Meador II et al v. Growse

Filing 34

MEMORANDUM OPINION & ORDER: (1) 22 Motion to Dismiss is DENIED as MOOT, but his alternative Motion for Summary Judgment is GRANTED. (2) Court will enter Judgment. (3) Proceeding is DISMISSED and STRICKEN from the docket. Signed by Judge Karen K. Caldwell on 3/12/2014.(SCD)cc: COR,Pro Se Pla(via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON

ALLEN MEADOR, II,
Plaintiff,

Civil Action No. 12-CV-120-KKC

DR. GROWSE, et al.,

MEMORANDUM OPINION
AND ORDER

V.

Defendants.

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The Court has reviewed and considered the following pleadings:
(1)

The “Motion to Dismiss, or in the Alternative, Motion for Summary

Judgment” [R. 22] filed by Defendant Michael Growse, M.D., former Clinical
Director of the Federal Medical Center (“FMC”)-Lexington,1 a Bureau of Prisons
(“BOP”) prison facility which is located in Lexington, Kentucky;
(2)

The sealed medical records of Plaintiff Allen Meador, II [R. 24];

(3)

The sealed Declaration of Dr. Growse [R. 33];

(4)

Meador’s “Response” [R. 29] (to Dr. Growse’s Motion to Dismiss);

(5)

Dr. Growse’s “Reply” [R. 30] to Meador’s Response.

and

1

In addition to being the former Clinical Director of FMC-Lexington, Dr. Growse also saw patients and
provided them with medical care. See Declaration of Dr. Michael Growse, M.D. [R. 33, ¶1] Dr. Growse
has since retired from the BOP. [Id.]

For the reasons set forth below, the Court will grant Dr. Growse’s motion for
summary judgment as to Meador’s Eighth Amendment medical claims against him.
PROCEDURAL HISTORY
1. Meador’s Complaint
Meador is confined in FMC-Lexington. In April 2012, he filed this pro se
civil rights action, asserting claims under 28 U.S.C. § 1331, pursuant to the doctrine
announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971).2 Meador alleges that he suffers from chronic pain related to a pancreatic
condition which was diagnosed in 2005. When Meador entered the federal prison
system he was being treated with Lortab (acetaminophen and hydrocodone) and
morphine. However, a cell search conducted on March 3, 2011, revealed that Meador
had hidden morphine pills in his locker in violation of prison rules. As a result, Dr.
Growse changed Meador’s pain management regimen, discontinued his morphine
medication, and replaced morphine with other, non-narcotic medications to treat
Meador’s abdominal pain.
Meador immediately filed an inmate grievance with former FMC-Lexington
warden Deborah Hickey, indicating that this medication was not sufficient to address
the pain he was experiencing. Hickey denied the grievance, noting that Meador’s
medical records revealed that his prescription for narcotic pain medication had been
stopped because he had violated prison rules regarding its use, and because there was
2

Meador also sued Deborah Hickey, the former Warden of FMC-Lexington, but on August 9, 2012, the
Court dismissed Meador’s claims against Hickey. [R. 12] The Court determined that Hickey had not been
personally involved in Meador’s medical care, and that her actions in denying Meador’s administrative
grievances were insufficient to hold her vicariously liable for the medical decisions made by medical
professionals. [Id., pp. 2-4]

2

no “objective evidence that narcotics are clinically indicated at this time.” [R. 1-6]
Subsequent appeals were denied, although the BOP’s Central Office’s February 8,
2012, response indicated that Meador had been receiving oxycodone for pain
management since September 16, 2011. [R. 1-8]
Meador alleges that Dr. Growse’s decision to change his pain management
regimen amounted to deliberate indifference to his serious medical needs and violated
his right to right to be free from cruel and unusual punishment, guaranteed by the
Eighth Amendment of the U.S. Constitution. [R. 1, p. 12]. Meador seeks monetary
damages from Dr. Growse for the pain and suffering which he alleges that he endured
between March 3, 2011, and September 16, 2011.
2. Motion to Dismiss/Summary Judgment
In his Motion to Dismiss/Summary Judgment [R. 22], Dr. Growse argues that
Meador has at best alleged a difference of opinion as to the proper course of his
medical treatment, not a claim of deliberate indifference to his serious medical
condition. Dr. Growse asserts that his decision to discontinue Meador’s morphine
medication was completely warranted given the discovery of Meador’s improper
hoarding--or “cheeking”--of the medication. Alternatively, Dr. Growse argues that
even if the Court determines that he violated Meador’s Eighth Amendment rights, he
is entitled to qualified immunity.
Dr. Growse has filed under seal Meador’s numerous medical records [R. 24]
and his own sworn Declaration [R. 33], in which he stated that he is familiar with
Meador’s medical records, pancreatic condition, and pain management issues, having
treated Meador while he was confined in FMC-Lexington. [Growse Decl., R. 33, ¶1]
3

Dr. Growse provided a chronological summary of events, set forth below, relating to
Meador’s medical issues at FMC-Lexington.
When Meador arrived at FMC Lexington on March 12, 2009, he weighed 191
pounds and presented a history of chronic pancreatitis and accompanying abdominal
pain. [Id., ¶2]. Shortly after his arrival, Meador was prescribed morphine (one 30
mg, 12-hour time release pill), once daily, for his abdominal pain. [Id.]3
Meador’s prescription for daily morphine continued through March 2, 2011.
[Id., ¶3] On that date, security staff at FMC-Lexington discovered multiple doses of
Meador’s morphine pills inside his personal property locker, in his room, and
concluded that Meador had been “cheeking” (or concealing and pretending to
swallow) the morphine pills at the pill line; taking the pills back to his room; and
storing them in his locker, in violation of prison rules. [Id.] After the staff questioned
Meador about the discovery of the medication, he admitted to the violations. [Id.] On
March 9, 2011, Meador was found guilty of a Code 302 violation, “Misusing
Authorized Medication,” which resulted in him losing 13 days of his good conduct
time and 180 days of phone privileges. [Id.]
On March 3, 2011, the day after the pills were found, Dr. Growse examined
Meador to re-assess Meador’s prescription and pain management needs in light of the
discovery of the stash of morphine pills. [Growse Decl., ¶4] Dr. Growse determined

3

Dr. Growse states that because Morphine is a controlled prescription medication, the prison medical staff
must dispense it to the prisoner during the “pill line,” which enables the staff to watch the prisoner take the
medication. [Id.] Dr. Growse explains that this procedure is standard for dispensing such medications in
prison, because it prevents inmates from improperly possessing and misusing the medicine, either by
selling it or taking larger doses than what has been prescribed. [Id.]

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that even though Meador had not had taken morphine since the discovery of his
hidden pill stash, he displayed no objective physical symptoms of pain, nor did he
display other adverse symptoms, such as sweating, respiratory changes, abnormal
vital signs, abnormal posture/gait, agitation, or weight loss. [Id.] At that time,
Meador weighed 211 pounds --twenty (20) pounds more than his weight two years
before when arrived at FMC Lexington-- and his temperature and blood pressure were
within normal ranges. [Id.] Based on his physical examination of Meador, which
revealed no objective evidence of extreme pain, Dr. Growse concluded that Meador’s
pain complaints could be managed without morphine. [Id.] Dr. Growse therefore
ordered the medical staff to taper-off Meador’s morphine over a three-day period, and
after that, to discontinue it. [Id.]
A few days later, on March 8, 2011, Meador’s FMC-Lexington physician
examined him and prescribed non-narcotic pain medications (a combination of
Tylenol and Meloxicam, a non-steriodal anti-inflammatory drug with analgesic
effects) to reduce Meador’s pain and the inflammation caused by his chronic
condition. [Id., ¶6]. Meador was also instructed to return to the clinic if his condition
changed. [Id.]
Over the next six months, Meador received medical treatment for his condition
and was administered various non-narcotic pain medications.
Attached Medical Records]

[Growse Decl.,

Meador subsequently returned to the facility clinic

complaining of abdominal pain associated with his pancreatitis. [Growse Decl., ¶7]
On September 14, 2011, Meador was referred to University of Kentucky emergency
medicine specialists for complaints of abdominal pain.
5

[Id.] After this outside

consultation, Meador was then prescribed a narcotic painkiller (oxycodone, 10 mg4),
which he was to take three times a day. [Id.] This prescription was later renewed in
October and November of 2011. [Id.]
In December 2011, Meador’s physician returned him to morphine, at the same
dosage as he had previously received. [Id., ¶8] Meador continued on morphine until
April 2012, when he was again placed on oxycodone, which was refilled a number of
times. [Id.] In July 2012, Meador’ pain medication was changed to Methadone, an
opioid analgesic. [Id.]
4. Meador’s Response to Dr. Growse’s Motion to Dismiss/Summary Judgment
Meador responded that Dr. Growse acted with deliberate indifference to his
serious medical needs; that his medical condition was “obvious;” and that Dr. Growse
deliberately delayed necessary medical treatment of morphine, as “punishment.” [R.
29, pp. 1-6] Meador suggests that because his condition was obvious even to a lay
person, he does not need to offer expert opinion to substantiate his deliberate
indifference claim. [Id., p. 7] Finally, Meador argues that Dr. Growse is not entitled
to qualified immunity because his actions violated the Eighth Amendment’s
prohibition against cruel and unusual punishment, and that Dr. Growse was, or should
have been, aware of his (Meador’s) established Eighth Amendment rights.
5. Dr. Growse’s Reply to Meador’s Response
Dr. Growse replies that he was not deliberately indifferent to Meador’s serious
medical needs, again noting that between March 2011 and September 2011, Meador

4

Dr. Growse states that Oxycodone, like morphine, is an opioid analgesic. [Id.]

6

continued to receive alternative, non-narcotic medications for his abdominal pain, and
that Meador’s unauthorized “cheeking” (pretending to ingest) his morphine
medication, then hoarding it, justified the decision to suspend dispensation of
morphine for several months. Dr. Growse reiterates that Meador’s claim is nothing
more than a disagreement about the type of medication he was given, but that such a
disagreement does not rise to the level of an Eighth Amendment violation. Dr.
Growse further asserts that under established case law, prisoners are not entitled to
demand specific medical care.

DISCUSSION
1. Standard of Review
Because Dr. Growse has submitted his affidavit and other materials outside of
the pleadings, the Court will consider his arguments as a motion for summary
judgment under Federal Rule of Civil Procedure 56. See Song v. City of Elyria, Ohio,
985 F.2d 840, 842 (6th Cir. 1993); Smith v. The Cheesecake Factory Restaurants,
Inc., No. 3:06–00829, 2010 WL 441562, at**3–4 (M.D. Tenn. Feb.4, 2010) (court
converted motion to dismiss to motion for summary judgment where both parties
relied on proof that fell outside pleadings).
Summary judgment is appropriate where “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). To prevail on a
motion for summary judgment, the non-moving party must show sufficient evidence
to create a genuine issue of material fact. Klepper v. First American Bank, 916 F.2d
7

337, 341–42 (6th Cir. 1990). Drawing all reasonable inferences in favor of the
nonmoving party, the Court must determine “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.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251–52 (1986).
2. Standard of Review Applied to Facts
The Eighth Amendment prohibits prison officials from acting with deliberate
indifference to a prisoner’s objectively serious medical needs. Estelle v. Gamble, 429
U.S. 97, 106 (1976). A deliberate indifference claim has two components, one
objective and the other subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). Under the objective
component, “the plaintiff must allege that the medical need at issue is ‘sufficiently
serious.’” Id. Under the subjective component, “the plaintiff must allege facts which,
if true, would show that the official being sued subjectively perceived facts from
which to infer substantial risk to the prisoner, that he did in fact draw the inference,
and that he then disregarded that risk.” Id.
Dr. Growse does not appear to contest the proposition that pancreatitis is a
serious medical condition, and the Court has no difficulty in concluding that
pancreatitis qualifies as an objectively serious medical condition. See Lopez v. Green,
Civil No. PJM 09-1942, 2012 WL 1999868, at *3 (D. Md., June 4, 2012)
(determining that plaintiff’s pancreatitis condition qualified as a serious medical
condition); Horn v. Bay County Sheriff’s Dept., No. 2:07-CV-10116, 2008 WL
3285808, at *5 (E.D. Mich. Aug. 7, 2008) (concluding that pancreatitis was a
8

“sufficiently serious medical condition,” and that the plaintiff therefore satisfied the
objective component of the Farmer test); Ramos v. DeTellal, No. 95 C 5308, 1998
WL 704352, at *3 (N.D. Ill. Sept. 24, 1998) (finding evidence that the prisoner “was
diagnosed with acute pancreatitis that is chronic and can create intermittent severe
pain” indicated that he “suffered from a serious medical need.”).
Meador’s deliberate indifference claim against Dr. Growse fails, however,
because he has not satisfied the subjective prong of the Farmer test. The subjective
component can be satisfied by showing that the prison official was deliberately
indifferent to a prisoner’s serious medical needs, such as by “intentionally denying or
delaying access to medical care or intentionally interfering with the treatment once
prescribed.” Estelle, 429 U.S. at 104; Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir.
1992). The record does not demonstrate that Dr. Growse intentionally disregarded
any medical risks that Meador faced in March 2011.
After physically examining Meador on March 3, 2011, Dr. Growse found no
objective symptoms of pain--such as weight loss, sweating, abnormal temperature or
blood pressure, abnormal vital signs, agitation, abnormal vision, abnormal gait or
posture, or respiratory changes--which would have warranted the continued
administration of morphine medication. Lacking any objective evidence of extreme
pain, and using his medical expertise, Dr. Growse determined that he could
effectively treat Meador’s subjective complaints of pain without morphine.

Dr.

Growse did not terminate Meador’s the medication without either examining Meador
or reviewing his medical history; he made that decision based on objective findings
from his examination of Meador, and his review of Meador’s medical history. Over
9

the next six months, the prison medical staff continued to monitor and treat Meador,
and to administer a several medications (including Oxycodone and Methadone) to
reduce pain and inflammation. In September 2011, the medical staff had Meador
transported to the University of Kentucky Emergency Room for further treatment and
evaluation.

Such ongoing and responsive care is the antithesis of deliberate

indifference. Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994); Lara-Portela v.
Stine, No. 07-CV-014-KKC, 2008 WL 45398, at *7-9 (E.D. Ky. Jan. 2, 2008).
Meador does not allege that he was denied any medication for his pancreatitis;
he alleges only that he disagreed with Dr. Growse’s decision, in early March 2011, to
discontinue his morphine medication. Dr. Growse has submitted his medical opinion
that the termination of morphine in March 2011 was justified based on the fact that
Meador did not manifest any objective symptoms of pain or distress, only subjective
complaints of pain. Meador was not denied any medication to treat his pancreatitis
condition between March 2011 and September 2011; he was only denied the
medication of his choice. Indeed, during this time-period, Meador was administered
several alternative medications, including oxycodone.
Thus, Meador received ongoing medical care and the FMC-Lexington medical
staff continually administered numerous medications to him--albeit not the
medications that Meador wanted. “Where 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
which sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.
1976); see, e.g., Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995); Simpson v.
10

Ameji, 57 F. App'x 238, 239 (6th Cir. 2003). The difference of opinion between a
prisoner and his doctor as to medical treatment and/or choices of medication involve
issue of medical judgment, and differences of opinion about medical treatment do not
rise to the level of an Eighth Amendment violation. Frost v. Stalnaker, File No. 09cv-662, 2010 WL 5830446, *6 (S.D. Ohio Dec. 17, 2010); Staples v. Dewalt, File No.
07-cv-385, 2009 WL 1505560, *6 (E.D. Ky. May 27, 2009).
Federal courts generally refuse to intervene in questions of medical judgment,
Flick v. Vadlamudi, No. 09-CV-647, 2010 WL 3884508 *22 (W.D. Mich. Aug. 9,
2010), and, relevant to Meador’s case, federal courts have also consistently held that a
medical provider has not been deliberately indifferent to a prisoner’s medical needs
when he decides to withhold a certain medication based on “medical judgment” and
“reasonable concern about providing narcotics to jail inmates.” See, e.g., Williams v.
Rodriguez, No. 10-2715, 2012 WL 1194160, *10 (April 10, 2012) (“plaintiff has
provided evidence that he was denied morphine, not that he was deprived of other
medications”); Todd v. Bigelow, No. 09-cv-808, 2012 WL 627965, *6 (D. Utah Feb.
24, 2012) (finding no deliberate indifference when inmate was offered other,
alternative pain medications); Shockley v. Fox, 444 F. App’x 36, 38 (5th Cir. 2011)
(rejecting prisoner’s claim that the prison medical staff’s refusal to administer
narcotic pain medication violated his Eighth Amendment rights); Cutler v.
Correctional Medical Services, No. 3:08-CV-00507-BLW, 2011 WL 4479025, at *9*10 (D. Idaho, Sept. 26, 2011) (same); Hood v. Prisoner Health Services, Inc., 180 F.
App’x. 21, 25 (10th Cir. 2006) (same).

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Meador’s disagreement with Dr. Growse’s decision to eliminate his morphine
medication is, if anything, one of professional malpractice or negligence, not
deliberate indifference. See Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001)
(“malpractice does not violate the Eighth Amendment; instead the suit charges that
the defendants inflicted cruel and unusual punishment on the plaintiff by refusing to
treat his condition.”). At best, Meador might have had a negligence claim under the
Federal Tort Claims Act, but he does not assert a valid deliberate indifference claim
under the Eighth Amendment. See Starling v. United States, 664 F. Supp.2d 558, 570
(D.S.C. 2009); Smith v. United States, 2007 WL 2155703, at *6 (W.D. Pa. 2007).
Further, in discontinuing Meador’s morphine medication in March 2011, Dr.
Growse reasonably considered the fact that the prison staff had discovered that
Meador had been improvising his ingestion of his morphine medication and hoarding
the pills for future improper use. Dr. Growse concluded that Meador’s actions of
pretending to ingest his morphine pills and secretly hoarding the pills substantiated
that Meador’s pain level was not so high that he needed to continue taking the
morphine medication.

Courts have consistently determined that prison medical

doctors have not been deliberately indifferent to prisoners’ medical needs by
terminating certain medications, after it was determined that the prisoners had been
“cheeking,” or stowing away, or otherwise abusing, their prescribed medications.
See, e.g., Reed v. Sapp, 211 F.3d 1270, 2000 WL 571994 (6th Cir. 2000) (no
deliberate indifference as to pain medications, where the prisoner had been accused of
salvaging his pain medication for prohibited use); Todd, 2012 WL 627965 at *6 (no
deliberate indifference, medication was discontinued after inmate found to be
12

“cheeking”); Atakpu v. Lawson, File No. 05-cv-524, 2008 WL 5233467, *11 (S.D.
Ohio Dec. 11, 2008) (same).5
Finally, Meador has not supported his claims with any expert opinion, and has
thus not contradicted Dr. Growse’s sworn Declaration and the authenticated medical
records. In his response to the Motion to Dismiss, Meador broadly alleged that his
pancreatitis condition and his pain level were “obvious” [R. 8, p. 14]; that lay
testimony would suffice to substantiate his claims, id.; and that “any licensed medical
practitioner should have known that Plaintiff is required to have a narcotic to
Pancreatic Disease….” [Id.] Meador thus appears to be relying on the “common
knowledge exception” used in negligence claims, and to be claiming that his
deliberate indifference claims can proceed by offering only his interpretation of his
medical records and his own lay opinion about his pancreatitis condition and
medication needs. That rule does not apply here, because Meador asserts Eighth
Amendment claims of deliberate indifference, not claims of mere negligence.6
Accordingly, no issues of material fact exist. The record establishes that Dr.
Growse reasonably responded to

Meador’s

medical needs and provided

constitutionally adequate medications to Meador, although the medications which
5

See also Shea v. Wheeler, No. 00-72, 2001 WL 34376846, * 6 (W.D. Wis. June 19, 2001)(same);
Aquino v. Girdich, No. 04-cv-87, 2007 WL 201170 (N.D.N.Y. Jan. 23, 2007) (no deliberate indifference,
medication was discontinued after inmate was found to be misusing medicine); Johnson v. Herman, No.
05-cv-372, 2006 WL 1408389, * 2-3 (N.D. Ind. May 18, 2006) (same); Jones v. Ehlert, 704 F. Supp. 885,
888-889 (E.D. Wis. 1989) (same); Percival v. Kelso, No. 09-cv-1699, 2011 WL 794419, *6 (E.D. Cal.
March 1, 2011) (no deliberate indifference, medication was discontinued after inmate was found selling
medicine to other inmates).
6

Even in the context of a negligence claim, however, the decision regarding the termination of morphine
medication and to prescribe other alternative medications to treat pancreatitis would likely involve too
complex a question to fall within the “common knowledge” exception.

13

Meador received were not the ones which he preferred. Meador’s claims amount to
nothing more than a disagreement as to adequacy and sufficiency of his medical
treatment, not deliberate indifference to his serious medical needs in violation of the
Eighth Amendment.

Because the Court has determined that no constitutional

violation occurred, an analysis of Dr. Growse’s invocation of qualified immunity is
not necessary. Dr. Growse’s motion for summary Judgment will therefore be granted,
and this action will be dismissed with prejudice.
CONCLUSION
Accordingly IT IS ORDERED that:
(1)

The “Motion to Dismiss,” filed by Defendant Michael Growse, M.D.,

former Clinical Director of the Federal Medical Center-Lexington is DENIED as
MOOT, but his alternative “Motion for Summary Judgment” [R. 22] is GRANTED.
(2)

The Court will enter an appropriate Judgment.

(3)

This proceeding is DISMISSED and STRICKEN from the Court’s

active docket
This March 12, 2014.

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