Roller v. Dankwa et al

Filing 22

MEMORANDUM OPINION AND ORDER: (1) Dfts' 15 Motion for Summary Judgment is GRANTED. (2) Dft's 15 Motion to Dismiss is DENIED AS MOOT. (3) Judgment is entered in favor of Dr. Dankwa with respect to Roller's Bivens claim. (4) Judgment is entered in favor of the USA with respect to Roller's FTCA claim. (5) This action is DISMISSED and STRICKEN from the Court's active docket. (6) The Court will enter a judgment contemporaneously with this Order. Signed by Judge Joseph M. Hood on August 7, 2017. (AWD) cc: COR,Pla via US Mail

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

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
VIBEKE DANKWA and
UNITED STATES OF AMERICA,
Defendants.
***

***

Civil No. 16-288-JMH

MEMORANDUM OPINION
AND ORDER

***

***

John Roller is an inmate at the Federal Medical Center (FMC)
in Lexington, Kentucky, where he has been incarcerated since March
2011.

Proceeding without a lawyer, Roller has filed a complaint

challenging the sufficiency of the medical care he received at the
prison.

[R. 1].

Roller asserts a civil rights claim against

prison physician Dr. Vibeke Dankwa pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), as well as
a claim against the United States of America pursuant to the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80.
The

defendants

have

now

filed

a

motion

to

dismiss

Roller’s

complaint or, in the alternative, a motion for summary judgment
[R. 15], Roller has filed his response [R. 19], and the defendants
have filed their reply [R. 21].
a decision.

This matter is therefore ripe for

For the reasons set forth below, the Court will grant

the defendants’ motion.

I.
Since 2003, Roller has had health problems with his left eye.
In March 2014, Roller underwent a “repeat penetrating keratoplasty
with cataract extraction,” which is basically a cornea transplant.
[R. 1 at 3].

While the procedure was initially successful, Roller

eventually rejected the donor tissue he had received.

[Id.].

Beginning in November 2015, Roller required and received
extensive medical care from the doctors, nurses, and pharmacists
at FMC-Lexington, as well as multiple medical professionals at the
University of Kentucky Medical Center (UKMC).
defendants’

motion,

they

provide

a

[R. 15-8].

detailed

healthcare that Roller received for his eye.

summary

In the
of

the

[R. 15-1 at 3-11].

While the Court will not recite all of Roller’s medical history,
his medical records show that, from November 2015 through March
2016, medical professionals examined and/or treated Roller’s eye
on at least 10 different occasions.
2-133].

[R. 15-1 at 3-9; R. 15-8 at

Ultimately, however, Roller’s left eye had to be removed.

[R. 15-8 at 112-14].
Dr. Dankwa was extensively involved in caring for Roller.
Indeed, Dr. Dankwa regularly reviewed Roller’s medical records,
including

the

notes

made

by

other

physicians

and

medical

professionals; examined Roller on multiple occasions; ordered him
new medications; renewed his previous medications; reconciled
those medications; requested multiple ophthalmology consultations;
2

and scheduled Roller for multiple appointments at FMC-Lexington
and the UKMC.

[R. 15-6 and 15-8].

Even when Roller did not show

up to one of his appointments, Dr. Dankwa still ordered him new
medications, renewed his previous medications, and scheduled him
for another appointment.
Nevertheless,
inadequate

and

[R. 15-8 at 29-31].

Roller

claims

ineffective”

that

medical

he
care.

received
[R.

“woefully
1

at

6].

Specifically, Roller alleges that Dr. Dankwa did not follow the
treatment plan established by UKMC ophthalmologist Dr. Gregory
Katz and was also responsible for a delay in his medical care during
a “critical time” between January 25, 2016 and February 11, 2016.
[R. 1 at 3-7, 9].
On January 25, 2016, Dr. Dankwa requested that Roller have an
ophthalmology consultation for a worsening central corneal ulcer.
[R. 15-8 at 62].

Dr. Dankwa described the matter as “urgent” and,

that same day, prison officials transported Roller to the UKMC.
[Id. at 62-63].
At the hospital, ophthalmologist Dr. Douglas Katz treated
Roller.

[Id. at 63-66].

Dr. Katz indicated that while Roller had

been using prescription eye drops while awake, he “refused to take
drops at night.” [Id. at 63]. Dr. Katz then described the “central
corneal ulcer of [the] left eye” as “stable,” but said that the
“rejection of [the] cornea transplant” was “worsening.”

[Id. at

65]. Dr. Katz also noted that Roller had an “extremely poor vision
3

prognosis.”
wrote:

[Id.].

Finally, at the end of Dr. Katz’s notes, he

“RTC [return to clinic] 1 week.”

[Id.].

Prison officials brought Roller back to FMC-Lexington, and
Dr. Dankwa evaluated Roller and worked with a nurse to reconcile
his latest medications.

[Id. at 68-71].

Dr. Dankwa also noted

that while Roller said he “was told to do eye drops every 2 hours,
no paperwork [was] available for review” as she was “await[ing]
[the] consult report from UKMC.”

[Id. at 72].

Date stamps

indicate the FMC-Lexington did not receive Dr. Katz’s report until
two days later.

[Id. at 63-66].

Although Dr. Katz said in his notes, “RTC [return to clinic]
1 week,” and one week later would have been February 1, 2016, the
next substantive event in Roller’s medical history did not come
until February 8, 2016. On that date, Dr. Dankwa noted that Roller
needed to see an ophthalmologist due to his failing corneal
transplant.

[Id. at 74].

While Dr. Dankwa requested that the

consultation occur the next day [Id. at 74], it ended up taking
place three days later.

[Id. at 77].

On February 11, 2016, Dr. Katz examined Roller.

[Id. at 77].

Dr. Katz noted that, in January 2016, Roller had “a serious and
large infection of the left transplant” and, therefore, prison
officials sent him to the UKMC “for culturing” and to be “started
on fortified Vancomycin and Tobramycin.”

[Id.].

Dr. Katz then

said that Roller “had one follow up appointment a couple of days
4

later, but has not kept his follow up appointments since then and
has not been seen since January 25, 2016.”

[Id.].

Dr. Katz added

that Roller was “currently taking Vancomycin and Tobramycin every
two hours,” but noted that “[t]he prognosis for [Roller’s] eye is
extremely

grim.”

medication,

he

[Id.].

concluded

While

Katz

switched

Roller

that

Dr.

“may

end

up

Roller’s
requiring

enucleation or possibly a repeat transplant to try and eliminate
this infection.”

[Id.].

Later that day, Dr. Dankwa reviewed Dr. Katz’s notes, ordered
Roller his new medication, and arranged for Roller to be seen by
an ophthalmologist once again the very next day.

[Id. at 80-81].

While Roller returned to the UKMC on February 12, 2016, and also
received treatment over the course of the next few weeks, he
eventually had to have his left eye removed in March 2016.

[Id.

at 81-127].
Shortly thereafter, Roller pursued his administrative remedies
and filed an administrative tort claim with the Bureau of Prisons.
[R. 15-4 and 15-5].

Roller claimed, among other things, that he

“received sub-standard medical treatment by staff here at the
Federal Medical Center in the treatment of my left eye resulting
in the loss of my left eye.”

[R. 15-4 at 1].

Prisons, however, denied Roller relief.
Roller then filed this lawsuit.

The Bureau of

[R. 15-4 at 9; R. 15-5].
[R. 1].

While the Court

initially screened Roller’s complaint and dismissed some of his
5

claims, it allowed his Bivens claim against Dr. Dankwa and his
FTCA claim against the United States to move forward.

[R. 10].

Ultimately, Roller claims that Dr. Dankwa inflicted cruel and
unusual punishment on him in violation of the Eighth Amendment to
the United States Constitution.

[R. 1 at 2].

Roller also alleges

that Dr. Dankwa committed medical malpractice and, as a result,
the United States is liable pursuant to the FTCA.

[R. 1 at 7-10].

Again, the crux of Roller’s complaint is that Dr. Dankwa did not
follow Dr. Katz’s treatment plan and was likewise responsible for
a delay in his medical care during a “critical time” between January
25, 2016 and February 11, 2016.

[R. 1 at 3-7, 9].

The defendants filed a motion to dismiss Roller’s complaint
or, in the alternative, a motion for summary judgment [R. 15],
Roller has filed his response [R. 19], and the defendants have
filed their reply [R. 21]. This matter is therefore ripe for a
decision.
II.
As an initial matter, the Court will treat the defendants’
motion as one for summary judgment because they have attached and
relied upon documents and declarations extrinsic to the pleadings.
See Fed. R. Civ. P. 12(d); Wysocki v. Int’l Bus. Mach. Corp., 607
F.3d 1102, 1104 (6th Cir. 2010).

Ultimately, the Court will grant

this motion because Roller’s Eighth Amendment and FTCA claims are
both unavailing.
6

A.
Roller’s Eighth Amendment claim against Dr. Dankwa is without
merit.

To be sure, under certain circumstances, a prisoner can

establish

an

Eighth

Amendment

inadequate medical care.
the

defendant

acted

violation

if

he

is

provided

However, the plaintiff must show that

with

deliberate

plaintiff’s serious medical needs.

indifference

to

the

See Blackmore v. Kalamazoo

Cty., 390 F.3d 890, 895 (6th Cir. 2004) (citing Estelle v. Gamble,
429 U.S. 97, 104 (1976)).
Here, even construing all of the evidence in the light most
favorable to Roller, he cannot establish an Eighth Amendment
violation.

After all, the evidence shows that Dr. Dankwa was

extensively involved in caring for Roller.

Indeed, Dr. Dankwa

regularly reviewed Roller’s medical records, including the notes
made

by

other

physicians

and

medical

professionals;

examined

Roller on multiple occasions; ordered him new medications; renewed
his previous medications; reconciled those medications; requested
multiple ophthalmology consultations; and scheduled Roller for
multiple appointments at FMC-Lexington and the UKMC.

[R. 15-6 and

15-8]. Even when Roller did not show up to one of his appointments,
Dr. Dankwa still ordered him new medications, renewed his previous
medications, and scheduled him for another appointment.

[R. 15-8

at 29-31]. In light of this extensive evidence, Dr. Dankwa clearly
did not display deliberate indifference to Roller’s medical needs.
7

Roller nevertheless claims that Dr. Dankwa did not follow Dr.
Katz’s treatment plan and “chose to ignore his diagnosis and treat
him with less expensive drugs that were virtually ineffective.”
[R. 1 at 6-7].

Roller, however, offers no evidence to support his

assertions, and the defendants’ evidence actually shows that Dr.
Dankwa worked in conjunction with Dr. Katz to provide Roller with
medical care.

Plus, in any event, the Sixth Circuit has made it

clear that, where a prisoner has received medical attention and
the dispute is over the adequacy of the treatment he received,
such claims are not cognizable under the Eighth Amendment.

See

Graham ex rel. Estate of Graham v. Cty. of Washtenaw, 358 F.3d
377, 385 (6th Cir. 2004) (citing Westlake v. Lucas, 537 F.2d 857,
860 n.5 (6th Cir. 1976)).

Similarly, the court has repeatedly

recognized that a mere disagreement over medical treatment does
not give rise to a constitutional claim of deliberate indifference.
See, e.g., Wright v. Sapp, 59 F. App’x 799, 801 (6th Cir. 2003);
Simpson v. Ameji, 57 F. App’x 238, 239 (6th Cir. 2003).
Still, Roller claims that Dr. Dankwa was responsible for a
delay during a “critical time” in his medical care.
7, 9].

[R. 1 at 3-

But even if that is true, in order to make out a deliberate

indifference claim, Roller must demonstrate that Dr. Dankwa acted
with a culpable state of mind, such as an intent to deny or delay
Roller’s access to medical care.

See Lara-Portele v. Stine, No.

6:07-cv-014, 2008 WL 45398, at *6 (E.D. Ky. 2008) (citing Estelle
8

v. Gamble, 429 U.S. 97 104 (1976)).

Roller has neither offered

nor cited any evidence in the record demonstrating that Dr. Dankwa
acted with such a culpable state of mind.
It is worth noting that Roller has claimed that, on February
8,

2016,

a

nurse

generated

a

form

on

which

she

generically

indicated that inmate health care remains the responsibility of
the Bureau of Prisons staff and then stated, “inmate not to be
informed of appointment dates.”

[R. 1 at 4-5].

Roller then says

that this document will “be provided showing that medical staff
knew [he] was missing his follow up appointments.”

[R. 1 at 5].

But Roller never actually provides this document or any other
relevant evidence in response to the defendants’ motion for summary
judgment.

And, without any context, the nurse’s alleged statement

does not establish that Dr. Dankwa intentionally denied or delayed
Roller’s medical care or otherwise acted with a culpable state of
mind.

If anything, the evidence that is actually in the record

shows that, on February 8, 2016, Dr. Dankwa requested that Roller
see an ophthalmologist the very next day.

[R. 15-8 at 74].

Thus,

Roller’s claim that Dr. Dankwa acted with deliberate indifference
to his medical needs is simply unavailing.
B.
Roller has also not made out a FTCA claim against the United
States.

While Roller claims that Dr. Dankwa provided him with

medical care that fell below the applicable standard of care and
9

caused his injuries, and therefore the United States is liable
pursuant to the FTCA, Roller cannot survive the defendants’ motion
for summary judgment.

That is because, under Kentucky law, a

plaintiff is generally required to put forth expert testimony to
establish the relevant standard of care, any breach of that
standard, causation, and the resulting injury.

See Blankenship v.

Collier, 302 S.W.3d 665, 667, 675 (Ky. 2010); Jackson v. Ghayoumi,
419 S.W.3d 40, 45 (Ky. Ct. App. 2012).

Moreover, the Kentucky

courts have clearly said that, “[t]o survive a motion for summary
judgment in a medical malpractice case in which a medical expert
is required, the plaintiff must produce expert evidence or summary
judgment is proper.”
Ct. App. 2006).

Andrew v. Begley, 203 S.W.3d 165, 170 (Ky.

Here, Roller has not provided any expert testimony

and, thus, he has failed to establish a prima facie case of medical
malpractice.
The Court recognizes that there is a “common knowledge”
exception to the expert witness rule. This exception provides that,
under certain limited circumstances, expert testimony may not be
required in a medical malpractice case.

See id.

But that

exception only applies in a situation in which “any layman is
competent to pass judgment and conclude from common experience
that such things do not happen if there has been proper skill and
care,” and it is “illustrated by cases where the surgeon leaves a

10

foreign object in the body or removes or injures an inappropriate
part of the anatomy.”

Id.

Roller’s claim does not meet this very narrow exception.
While Roller argues that Dr. Dankwa was responsible for a delay
during a “critical time”

in his medical care, this Court has

recognized that “delay-based allegations . . . are fundamentally
different from a surgeon leaving a foreign object in a person or
operating on the wrong party of the body.”

Earle v. United States,

No. 6:13-cv-184, 2016 WL 8814363, *6 (E.D. Ky. 2016). As the Court
put it in Earle:
Lay people certainly are not competent, based on common,
everyday experience, to judge relative injury causation
or delay effect as to a highly complex area of the body
such as a retina. Particular cause(s) of [such an injury
or complication] . . . surely may result from many
factors that laypeople do not know how to accurately
weigh or evaluate absent expert testimony on the
subject.
Id.

The Kentucky courts have said essentially the same thing.

See, e.g., Jones v. Gaes, No. 2009-SC-780, 2011 WL 1642225, at *3
(Ky. 2011) (“Absent expert testimony, a layperson is not competent
to determine whether the alleged delay by Dr. Jones in recognizing
and treating Gaes’s perforated colon was the proximate cause of
her pain and suffering, the colostomy procedure, or her ongoing
medical problems.”).

In short, the common knowledge exception is

inapplicable and, thus, Roller’s FTCA claim does not even get off
the ground.

11

C.
In light of the foregoing analysis, it is hereby ORDERED as
follows:
1.

The defendants’ motion for summary judgment [R. 15] is
GRANTED.

2.

The defendants’ motion to dismiss [R. 15] is DENIED AS
MOOT.

3.

Judgment is entered in favor of Dr. Dankwa with respect
to Roller’s Bivens claim.

4.

Judgment is entered in favor of the United States with
respect to Roller’s FTCA claim.

5.

This action is DISMISSED and STRICKEN from the Court’s
active docket.

6.

The Court will enter a judgment contemporaneously with
this order.

This 7th day of August, 2017.

12