Rose v. Crall et al

Filing 13

AMENDED MEMORANDUM OPINION & ORDER: (1) Plt's 7 MOTION to Amend/Correct 1 Complaint is GRANTED; (2) Clerk amend docket sheet to name Tammy Pittman, LPT, NTC as dft instead of Tammy Wilson; (3) Plt's claims for monetary damages against all dfts in official capacity DIMISSED; (4) Plt's claims for injunctive relief against Dr. Rhee, S. Votaw, L. Watson, L Good, T. Pittman, J. Thomas, Prison Correct Care Solutions in official capacity are DIMISSED; (5) Plt's claims for mone tary damages against dfts Dr. Rhee, J. Thomas and Prison Correct Care Solutions in their individual capacity DISMISSED; (6) All claims having been resolved against Dr. Rhee; J. Thomas; and Prison Correct Care Solutions/Correct Care Solutions having b een resolved, they are DISMISSED as parties to this action; (7) Plt's claims against Dr. Crall in his official capacity for injunctive relief and in his individual capacity for monetary damages shall proceed; (8) Plt's claims against S. Vot aw, L. Watson, L. Good, T. Pittman, all in their individual capacities for monetary damages shall proceed; (9) Clerk shall prepare docs necessary for service of process upon Dr. Crall, S. Votaw, L. Watson, L. Good, T. Pittman; (10) Clerk shall prepar e Service Packed for service on dfts; (11) Clerk provide service packets to USMS; (12) Service on Dr. Crall shall be conducted by USMS by serving packet personally, through arrangements w/ Ky Dept of Corrections; (13) Service upon S. Votaw, L. Watson , L. Good, T. Pittman shall be conducted by USMS by serving packed personally through arrangements w/ Northpoint Training Center; (14) Clerk directed to serve copy of Order on Ky Dept of Corrections; (15) Plt SHALL advise clerk's office of change in mailing address; communicate w/ court solely through notices or motions filed w/ Clerk's office; certify copy mailed to every dft. Signed by Judge Karen K. Caldwell on 7/15/2015.(STC)cc: Plt,USM,KyDOC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JOHN ROSE,

Civil Action No. 5:14-465-KKC

Plaintiff,
AMENDED MEMORANDUM
OPINION AND ORDER

V.
DOCTOR DOUG CRALL, M.D., et al.,
Defendants.

John Rose (“Rose”) is in custody of the Kentucky Department of Corrections
(“KDOC”) and is presently confined in the Northpoint Training Center (“NTC”) in Burgin,
Kentucky. Proceeding pro se, Rose has filed a civil rights complaint pursuant to 42 U.S.C. §
1983, alleging violations of his constitutional rights to medical care and treatment. [R. 1].
Specifically, Rose claims that the Defendants1 have been deliberately indifferent to his
serious medical needs, in violation of the Eighth Amendment of the United States
Constitution, by failing to provide adequate medical care and treatment to him relative to
the broken foot he sustained in January of 2014.
Rose has also moved to amend and correct his complaint [R. 7], advising the Court
that he inadvertently named Tammy Wilson LPN, NTC, as a defendant when he should
have named Tammy Pittman, LPN, NTC, as a defendant. Essentially, Rose wants to
substitute Tammy Pittman for Tammy Wilson as a named defendant and does not want to
assert a claim against Tammy Wilson. Since no summons has issued to any of the named
defendants and since Rose is free to amend his complaint once as a matter of right,

1The

named Defendants are Dr. Doug Crall, M.D., Medical Coordinator, KDOC; Dr. Richard Rhee, M.D.; Shelli
Conyers Votaw, APRN, NTC; Leann Watson, LPN, NTC; Lisa Good, LPN, NTC; Tammy Pittman, LPN, NTC;
Julie Thomas, Deputy Warden, NTC; and Correct Care Solutions.

pursuant to Fed. R. Civ. P. 15(a), Rose’s motion to amend/correct the complaint will be
granted. In screening Rose’s complaint, the Court will consider Tammy Pittman, LPN,
NTC, to be a named defendant instead of Tammy Wilson, LPN, NTC.
The Court conducts a preliminary review of Rose’s complaint because he has been
granted permission to proceed in forma pauperis and because he asserts claims against
government officials. 28 U.S.C. §§ 1915(e) (2), 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 a defendant who is immune from such relief. McGore v.
Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Rose’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 his 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).
FACTUAL BACKGROUND2
Rose states that on January 31, 2014, while he was on his way to the gym, he
slipped (and presumably fell) on ice and hurt his foot. He proceeded to the gym and ran on
the treadmill. [R. 1, p. 2]. Two days later, on February 2, 2014, Rose filed a Sick Call
Request with the Medical Department, stating: “I hurt my right foot somehow. Will explain
on sick call.” [R. 1-1, Page ID# 15]. Rose explained that he had tried to give the foot time to
heal but that it seemed to be getting worse. Id. Rose was seen at sick call by a nurse and
was given an elastic wrap for his injured foot, but his foot was not x-rayed.
The condition of Rose’s foot did not improve, and he continued to experience pain in
the foot.

He returned to sick call repeatedly, as well as making visits to the Nurse

Practitioner, complaining about his foot pain. Rose states that he filed additional Sick Call
2The

foregoing factual background is taken strictly from the statements Rose makes in the complaint.

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Requests to the Medical Department concerning his injured foot and the associated pain on
February 20, April 27, May 1, and May 5, 2014, and that he repeatedly requested that xrays be taken of his injured foot, but that no x-rays were taken at that time. Rose was
apparently examined only by nurses during these times; he states that he was never
examined by a physician. Finally, when Rose returned to sick call again on May 15, 2014,
it was agreed that his foot should be x-rayed. Rose’s foot was x-rayed, some three and onehalf months after he injured his foot. The x-rays revealed that his foot had been broken
and that it had healed incorrectly, resulting in increased pain in the foot. Rose states that
the x-rays also indicated bone spurs in the foot, that there is some type of unknown mass on
the top of his foot, and that he has been advised that the mass could be a blood clot, an
infection, or bone fragments. [R. 1, page 4].
Rose claims that the defendants have been “deliberately indifferent” to his medical
needs regarding the care and treatment of his broken foot, as evidenced by the fact that no
x-rays were taken of his foot for three and one-half months after the foot was broken, and
that due to this lack of care and treatment, his broken foot healed improperly, resulting in
continuing foot pain. Rose requests that his foot be surgically repaired in order to stop the
pain and to restore “proper walking.” [R. 1, page 14].

Rose also requests unspecified

compensatory damages against the Defendants for ignoring his medical needs and causing
him unnecessary pain and suffering. Id.
On May 23, 2014, Rose filed an Inmate Grievance (No. 014-289), summarizing the
history of his foot injury and treatment, and requesting that he be scheduled to see a
podiatrist as soon as possible. [R. 1-1, Page ID## 21-22]. NTC officials responded that his
request was non-grievable. [R. 1-1, Page ID# 23]. Rose appealed the denial of his grievance

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to no avail.

Thus, it appears that prior to filing this action, Rose exhausted the

administrative remedies available to him.
DISCUSSION
A.

Constitutional violation
To assert a viable claim under § 1983, a plaintiff must establish that his

constitutional rights were violated by one acting color of law. Although Rose does not
expressly state which constitutional right is at issue, by claiming that the defendants have
been “deliberately indifferent” to his serious medical needs, he is asserting an Eighth
Amendment claim.
B.

Claims against the defendants in their Official Capacity
Rose does not specify whether he is suing the defendants in their official capacity as

government employees or in their individual capacity. When a plaintiff does not allege the
capacity in which he is suing the defendants, it is construed that they are being sued in
their official capacity. Wells v. Brown, 891 F.2d 591, 593-94 (6th Cir. 1989). If the plaintiff
seeks only monetary relief, the defendants are not subject to suit for money damages in
their official capacity because government officials sued for damages in their official
capacity are absolutely immune from liability under the Eleventh Amendment to the
United States Constitution. Will v. Mich. Dep't. of State Police, 491 U.S. 58, 70-71 (1989);
Kentucky v. Graham, 473 U.S. 159, 169(1985).

A state, its agencies, and its officials sued

in their official capacities for monetary damages are not considered persons for purposes of
§ 1983 or a constitutional claim. Id.; see also Matthews v. Jones, 35 F.3d 1046, 1049 (6th
Cir. 1994).
Thus, the official-capacity claims for monetary damages against all named
defendants will be dismissed for failure to state a claim upon which relief can be granted.

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28 U.S.C. § 1915(e) (2) (B) (ii). As to Rose’s claim for injunctive relief, viz., surgery to
correct his improperly healed broken right foot, that claim is permissible against the
defendants in their “official capacity.”
C.

Claims against Defendants in their Individual Capacities

1.

Dr. Richard Rhee
Rose identifies defendant Richard Rhee, M.D., as an x-ray specialist employed by

EMDS Lexington, 2030 Ader Road, Jeanette, Pennsylvania.

It is unclear from Rose’s

complaint whether Dr. Rose is the medical professional who x-rayed Rose’s foot or whether
he simply reviewed and interpreted the results of the x-ray of Rose’s foot that was taken by
someone else. Regardless, Rose has no viable claim against Dr. Rhee, since Dr. Rhee was
not a physician in the medical department at NTC and was in no position to provide
medical care and treatment to Rose for his broken foot. Dr. Rhee simply read the x-ray that
was taken in May of 2014. In essence, Dr. Rhee’s involvement with Rose and his broken
foot occurred after the fact, i.e. after the alleged “deliberate indifference” to Rose’s serious
medical needs regarding the care and treatment of his broken foot had already occurred in
the interim between January 2014, when the foot was allegedly broken, and May of 2014,
when the foot was x-rayed.
Consequently, Rose has failed to state a constitutional claim against Dr. Rhee for
which relief can be granted. Dr. Rhee will be dismissed as a named defendant.
2.

Prison Correct Care Services
In the caption of his Complaint, Rose names “Prison Correct Care Services”

(“PCCS”) as a defendant, and on page 2B of 8 of the Complaint, Rose lists “Correct Care
Solutions” (“CCS”) as a defendant. [R. 1, Page ID# 3]. While not identified with exactly the
same name, these two names appear to refer to the same defendant.

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Rose does not state what actions PCCS or CCS took that violated his constitutional
rights. In fact, the narrative statement of Rose’s claim makes no reference whatsoever to
PCCS/CCS in any way. PCCS/CCS may provide medical care and services to inmates,
pursuant to a contract it may have with the KDOC, but the Court is only speculating as to
that possible connection. Even if that is the connection, Rose’s complaint is devoid of any
statements about the conduct of PCCS/CCS that could possibly be the basis for an Eighth
Amendment “deliberate indifference” claim. A plaintiff must plead that each government
official-defendant, through his or her own actions, has violated the Constitution. Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1948 (2009); Nwaebo v. Hawk Sawyer, 100 F. App'x 367, 369 (6th
Cir. 2004); Rizzo v. Goode, 423 U.S. 362, 373-77 (1976).
Consequently, Rose fails to state an Eighth Amendment claim against PCCS/CCS
upon which relief may be granted because he does not explain how it was personally
involved in the alleged unlawful conduct. His claims against PCCS/CCS will be dismissed.
3.

Dr. Doug Crall, M.D., Medical Coordinator
Doug Crall, M.D., is the Medical Coordinator for the KDOC. Rose states that on

June 19, 2014, he appealed the denial of his grievance filed at NTC concerning the medical
care and treatment of his broken foot (Grievance No. 014-289) to Dr. Crall. Rose states that
approximately two months later, on August 27, 2014, he wrote a letter to Dr. Crall
inquiring about the status of his appeal and requesting him to respond to the appeal. Upon
receiving no response from Dr. Crall, on November 3, 2014, Rose wrote Dr. Crall a second
letter inquiring about the status of his appeal and requesting a response. Rose states that
Dr. Crall never responded either to his appeal or to his two follow-up letters. [R. 1, Page
ID# 6].

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In his administrative/supervisory position as the KDOC Medical Coordinator, Dr.
Crall was in no position to provide medical care and treatment to Rose for his broken foot
immediately after it was broken and during the time Rose was paying visits to Sick Call
and seeking medical care treatment from medical personnel at NTC. Thus, Dr. Crall could
not have been “deliberately indifferent” to Rose’s serious medical needs at that time.
However, after Rose appealed the denial of Grievance No. 014-289 to Dr. Crall, he arguably
was on notice of Rose’s broken foot and the alleged problem Rose has had obtaining medical
care and treatment for that foot. Assuming the truthfulness of Rose’s statements that he
has received no response from Dr. Crall in relation to his grievance appeal and/or his two
follow-up letters of inquiry in August of 2014 and November of 2014, it is arguable that Dr.
Crall has been “deliberately indifferent” to Rose’s ongoing foot problem, given that it
appears that he was on notice of the problem in June or July of 2014, and took no action at
all.
Having conducted the initial screening required by 28 U.S.C. §§ 1915(e) (2) (B),
1915A, the Court concludes that the complaint warrants a response from Dr. Crall in his
official capacity to Rose’s request for injunctive relief and a response from Dr. Crall in his
individual capacity to Rose’s claim for monetary damages arising from Dr. Crall’s alleged
“deliberate indifference” to Rose’s appeal of his grievance.
4.

Julie Thomas, Deputy Warden, NTC
At some point during the time when Rose was making visits to Sick Call seeking

treatment for his injured foot, he wrote a letter to Julie Thomas, Deputy Warden at NTC,
concerning this matter.3 In response to his letter to her, Deputy Warden Julie Thomas
looked into the matter, and by letter dated May 22, 2014, she informed Rose that: “I met
3Error!

Main Document Only.Rose’s letter to Julie Thomas is not of record; therefore, the Court has no
knowledge as to the exact contents of this letter, but apparently he made reference to Shelli Votaw, one of the
nurses in the medical department at NTC.

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with Shelli Votaw concerning your letter. She advised me that your medical concerns are
being addressed.” [R. 1-1, Page ID# 28].

Rose may be attempting to claim that Deputy

Warden Julie Thomas violated his Constitutional rights by failing to do more than look into
the matter and respond to his letter. Assuming Rose is claiming that Deputy Warden
Thomas was “deliberately indifferent” to his serious medical needs, this claim is without
merit because there is no respondeat superior liability where the plaintiff alleges only that
the defendant merely failed to act or control employees. Shorts v. Bartholomew, 255 F.
App’x 46, 53 (6th Cir. 2007); Salephour v. University of Tennessee, 159 F.3d 199, 206 (6th
Cir. 1998); Hays v. Jefferson, 668 F.2d 869, 872 (6th Cir.), cert. denied, 459 U.S. 833 (1982).
“Rather, the supervisors must have actively engaged in unconstitutional behavior.”
Gregory v. Louisville, 444 F.3d 725, 751 (6th Cir. 2006).
At a minimum, a plaintiff must show that the official at least implicitly authorized,
condoned, approved or knowingly acquiesced in the deprivation of the plaintiff’s
constitutional rights. Hays, 668 F.2d at 874; Carter v. Wilkinson, No. 2:05-CV-0380, 2009
WL 81217, at * 10 (S. D. Ohio, January 9, 2009).

Reading between the lines of his

complaint, Rose appears to claim that Deputy Warden Julie Thomas should have done more
than simply consult with Shelli Votaw and inform him of the results of that consultation.
He does not allege that Julie Thomas directly participated in, condoned, or encouraged the
alleged unconstitutional conduct committed by other prison personnel. Thus, he has failed
to establish a viable Constitutional claim against Deputy Warden Julie Thomas. His claim
against Deputy Warden Julie Thomas in her individual capacity for monetary damages will
be dismissed.

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5.

Shelli Conyers Votaw, APRN; Leann Watson, LPN; Lisa Good, LPN; and
Tammy Pittman, LPN
In the caption of his Complaint, Rose names Shelli Conyers Votaw, APRN; Leann

Watson, LPN; Lisa Good, LPN; and Tammy Pittman, LPN, as defendants. In the narrative
portion of Rose’s complaint, he refers only to Shelli Votaw, but the Sick Call Requests
attached to his complaint [R. 1-1, Page ID## 15-20] contain, collectively, what appear to be
the signatures of Leann Watson, Lisa Good, and Tammy Pittman, thus indicating that over
the course of Rose’s five visits to the prison’s Medical Department, he was examined and/or
may have been treated by all of the foregoing nurses at NTC. Additionally, in Section III.C.
of the complaint, Rose states: “Every nurse listed has knowledge of Plaintiff’s broken foot
healing incorrectly, causing severe agonizing pain and not one will help get it corrected.” [R.
1, Page ID# 10].
Based on a review of Rose’s complaint and the attachments thereto, it appears that
whenever he went to Sick Call, he was examined and/or treated by nurses Shelli Votaw,
Leann Watson, Lisa Good, and Tammy Pittman. For these reasons, the Court concludes
that Rose’s claim against these four nurses in their individual capacity for monetary
damages can go forward at this juncture. They must respond to his complaint.
CONCLUSION
Having conducted the initial screening required by 28 U.S.C. §§ 1915(e) (2) (B),
1915A, the Court concludes that the complaint warrants a response from the remaining
defendants.

Defendant Dr. David Crall, in his official capacity as the KDOC Medical

Coordinator, will be required to respond to Rose’s claims for injunctive relief, viz, corrective
surgery for his improperly healed broken foot, as well as to respond to Rose’s claim against
him in his individual capacity for monetary damages. Defendants Shelli Conyers Votaw,

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APRN, Leann Watson, LPN; Lisa Good, LPN; and Tammy Pittman, LPN, in their
individual capacities, will be required to respond to Rose’s claim for monetary damages.
Because Rose is proceeding in forma pauperis, the Clerk of the Court and the United
States Marshal’s Service (“USMS”) will serve the defendants with a summons and a copy of
the complaint and its attachments on Rose’s behalf.

Fed. R. Civ. 4(c) (3); 28 U.S.C. §

1915(d).
Accordingly, it is ORDERED as follows:
(1)

Plaintiff’s motion to amend or correct the complaint [R. 7] to substitute

Tammy Pittman, LPN, NTC, as a defendant, for Tammy Wilson, LPN, NTC [R. 7] is
GRANTED.
(2)

The Clerk of the Court shall amend the CM/ECF docket sheet to name

Tammy Pittman, LPN, NTC as a defendant instead of Tammy Wilson, LPN, NTC.
(3)

Plaintiff’s claims for monetary damages against all Defendants in their

official capacity are DISMISSED.
(4)

Plaintiff’s claims for injunctive relief against Defendants Dr. Richard Rhee,

M.D.; Shelli Conyers Votaw, APRN, NTC; Leann Watson, LPN, NTC; Lisa Good, LPN,
NTC; Tammy Pittman, LPN, NTC; Julie Thomas, Deputy Warden, NTC; and Prison
Correct Care Solutions/Correct Care Solutions in their official capacity are DISMISSED.
(5)
Rhee,

M.D.;

Plaintiff’s claims for monetary damages against Defendants Dr. Richard
Julie

Thomas,

Deputy

Warden,

NTC;

and

Prison

Correct

Care

Solutions/Correct Care Solutions in their individual capacity are DISMISSED.
(6)

All claims having been resolved against Dr. Richard Rhee, M.D.; Julie

Thomas, Deputy Warden, NTC; and Prison Correct Care Solutions/Correct Care Solutions
having been resolved, they are DISMISSED as parties to this action.

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(7)

Plaintiff’s claims against Dr. Doug Crall, M.D., Medical Coordinator, KDOC,

in his official capacity for injunctive relief and in his individual capacity for monetary
damages shall proceed.
(8)

Plaintiff’s claims against Shelli Conyers Votaw, APRN, NTC; Leann Watson,

LPN, NTC; Lisa Good, LPN, NTC; Tammy Pittman, LPN, NTC, all in their individual
capacities for monetary damages shall proceed.
(9)

The Clerk shall prepare the documents necessary for service of process upon:
a.
b.

Shelli Conyers Votaw, APRN, NTC;

c.

Leann Watson, LPN, NTC;

d.

Lisa Good, LPN, NTC; and,

e.
(10)

Dr. Doug Crall, M.D., Medical Director, KDOC;

Tammy Pittman, LPN, NTC;

The Clerk shall prepare a “Service Packet” consisting of the following

documents for service of process upon these defendants:
a.
b.
c.
d.

a completed summons form;
the Complaint [R. 1];
this Order; and
a completed USMS Form 285.

(11)

The Clerk shall provide the Service Packet(s) to the USMS.

(12)

Service of Process upon Dr. Doug Crall, M.D., Medical Director, KDOC, shall

be conducted by the USMS by serving a Service Packet personally upon him, through
arrangements with the Kentucky Department of Corrections.
(13)

Service of Process upon Shelli Conyers Votaw, APRN, NTC; Leann Watson,

LPN, NTC; Lisa Good, LPN, NTC; Tammy Pittman, LPN, NTC, shall be conducted by the
USMS by serving a Service Packet personally upon each of them, through arrangements
with Northpoint Training Center.
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The USMS is responsible for ensuring that each defendant is successfully served
with process. In the event that an attempt at service upon a defendant is unsuccessful, the
USMS shall make further attempts and shall ascertain such information as is necessary to
ensure successful service.
(14)

The Clerk is further directed to serve a copy of this Order on the Kentucky

Department of Corrections, and to note the service in the docket sheet;
(15)

The plaintiff SHALL:
a.

Immediately advise the Clerk’s Office of any change in his current

mailing address. Failure to do so may result in dismissal of this case.
b.

Communicate with the court solely through notices or motions filed

with the Clerk’s Office. The court will disregard correspondence sent directly to
the judge’s chambers.
c.

In every notice, motion, or paper filed with the court, certify in writing

that he has mailed a copy to every defendant (or his or her attorney) and state the date of
mailing. The court will disregard any notice or motion which does not include
this certification.
Dated July 15, 2015.

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