United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
K. CALDWELL, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...