminophen/codeine 300/30 mg; Tylenol 3 to be taken twice daily; calcium carbophil (600 mg); docusate sodium (100mg); fluticasone prop. (50 mg) CMI nasal spray; pyridoxine HCI (50mg); stool softener; and medication to control his blood pressure. He further states that, as a result of a past laser surgery on his eyes, his eyes are light-sensitive and he requires tinted eye glasses.

         According to Adams, he was transferred to USP-McCreary in July 2017 and placed under the care of Physician's Assistant (“P.A.”) Jennifer West. He claims that, under her care, his medications were systematically discontinued. He alleges that he filed multiple complaints about the discontinuance of his medication, which were reviewed by Carrie Cunnigan, whom he claims informed him that he would not get his medications at USP-McCreary.

         Adams further alleges that he was reassigned to P.A. Mitchell Dyre for medical treatment. Adams claims that he made numerous complaints to Dyre, who instructed him to sign up for sick-call. However, during the sick-call visits, Dyre allegedly informed Adams that his condition was not a sick-call issue, refused to treat Adams, and “maliciously without authorization to do so” charged Adams co-payments for medical visits for chronic care medical issues, which Adams claims is contrary to Bureau of Prisons (“BOP”) policy. Adams states that he believes that Dyre charged Adams the co-payments to discourage him from seeking medical attention.

         Next, Adams claims that, at a visit for “sick call, ” Rhonda Jones instructed Adams to give her his glasses. After Adams informed her that they were prescription glasses, he alleges that Jones instructed J. King to seize his glasses, which J. King did. Adams alleges on information and belief that Jones destroyed Adams' glasses as retaliation for complaints Adams filed against the medical department. He also alleges that he is being denied properly prescribed medications by Jones and Dyre and that he believes that Jones is biased and abusing her authority to withhold proper medications based on her opinion that inmates are not entitled to the same medical treatment as non-prisoners.

         Based on these allegations, Adams alleges that Defendants' conduct constitutes deliberate indifference to Adams' serious medical needs, resulting in needless pain, suffering and mental duress, in violation of the Eighth Amendment. He seeks declaratory relief, injunctive relief, and compensatory and punitive damages.

         In his amended complaint, Adams essentially repeats the allegations made in his original complaint, with two notable differences. With respect to his claim that Defendants discontinued his medications, he clarifies that he was told by Defendants to try duloxetine for pain instead of Tylenol #3. However, according to Adams, when he had tried duloxetine in the past, it upset his stomach, caused heartburn and did not help his pain. He alleges that, despite his protests, Defendants “insisted” that he take it, so he tried it a single time and found that it did not help his pain and caused an upset stomach. Adams claims that, despite his response to the duloxetine, Defendants “refused” to re-prescribe Tylenol #3.

         He further alleges that he suffers from lower back pain and walks with the aid of a cane that he needs for balance and assistance with walking. He claims that Defendants have confiscated his cane in retaliation for his filing of his lawsuit. According to Adams, the stated reason for the confiscation of his cane is because he told the medical staff that he could do 300 pushups, to which their response was that, if he could do 300 pushups, then he did not need the cane. He alleges that he then explained that a doctor had recommended that he do the pushups for his degenerative back condition, but the pushups did not help his ankle, which is one of the reasons that he needed the cane. He claims that Cunnigan told him that, “I'm taking your cane. Put that in your lawsuit.” He alleges that this is also a violation of his Eighth Amendment rights.

         In their original motion to dismiss or, in the alternative, motion for summary judgment [R. 22], Defendants argue that Adams' complaint fails to state a claim for which relief may be granted for violation of the Eighth Amendment, nor does it state a claim for retaliation under the First Amendment. In addition, Defendants argue that Adams failed to exhaust his administrative remedies with respect to his claim that his eyeglasses were confiscated; fails to state a claim with respect to the payment required for his medications; and fails to overcome Defendants' qualified immunity defense. Finally, in the alternative, Defendants argue that the record demonstrates that the prison medical staff were not deliberately indifferent to Adams' condition, thus summary judgment is appropriate.

         In their renewed motion to dismiss or, in the alternative, motion for summary judgment [R. 30], Defendants incorporate by reference their prior motion and further argue that Adams' amended complaint also fails to state a claim for an Eighth Amendment violation. In addition, with respect to Adams' claim that Defendants retaliated against him by confiscating his cane, Defendants argue that this claim is not cognizable under Bivens; Adams failed to exhaust his administrative remedies regarding his cane confiscation claim; and Defendants are entitled to qualified immunity. In the alternative, Defendants submit medical records showing that Adams' physicians have treated him and determined that a cane was not medically indicated, thus his claim represents a disagreement with his medical treatment, which does not rise to the level of an Eighth Amendment violation. Thus, Defendants argue that they are entitled to summary judgment on Adams' claims.

         II.

         Before addressing the merits of Defendants' motions, the Court notes that Adams was warned on multiple occasions that, should he fail to file a response to Defendants' motions, the Court may dismiss his case for failure to prosecute, see Fed. R. Civ. P. 41(b), or grant Defendants' motion for any reason adequately supported by the record, see Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). [R. 23, 25, 31, 33] Notwithstanding this clear warning, Adams failed to respond to either of Defendants' dispositive motions. Dismissal is generally warranted where the party fails to act in the face of a clear prior warning that the case would be dismissed. Bowles v. City of Cleveland, 129 Fed.Appx. 239, 244 (6th Cir. 2005). Thus, Adams' failure to respond alone would justify dismissal of his Complaint. Regardless, in the interest of completeness and finality, the Court will also consider the substantive arguments set forth by Defendants in their motions to dismiss or, in the alternative, motion for summary judgment.

         III.

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the plaintiff's complaint. Gardner v. Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir. 2014). When addressing a motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and accepts as true all ‘well-pleaded facts' in the complaint. D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because Adams is proceeding without the benefit of an attorney, the Court reads his ...