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McPherson v. Ramey

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

December 16, 2019

BRITTON LEVON MCPHERSON, PLAINTIFF
v.
KAREN RAMEY, et al., DEFENDANT

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge.

         This matter is before the Court on Defendants Correct Care Solutions, Lester Lewis, Kelly Neeley, and Karen Ramey's Motion for Summary Judgment. [DN 33]. Plaintiff Britton McPherson responded, [DN 41], and Defendants replied, [DN 42]. This matter is ripe for adjudication. For the reasons set forth herein, Defendants' Motion for Summary Judgment, [DN 33], is GRANTED.

         BACKGROUND

         Beginning on December 28, 2017, Plaintiff claims he reported to Kentucky State Penitentiary (“KSP”) staff that he was experiencing pain and swelling in his left arm, as well as vomiting. [DN 29 at 152]. Over the course of the next several days, Plaintiff was treated by prison officials with pain killers, antibiotics, and warm compresses. Id. at 152-56. Unfortunately, Plaintiff's condition continued to worsen until he was transferred to Baptist Paducah's emergency room where he was diagnosed with necrotizing fasciitis. Id. at 155. Plaintiff was then transferred to the University of Kentucky for further evaluation and treatment before eventually being discharged to Kentucky State Reformatory. Id. at 155-56.

         On February 7, 2019, Plaintiff filed a Complaint against Nurse Practitioner Karen Ramey, Dr. Lester Lewis, Nurse Kelly Neeley, and an unknown Corrections Officer at KSP, both in their official and individual capacities, as well as former Kentucky Department of Corrections Commissioner James Erwin in his official capacity, and Correct Care Solutions (“CCS”) alleging that they violated his Eighth Amendment rights through deliberate indifference to a serious medical need. [DN 1]. Moreover, Plaintiff claims his constitutional rights were impaired by the Kentucky Department of Corrections and/or CCS's policies and procedures, or lack thereof. Id. He seeks compensatory and punitive damages and injunctive relief. Id.

         The Court conducted an initial review of the Complaint pursuant to 28 U.S.C. § 1915A. [DN 6]. It dismissed the official-capacity claims for damages against Defendant Erwin and the unknown KSP officer for failure to state a claim upon which relief may be granted. Id. Subsequently, Plaintiff filed an amended complaint, [DN 29], and Defendants CCS, Lewis, Neeley, and Ramey moved for summary judgment, [DN 33].

         LEGAL STANDARD

         Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “may not make credibility determinations nor weigh the evidence when determining whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52). The moving party must shoulder the burden of showing the absence of a genuine dispute of material fact as to at least one essential element of the nonmovant's claim or defense. Fed.R.Civ.P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Assuming the moving party satisfies its burden of production, the nonmovant “must-by deposition, answers to interrogatories, affidavits, and admissions on file-show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex Corp., 477 U.S. at 324).

         Additionally, the Court acknowledges that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by attorneys. See Haines v. Kerner, 404 U.S. 519 (1972). The duty to be less stringent with pro se complainants, however, “does not require [the Court] to conjure up unpled allegations, ” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted), nor to create a claim for a pro se plaintiff, Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975).

         DISCUSSION

         A. Exhaustion of Administrative Remedies

         The Prison Litigation Reform Act (“PLRA”) bars a civil rights action challenging prison conditions until the prisoner exhausts “such administrative remedies as are available.” 42 U.S.C. § 1997e(a); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”). In order to exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules established by state law. Jones, 549 U.S. at 218-19. “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, “failure to exhaust administrative remedies under the PLRA is an affirmative defense that must be established by the defendants.” Napier v. Laurel Cty. Ky., 636 F.3d 218, 225 (6th Cir. 2011) (citing Jones, 549 U.S. at 204).

         In this case, Plaintiff was discharged from UK Healthcare and was transferred to Kentucky State Reformatory on January 8, 2018. [DN 33 at 235]. Pursuant to Kentucky Corrections Policies and Procedures (“CPP”) § 14.6, Plaintiff was then required to file a grievance relating to this incident within five working days. [DN 33-5]. The record shows that Plaintiff completed and signed an inmate grievance form relating to this incident on January 11, 2018. [DN 33-2 at 255]. However, the Grievance Aide did not sign the grievance form until January 16, 2018. Id. A typed version of the grievance form was signed and dated by both Plaintiff and the Grievance Aide on January 19, 2018. Id. at 252. The typed grievance form states that it was received by the Grievance Aide on January 16, 2018. Id. The Inmate Grievance Office issued a Grievance Rejection Notification on February 1, 2018 stating that Plaintiff's grievance had been deemed non-grievable because it was filed more than five working days after the incident. Id. at 251. Plaintiff filed a second grievance relating to his medical issues in April 2018. Id. at 257. It was also rejected by prison officials as untimely. Id. at 256.

         Defendants argue that because Plaintiff's grievance requests were dismissed as untimely, he failed to comply with the PLRA's exhaustion requirement and summary judgment is appropriate. [DN 33 at 238]. It is clear that Plaintiff's second grievance, filed months after the incident in question, is untimely pursuant to CPP § 14.6. However, Plaintiff contests the timeliness of his initial grievance. [DN 41 at 379]. Specifically, Plaintiff asserts that on January 9, 2018, he signed up to see a grievance aide. Id. at 380. On January 11, 2018, the Grievance Aide came to the hospital facility where Plaintiff was housed and provided him with a grievance form. Id. Plaintiff claims he completed, signed, dated, and returned the form to the Aide on January 11, 2018. Id. While he acknowledges that the typed form was not signed until January 19, 2018, Plaintiff argues that this was outside of his control. Id. Plaintiff contends his grievance was timely because he signed the handwritten grievance form within three days of returning from the hospital. Id. In reply, Defendants argue that “Plaintiff has ...


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