Odom v. McKenzie et al

Filing 12

MEMORANDUM OPINION & ORDER, overruled as moot 10 MOTION for Order for service of summons and the complaint by Glenn D. Odom, II 2) Odom's claims against Commonwealth of KY and/or KDOC and his official capacity claims against Shawn McKenzi e, Adm. EKCC Segregation Unit, Gary Beckstrom, Warden; the Unknown EKCC Maintenance Supervisor, Ronald Everson, MD and Carol Cornett, LSCC Nurse Supervisor are DISMISSED WITH PREJUDICE; 3) Odom's Eighth Adm claim against Dr. Everson alleging den ial of medical treatment on 10/11/11 is DISMISSED WITH PREJUDICE 4) Dr. Everson shall resp to Odom's claims alleging a) denial of medical treatment in January 2012 b) denial of adequate exercise c) retaliation for filing grievances d) conspiracy to deprive him of his constitutional rights in violation of 42 USC 1985(3) and (e) negligent and intentional infliction of emotional distress 5) Cornett shall resp to Odom's individual capacity claims against her alleging a) denial of medical t reatment in January 2012 b) denial of adequate exercise c) retaliation for filing grievances d) conspiracy to deprive him of his constitutional rights in violation of 42 USC 1985(3) and (e) negligent and intentional infliction of emotional distgress under state law; 6) Beckstrom shall resp to Odom's Eighth Adm claims allegion a) deliberate indifference to a known safety hazard b) negligent and intentional infliction of emotional distress under state law 7) Odom's Eighth Amd and pendin g state law claims againt the known EKCC maintenance supervisor may proceed but Odom just idenitfy this individual w/in 120 days from entry of this order if he does not do so his federal and state claims against dft will be dismissed for failure to p rosecute 8) Odom's request for prel and perm injunctive relief is OVERRULED AS MOOT 9) Clerk shall forward by cert mail, return receipt requested one copy of complaint and this MO&O to Office of Gen Cnsl for KDOC; Gen Cnsl shall have 20 dys from entry of this order to complete and file a notice of waiver of service against any or all named dfts; if a waiver is not filed w/in 20 dys clerk submit the record for consideration; 10) the answer to comp shall be filed no later than 60 days after t he notice of waiver is filed; however if service is required court will enter an order directing USM to effectuate service of process and the answer must be filed no later than 20 dys 11) Odom keep clerk informed of current mailing address; failure m ay result in dismissal 12) for every further pldg Odom submits he shall serve a copy on dft or counsel and include a certificate of service; if Judge or Mag. Judge receives any document which has not been filed with clerk or fails to include a certificate of service; court will disregard the document. Signed by Judge Henry R. Wilhoit, Jr on 12/14/12.(SMT)cc: COR, Odom via USMail, Gen Cnsl w/ comp via cert mail return receipt requested

Eastern D1StI'1ct of Kentucky
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

F I LED

DEC 1" 2012
AT ASHLAND
ROBERT R. CARR
CLERK U.S. DISTRICT COURT

GLENN D. ODOM, II,
Plaintiff,

v.
SHAWN McKENZIE,et al.,

Defendants.

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Civil Action No. 12-CV-81-HRW

MEMORANDUM OPINION
AND ORDER

**** **** **** ****
Plaintiff Glenn D. Odom, II, is an inmate confined in the Kentucky State
Penitentiary in Eddyville, Kentucky. Proceeding without an attorney, Odom has filed
a complaint pursuant to 42 U.S.C. § 1983 challenging various conditions ofhis prior
confinement in the Eastern Kentucky Correctional Complex ("EKCC") in West
Liberty, Kentucky.

Odom has named as defendants: (1) Shawn McKenzie,

Administrator, EKCC Segregation Unit; (2) Gary Beckstrom, EKCC Warden; (3)
Unknown EKCC Maintenance Supervisor; (4) Ronald Everson, M.D.; (5) Carol
Cornett, Nurse Supervisor at the Little Sandy Correctional Complex ("LSCC"); and
(5) the "State ofKentucky Department ofCorrections." Odom asserts claims against
the prison officials in both their individual and official capacities.

1

The Court must conduct a preliminary review ofadorn's complaint because he
has been allowed to pay the filing fee in installments and is asserting claims against
government officials. 28 U.S.C. §§ 1915(e)(2)(B), 1915A. A district court must
dismiss any claim that is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from defendants who are immune from
such relief. McGore v. Wrigglesworth, 114 F.3d 601,607-08 (6th Cir. 1997).
The Court evaluates adorn's complaint under a more lenient standard because
he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007);

Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts
adorn's factual allegations as true, and liberally construes his legal claims in his
favor.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Having

reviewed the complaint, the Court will permit some of adorn's claims to proceed,
dismiss other claims, and will deny as moot adorn's motion seeking service of
summons and the complaint on the defendants.
FACTUAL ALLEGATIONS

adorn alleges that on September 19, 2011, he slipped and fell on a puddle of
water on the floor of his cell. He claims that the water originated from the nearby
shower area, seeped through the putty in the walls, and accumulated on the floor of
his cell. adorn asserts that prior to his slip and fall, he notified both Segregation Unit
2

Administrator Shawn McKenzie and the prison maintenance supervisor that the
seeping water was creating a hazardous situation and that they needed to address and
repair the problem. Odom alleges that because both defendants ignored his warnings
and permitted the condition to persist, they were deliberately indifferent to a known
safety hazard and caused him to fall on September 19,2011. Odom alleges that as a
result of his fall, he sustained a serious back injury and has experienced pain,
suffering, and emotional distress. Odom alleges that the actions of McKenzie and
the maintenance supervisor amounted to cruel and unusual punishment in violation
of the Eighth Amendment of the United States Constitution.
Odom contends that Dr. Everson denied him proper medical treatment for his
injuries and thus was deliberately indifferent to his serious physical needs in violation
of the Eighth Amendment. On October 10, 2011, Odom ran out of his Flexeril
medication and he states that a member of his family may have contacted the prison
"... to inquire about the inadequate medical treatment." [D. E. No.1, p. 4, ,-r 9] The
next day, when Odom was summoned for medical appointment, Everson allegedly
told him '''Don't ever threaten me with a lawyer! '" [Id., ,-r 10] Everson gave Odom
a 7-day prescription for Ibuprofen, told him to avoid using the stairs, and allegedly
said "I was an M.D. in Viet Nam and your back pain is nothing compared to ... I will
not see you again for your back pain. Get out of my office. '" [Id.,,-r 11]
3

Odom asserts that LSCC Nurse Practitioner Cornett was deliberately indifferent
to his serious physical needs because she refused him medical treatment for his back
injury. Odom alleges that after he arrived at the LSCC on December 28, 2011, he
submitted a request for medical treatment for his back pain, and that on January 12,
2012, Cornett came to the EKCC segregation unit ".. to speak (non-contact) with
plaintiff about back pain." [Id., ~ 13] Cornett allegedly refused to acknowledge that
he injured his back when he fell on September 19, 2011, instead noting in his medical
chart that his back problems, ifany, stemmed from his brick-laying job years earlier;
refused to examine him or inquire about his symptoms; and refused to provide him
with any medical treatment for his back injury. Odom alleges that the fact that Dr.
Everson was Cornett's supervisor "...played a huge role in her decision not to treat
plaintiff." [Id., ~ 17] On January 19,2012, Odom saw Cornett for a scrotum injury,
but she again refused to treat his back pain, telling him to ''' ...be quiet about his
back' or 'leave the office.'" [Id., p. 5, ~ 19]
Odom alleges that Everson and Cornett are currently depriving him ofhis right
to adequate exercise, which he defines as "jumping jacks and running," id., p. 7, ~ 29,
and that "the continuous denial of adequate and much needed exercise" is causing
him to experience "serious and extremely unsafe health complications." [Id.,

~

30].

Odom further claims that Everson and Cornett retaliated against him because he had
4

"... filed complaints against them and had family call the facility ...." [Id., p. 6,

~

24] This claim falls under the First Amendment of the United States Constitution,
which guarantees access to the courts.
Odom fully exhausted his claim alleging a dangerous premises condition
through the KDOC's administrative remedy process. [D. E. Nos. 1-7 through 1-10].
As for his Eighth Amendment claim alleging the denial medical treatment, Odom
stated as follows:
Plaintiff was later placed on grievance restriction and still filed
grievances on medical treatment at E.K.C.C. and L.S.C.C. Such
grievances were rejected or ignored. Plaintiff wrote Nurse Practitioner
Cornett a two (2) page letter asking for medical attention and later wrote
Warden J. Meko regarding such denial. Plaintiff has exhausted all
possible avenues for relief, and more."
[Id., pp. 2-3,

~

2]

In addition to asserting Eighth Amendment deliberate indifference and First
Amendment retaliation claims, Odom alleges that the defendants are liable to him
under state law theories of negligent and intentional infliction of emotional distress.
Odom further alleges that the defendants violated 42 U.S.C. § 1985(3), which
prohibits two or more persons from conspiring for the purposes of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws.

5

Odom seeks substantial compensatory damages and punitive damages from the
prison officials and the KDOC, and a preliminary and permanent injunction requiring
EKCC officials to maintain the premises and repair any known defects to prevent
future injuries to inmates.
DISCUSSION

Odom's constitutional claims against the State ofKentucky and/or the KDOC
and the EKCC and LSCC officials in their official capacities will be dismissed
because the Eleventh Amendment to the U.S. Constitution specifically prohibits
federal courts from entertaining suits for money damages brought directly against the
state, its agencies, and state officials sued in their official capacities. Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,687-88 (1993); Will
v. Mich. Dep'tofState Police, 491 U.S. 58, 71 (1989); Kentuclryv. Graham, 473 U.S.
159, 169 (1985). In addition, state officials sued in their official capacities for
monetary damages are not considered "persons" within the meaning of 42 U.S.C. §
1983 claim, Will, 491 U.S. at 71; see also, Matthews v. Jones, 35 F.3d 1046, 1049
(6th Cir. 1994). Odom's claim against the KDOC and prison officers in their official
capacity claims will therefore be dismissed for failure to state a claim upon which
relief can be granted. 28 U.S.C. § 1915A(b)(1).
Odom asserts various medical claims against Dr. Everson. His first claim, that
6

Everson violated his Eighth Amendment rights on October 11, 2011, will be
dismissed because Odom has not alleged facts demonstrating that on that date,
Everson was deliberately indifferent to his serious medical condition. Odom did not
allege that Everson denied him medical treatment on that date, only that he disagreed
with Everson's diagnosis and his decision not to prescribe Flexeril medication.
To establish a deliberate indifference claim, the complained-of conduct"...
must be more culpable than mere negligence; it must demonstrate deliberateness
tantamount to intent to punish." Horn v. Madison County Fiscal Court, 22 F.3d 653,
660 (6th Cir. 1994). Odom's October 11,2011, claim against Dr. Everson does not
rise to that level. Odom complains only that Dr. Everson prescribed him Ibuprofen
instead ofFlexerii, but such action is insufficient to impose liability under the Eighth
Amendment. "[W]here a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts are generally reluctant
to second guess medical judgments and to constitutionalize claims that sound in state
tort law." Graham ex rei. Estate ofGraham v. County ofWashtenaw, 358 F.3d 377,
385 (6th Cir. 2004); Westlake v. Lucas, 537 F.2d 857,860 n.5 (6th Cir. 1976)).
When a prisoner-plaintiff such as Odom has received medical attention despite
his allegations otherwise, he has not asserted an Eighth Amendment claim of
deliberate indifference. McCraryv. Patton, No. 07-CV-52, 2008 WL 834367, at *5
7

(E.D. Ky. March 25,2008); see Estelle v. Gamble, 429 U.S. 97, 107 (1976) ("A
medical decision not to order an X -ray, or like measures, does not represent cruel and
unusual punishment. At most it is medical malpractice, and as such the proper forum
is the state court...."). The mere difference of opinion between a prisoner and the
prison medical staff concerning the his medical treatment does not support an Eighth
Amendment claim. Wilson v. Wilkinson, 62 F. App'x 590, 592 (6th Cir. 2003);

Wooley v. Campbell, 63 F. App'x 789, 790 (6th Cir. 2003).
Odom asserts three other constitutional claims against Dr. Everson, to which
Everson will be required to respond in his individual capacity. Odom alleges: (1)
that as Cornett's direct supervisor, Everson knew ofand approved ofCornett's refusal
to treat his back pain two times in January 2012 [D. E. No.1, pp. 5, 17] and thus is
vicariously liable for Corentt's actions in denying him medical treatment at those
times; (2) that Everson denied (and is currently denying) him adequate exercise
opportunities; and (3) that Everson retaliated against him because he had filed
complaints against him and Cornett.
Odom also alleges that the defendants violated 42 U.S.C. § 1985(3). Odom did
not specifically refer to § 1985(3) in connection with Everson and Cornett, but
broadly construing Odom's allegations, he alleges that in January 2012, Everson and
Cornett conspired to retaliate against him and/or to deny him needed medical
8

treatment in violation of his First and/or Eighth Amendment rights. It is unclear
whether Odom exhausted either his three remaining constitutional claims or his
§ 1985(3) conspiracy claims, but Everson will be required to respond to these claims.
If the issue of exhaustion is relevant, he may address it at that time.
LSCC Nurse Practitioner Cornett will be required to respond to Odom's
individual capacity claims against her. Odom does not merely challenge the adequacy
ofCornett's medical treatment, he alleges that on two occasions in January 2012, she
actually refused to examine him and treat his back pain. Odom also alleges that
Cornett retaliated against him for filing grievances about her and Everson and that she
has in the past, and currently is, denying him exercise opportunities. Accepting
Odom's factual allegation as true, Twombly, 550 U.S. at 555-56, he has alleged
possible constitutional claims against Cornett, who will be required to respond to
both his First and Eighth Amendment claims, his pendant state law claims alleging
infliction of negligent and emotional distress, and his § 1985(3) conspiracy claims.
Odom alleges that Warden Beckstrom knew about, encouraged, but failed to
correct, the leaking-water condition which Odom claims caused him to slip and fall
on September 19,2011. [D. E. No.1, p. 6,,-r 23] Odom has alleged a possible Eighth
Amendment constitutional claim on this issue and Beckstrom must respond to this
claim and to Odom's pendant state law claims alleging negligent and intentional
9

infliction of emotional distress.
adorn's Eighth Amendment and pendent state law claims against the unknown
EKCC maintenance supervisor will also be allowed to proceed. However, adorn
must identify and serve process upon this individual within 120 days from the date
of entry of this Order; ifhe fails to do so, his claims against the EKCC maintenance
supervisor will be dismissed for failure to prosecute under Federal Rule of Civil
Procedure 4(m).
Finally, adorn seeks a preliminary and permanent injunction directing EKCC
officials to properly maintain the prison facility. However, adorn is no longer
confined at EKCC, and once a prisoner is transferred to a different facility, his claim
for injunctive relief becomes moot. Raines v. Lomax, 66 F. App'x 544, 545 (6th Cir.
2003); Wilson v. Yaklich, 148 F.3d 596,601 (6th Cir. 1998); Price v. Caruso, 451 F.

Supp. 2d 889, 901 (E.D. Mich. 2006). adorn's request for preliminary and permanent
injunctive relief will therefore be denied as moot.
CONCLUSION

Accordingly, IT IS ORDERED as follows:

1.

adorn's motion seeking service of summons and the complaint on the

defendants [D. E. No. 10] is OVERRULED as MOOT;
2.

adorn's claims against the Commonwealth of Kentucky and/or the
10

KDOC, and his official capacity claims against Shawn McKenzie, Administrator,
EKCC Segregation Unit; Gary Beckstrom, Warden; the Unknown EKCC
Maintenance Supervisor; Ronald Everson, M.D.; and Carol Cornett, LSCC Nurse
Supervisor, are DISMISSED WITH PREJUDICE;
3.

Odom's Eighth Amendment claim against Dr. Everson alleging the

denial of medical treatment on October 11, 2011, is DISMISSED WITH

PREJUDICE;
4.

Dr. Everson shall respond to Odom's claims alleging (a) denial of

medical treatment in January 2012; (b) the denial ofadequate exercise; (c) retaliation
for filing grievances; (d) conspiracy to deprive him of his constitutional rights in
violation of 42 U.S.C. § 1985(3), and (e) negligent and intentional infliction of
emotional distress;
5.

Cornett shall respond to Odom's individual capacity claims against her

alleging (a) denial of medical treatment in January 2012; (b) the denial of adequate
exercise; (c) retaliation for filing grievances; (d) conspiracy to deprive him of his
constitutional rights in violation of 42 U.S.C. § 1985(3), and (e) negligent and
intentional infliction of emotional distress under state law;
6.

Beckstrom shall respond to Odom's Eighth Amendment claims alleging

(a) deliberate indifference to a known safety hazard, and (b) negligent and intentional
11

infliction of emotional distress under state law;
7.

Odom' s Eighth Amendment and pendent state law claims against the

unknown EKCC maintenance supervisor may proceed but Odom must identify this
individual within 120 days from the date ofentry ofthis Order. Ifhe does not do so,
his federal and state claims against this defendant will be dismissed for failure to
prosecute under Federal Rule of Civil Procedure 4(m);
8.

Odom's request for preliminary and permanent injunctive reliefis

OVERRULED as MOOT;

9.

The Clerk of the Court shall forward by certified mail, return receipt

requested, one copy of the complaint [D. E. No.1] and this Memorandum Opinion
and Order to the Office of General Counsel for the Kentucky Department of
Corrections, Frankfort, Kentucky. General Counsel shall have 20 days from the date
of entry of this order to complete and file a notice of waiver of service against any or
all of the named defendants. If a waiver is not filed within 20 days, the Clerk shall
SUBMIT the record for consideration;

10.

The answer to the complaint shall be filed no later than 60 days after the

notice of waiver of service is filed. However, if service is required as to any
defendant, the Court will enter an order directing the United States Marshals Service
to effectuate service ofprocess and the answer(s) must be filed no later than 20 days
12

after service of process;
11.

Odom shall keep the Clerk ofthe Court informed of his current mailing

address. Failure to notify the Clerk of any address change may result in a

dismissal of this case; and
12.

For every further pleading or other document Odom submits for

consideration, he shall serve upon each defendant, or, if appearance has been entered
by counsel, upon each attorney, a copy of the pleading or other document. Odom
shall send the original papers to be filed with the Clerk of the Court together with a
certificate stating the date on which he mailed a true and correct copy ofhis document
to each defendant or their counsel. If a District Judge or Magistrate Judge

receives any documen t which has not been filed with the Clerk or which has been
filed but does not include the certificate of service of copies, the Court will
disregard the document.
This December 14,2012.

* -Henry R.
;\
~ States DIstnct Judg£
-i~

d~/ Signed BY'

\\;IOOd, Jr.

Jnited

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