Livingston v. Everson et al
MEMORANDUM OPINION & ORDER: IT IS ORDERED (1) Plaintiff's 7 Motion for Supplement of New Evidence/Request for Order of Protection & 10 Memorandum of Support & New Evidence & Motion for Temporary Protective Order are DENIED; (2 ) Plaintiff's 13 Motion to Convert to Civil Action is DENIED; (3) Defendant Don Bottom's 16 Motion to Dismiss is GRANTED; (4) Plaintiff's 24 Motion for Emergency Hearing/Memorandum of New Evidence is DENIED WITHO UT PREJUDICE; (5) Plaintiff's 26 Motion for Summary Judgment is DENIED; (6) Court will enter an appropriate judgment; (7) matter is STRICKEN from docket. Signed by Judge Joseph M. Hood on 08/21/2012.(DAK)cc: COR,Pro Se Pla(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
HENRY BECK LIVINGSTON,
DR. RONALD EVERSON, et al.,
Civil Action No. 11-CV-414-JMH
**** **** **** ****
Plaintiff Henry Beck Livingston is an inmate formerly incarcerated at the Blackburn
Correctional Complex (“BCC”) in Lexington, Kentucky, who has recently been transferred to the
Kentucky State Reformatory (“KSR”) in LaGrange, Kentucky. While an inmate at BCC,
Livingston, proceeding without counsel, filed an Emergency Affidavit [R. 1], which the Court
construed as a civil rights action filed pursuant to 42 U.S.C. § 1983. In his affidavit, Livingston
contended that the defendants had acted with deliberate indifference to his serious medical needs,
including treatment for obesity, cardiomyopathy, Hodgkins lymphoma, and chronic back pain, and
he sought injunctive relief to obtain medical care. [R. 1 at 3]
Livingston subsequently filed a “Motion of Supplement of New Evidence and Request for
Order of Protection,” in which he alleged that the defendants had retaliated against him for filing
his complaint. He stated that he was in fear of further retaliation and requested an emergency
hearing and a preliminary injunction/protective order to prevent further retaliation. [R. 7]
The Court screened his civil rights complaints pursuant to 28 U.S.C. § 1915A, and issued
summons to BCC Warden Don Bottom, directing that a response be filed to Livingston’s complaint
and his motion for a injunctive relief. Warden Bottom has filed a response and moved to dismiss
the complaint and to deny the motion for injunctive relief. [R. 16] Livingston has responded to the
Warden’s motion [R. 19, 20] and the warden has filed a reply in further support of his motion.
[R. 25] Having reviewed the submissions of the parties, the Court will dismiss Livingston’s
complaint and deny his motions for injunctive relief.
Livingston, a former world-class weightlifter, has had a plethora of medical/health issues.
On June 1, 2005, Dr. Geetha Bhat, Ph.D., M.D., a Professor of Medicine at the University of
Louisville and Director of the Heart Failure and Cardiac Transplant Center, evaluated Livingston
for a possible heart transplant. Dr. Bhat noted that his past medical history includes nonischemic
cardiomyopathy in March 2004; chronic obstructive pulmonary disease (“COPD”); hypertension;
diabetes mellitus; chronic renal insufficiency; prostate hyperthrophy; prior history of deep venous
thrombosis with pulmonary embolism; prior history of cardiac arrest; history of Hodgkin’s
lymphoma; obstructive sleep apnea; and frequent upper respiratory tract infections with current
complaint of bronchitis and nasal congestion. [R. 1-1 at 2, 4] Dr. Bhat concluded that Livingston
was not a candidate for a heart transplant because he was morbidly obese, weighing 437 pounds.
[R. 1-1 at 2] Dr. Bhat’s report states, in part:
. . . At the present time, the patient’s weight is prohibitively high for a
transplantation. At this time, we would recommend referral for gastric bypass
surgery. We will refer the patient to Dr. Gerald Larson at University Surgical
Services for further evaluation regarding this. The patient is currently on an
excellent medical regimen, and would recommend continuing on with this regiment
with particular attention at this time on improved blood pressure control. We will
refer the patient to Dr. McConnell to re-evaluate the patient regarding his obstructive
sleep apnea, and for possible C-PAP. Would recommend gastric bypass evaluation
after the patient’s pulmonary status has been optimized.
After this report was issued, Livingston received a pacemaker for his heart; has had bilateral
knee arthroscopies; and has had gastric bypass surgery. [R. 1-3 at 9] By December 17, 2009,
Livingston’s weight had dropped from 437 to 357 pounds. [R. 1-3 at 10] As of July 12, 2012, his
weight had dropped to 302 pounds. [R. 28-8 at 1]
Livingston claims that he needs knee replacement surgery so that he can become more
physically active, lose more weight, and become a viable candidate for a heart transplant. He
contends that prison officials, by refusing to approve him for a medical furlough so that he can have
knee replacement surgery at his own expense, have been deliberately indifferent to his serious
medical needs. Livingston requests that the Court enter an injunction compelling the Kentucky
Department of Corrections (“KDOC”) to either provide the knee replacement surgery for him or to
place him on medical furlough so he can obtain the surgery at his own expense.
A plaintiff bears the burden of establishing that he is entitled to a preliminary injunction.
Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (“A
preliminary injunction is an extraordinary remedy which should be granted only if the movant
carries his or her burden of proving that the circumstances clearly demand it.”); Leary v. Daeschner,
228 F.3d 729, 739 (6th Cir. 2000) (“[T]he proof required for the plaintiff to obtain a preliminary
injunction is much more stringent than the proof required to survive a summary judgment motion.”).
In addressing a motion for a preliminary injunction, a court should consider: (1) the
likelihood that the movant will succeed on the merits; (2) whether the movant will suffer irreparable
harm without the injunction; (3) the probability that granting the injunction will cause substantial
harm to others; and (4) whether the public interest will be advanced by issuing the injunction. Six
Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir. 1997). “These factors
are not prerequisites, but are factors that are to be balanced against each other.” Overstreet, 305
F.3d at 573. Notwithstanding this balancing approach, however, the likelihood of success and
irreparable harm factors predominate the preliminary injunction inquiry. “Although no one factor
is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.”
Gonzales v. National Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000).
In order to demonstrate that he is likely to succeed on the merits, Livingston must provide
evidence strongly tending to prove that the failure to render the medical care he is requesting
amounts to “cruel and unusual punishment” in violation of the Eighth Amendment. To do so, he
must establish that prison medical staff acted with “deliberate indifference” to his serious medical
needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). This is a knowing, culpable state of mind
which is shown only where the prisoner’s health care provider demonstrates an intentional disregard
for an excessive risk of harm to the inmate, such as by intentionally preventing the inmate from
receiving prescribed treatment or intentionally delaying him access to needed medical care. Farmer
v. Brennan, 511 U.S. 825, 837 (1994).
To support his request for injunctive relief, Livingston has provided medical records which
document his health issues dating back to 2004, including letters from physicians which indicate
obesity and significant heart problems in March 2004. To support his claim that the defendants have
acted with deliberate indifference in addressing his medical issues, Livingston places primary
reliance upon the report of Dr. Kevin Pearce, a family practice physician who examined him in
October 2010. Dr. Pearce opined that Livingston should have knee replacement surgery; however,
it is unclear from his report if he performed a knee examination. Dr. Pearce’s report states, in
relevant part, that:
He is at increased risk of death from his underlying medical problems due to
immobility caused by [degenerative joint disease] of the knees.
He needs either a medical furlough or community-custody for definitive surgical
[treatment] of his knees with concurrent medical consultation and management of his
chronic medical problems perioperatively, under his own insurance, if necessary.
[R. 1-6 at 1]
Prior to Dr. Pearce’s examination, Dr. Navin Kilambi of Orthopaedic Associates/Jewish
Physician Group evaluated Livingston on December 17, 2009. [R. 1-3 at 9-10] His report
documents Livingston’s knee problems and suggests possible treatment options. The “Plan” section
of Dr. Kilambi’s report states:
PLAN: I have counseled the patient that he is at a high risk for any invasive
procedure. He understands that. I would recommend we get an MRI to look for
loose body or recurrent tear of the meniscus and if that is the case we could consider
arthroscopy understanding there is a significant risk for major complications with
this patient including death. He is very adamant about seeking arthroscopic care if
at all possible and really relates he does not care about the level of the risk because
he feels like he is in peak position as he can right now medically to get this done and
he has been evaluated by his cardiologist and “cleared” to try to proceed with an
arthroscopy. Thus, we will proceed with a CT scan arthrogram CT, which may not
give us much information as the MRI, but since he does have a pacemaker, this
should give best information and depending on the nature of that we will decide
treatment options, arthroscopic versus injectable, but he is going to have some
findings of significance for me to proceed with an arthroscopy with these risks.
Id. at 10. (emphasis added). Livingston had a CT arthrogram, and Dr. Kilambi examined him again
on December 31, 2009, and injected his knee with an anti-inflammatory steroid for pain relief. The
“Plan” section of that report states:
PLAN: Thus, it is very difficult to ascertain if arthroscopy will help him. So initially
we are going to put him on some Voltaren again which he has taken in the past, 5 to
7 days cycles and then rest his stomach a little bit because he does take Prilosec
because of irritability in his GI tract. We will also inject the knee today with antiinflammatory steroid to see if we can get some temporary relief, he had that a couple
of months ago, and with this combination we are going to see if we can cool it down.
If he continues to have mechanical symptoms or no pain relief, we will have to
consider arthroscopic surgery understanding that there is a high risk for this patient
with multiple medical problems, but we are going to try and stop these mechanical
symptoms. He understands that in the long term knee replacement surgery is likely
his best treatment for more major surgery.
[R. 1-3 at 13 (emphasis added)]
Subsequently, Livingston has seen multiple medical providers both at BCC and at KDOC’s
medical facility, Kentucky State Reformatory. All of these medical providers concluded that
conservative management of Livingston’s condition was appropriate at the time. Additionally, a
committee of all of the KDOC’s medical providers considered his case; their consensus opinion was
that conservative management was appropriate. [R. 25-1]
The KDOC’s medical staff has continued to monitor Livingston’s progress to determine if
there has been sufficient improvement in his condition to make him a viable candidate for knee
replacement surgery. On June 26, 2012, Dr. Whayne, a cardiologist at the University of Kentucky
Cardiology Clinic examined Livingston and recommended that he undergo tests to determine
whether he might be healthy enough to have this surgery. Id. Based on the report of Dr. Whanye’s
examination, Dr. Doug Crall, KDOC Medical Director, advises that Livingston will be scheduled
to see an orthopedic surgeon for re-evaluation of his knees. Dr. Crall estimated that it would take
six to eight weeks to schedule that appointment with a specialist for Livingston. [R. 25-1 at 1] The
next step in Livingston’s medical care will depend upon the surgeon’s recommendations. Id.
The foregoing history of Livingston’s medical treatment fails to establish that prison staff
acted with “deliberate indifference” to his serious medical needs. It is well-established that a
prisoner cannot show deliberate indifference where he or she is being provided with medical
treatment, but the prisoner disagrees with a doctor’s reasonable medical judgment regarding the
most appropriate course of treatment: a mere difference of opinion concerning the best treatment
plan does not indicate deliberate indifference. Sharpe v. Patton, No. 08-cv-58-HRW, 2010 WL
227702, at *10 (E.D. Ky. Jan. 19, 2010). Here, Livingston has a difference of opinion with his
medical care providers as to what his course of treatment should be. In the past few years, the
general consensus of his examining physicians, particularly from the specialists such as Dr. Kilambi,
is that Livingston is a high-risk patient for knee replacement surgery and any other invasive
procedure. In 2009, Dr. Kilambi opined that such surgery could be fatal for Livingston. Although
in 2010, Dr. Kevin Pearce, a family practice physician, did recommend knee replacement surgery,
his opinion was the exception, and he is not a cardiology specialist. At this juncture, it is unclear
whether Livingston may have since become a viable candidate for knee replacement surgery. The
KDOC has taken and is currently taking steps to make that determination.
While Livingston disagrees with the course of medical treatment he has received from
medical staff at the KDOC, a prisoner’s mere disagreement with a diagnosis or treatment is not
actionable under 42 U.S.C. §1983, as it cannot establish that the defendant is deliberately indifferent
to his medical needs or condition. Kimble v. Kukua, No. 3:05-cv-00310, 2008 WL 4443248, at *8
(S.D. Tex. Sept. 25, 2008); Rodriguez v. Lappin, No. 08-347-GFVT, 2009 WL 2969510, at *6 (E.D.
Ky. 2009); Greer v. Daley, No. 01-C-586-C, 2001 WL 34377922, at *3 (W.D. Wis. Dec. 27, 2001).
As the Court has explained,
. . . While it appears that the plaintiff has not gotten what he wants, what he wants
is not the issue. Ordering a specific type of surgery is not the appropriate function
of this Court ... at most the plaintiff has alleged a difference in opinion between the
plaintiff and his health care providers regarding the expediency of a specific
treatment. This does not generally create a constitutional claim.
Alexander v. Federal Bureau of Prisons, 227 F. Supp. 2d 657, 666 (E.D. Ky. 2002).
Because Livingston’s allegations and the medical records he has provided do not support the
notion that prison medical staff are ignoring his medical conditions, but rather are treating them in
a manner consistent with the recommendations of the specialists to whom he has been referred, he
has failed to state a viable claim under the Eighth Amendment. Accordingly, those claims will be
dismissed, and his corresponding requests for injunctive relief will be denied.
Livingston also alleges that after he filed this action in December 2011, prison staff retaliated
against him by filing several baseless disciplinary reports against him. Specifically, he points to the
following disciplinary reports:
On February 29, 2012, just before his 8:00 a.m. dental appointment,
Livingston cancelled his appointment stating that he felt sick. On March 3, 2012,
Dental Assistant Heather Stovall issued a disciplinary report against Livingston,
stating her belief that Livingston had cancelled the appointment because he had not
been taking required medication before the appointment. On March 8, 2012,
Correctional Officer Betty J. Sorenson dismissed the disciplinary report following
On March 14, 2012, during his rescheduled dental appointment, Livingston
refused treatment because he had been taking blood thinning medication. Stovall
reported that upon checking with the medical department, she was advised that
Livingston had not been told to take the blood thinning medication. Stovall charged
Livingston with being non-compliant with taking his medication. On March 20,
2012, staff dismissed the charge on the ground that inmates have the right to refuse
On April 12, 2012, Deputy Warden Brandy Harm charged Livingston with
obtaining goods or services under false pretenses. The charge was predicated upon
Livingston’s failure to obtain prior permission to use a library computer to write a
letter unrelated to legal work, namely to request the warden’s permission to send his
watch back to the manufacturer for repair. Livingston was found guilty of this
offense, reprimanded, and ordered to perform 40 hours of extra duty.
Livingston contends that these disciplinary reports were issued against him in retaliation for
filing this action. However, the defendant was not served in this case until April 25, 2012, [R. 12]
well after all three of these disciplinary reports were issued. Absent the defendant’s knowledge of
the case prior to the issuance of the disciplinary reports, Livingston cannot establish a causal
connection between the two, rendering the claim without merit. Cf. Moorer v. Booker, No. 0913725, 2010 WL 5090111, at *5 (E.D. Mich. Aug. 31, 2010).
On July 5, 2012, Livingston filed a “Memorandum of New Evidence.” [R. 24] In it, he
alleges that when BCC dismissed certain disciplinary reports against him, the warden failed to
comply with K.R.S. 196.180, which he contends requires that any reference to these disciplinary
reports be expunged from his inmate records. Whatever the merits of these new claims, they are
factually and legally distinct from his claims regarding the sufficiency of his medical care, and they
arise under state, rather than federal law. Because his federal claims will be dismissed, the Court
declines to exercise supplemental jurisdiction over them. 28 U.S.C. § 1367(c); United Mine
Workers v. Gibbs, 383 U.S. 715 (1966).
Accordingly, IT IS ORDERED that:
Plaintiff’s motions for a protective order and a temporary protective order/injunctive
relief [R. 7, 10] are DENIED.
Plaintiff’s “Motion to Convert to Civil Action” [R. 13] is DENIED.
Defendant Don Bottom’s motion to dismiss the complaint [R. 16] is GRANTED.
Plaintiff’s “Motion for Emergency Hearing/Memorandum of New Evidence” [R. 24]
is DENIED WITHOUT PREJUDICE.
Plaintiff’s motion for summary judgment [R. 26] is DENIED.
The Court will enter an appropriate judgment.
This matter is STRICKEN from the docket.
This the 21st day of August, 2012.
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