Washington v. Bennett-Baker et al
Filing
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MEMORANDUM OPINION & ORDER: 1. The motion of defendants Karen Bennett-Baker, Rhonda Jones, Beverly Barron, and the United States of America for Summary Judgment [R. 9 ] is GRANTED. 2. Plaintiff's complaint [R. 1 ] is DISMISSED. 3. The Court will enter an appropriate judgment. 4. This action is STRICKEN from the active docket. Signed by Judge Gregory F. VanTatenhove on 09/30/2015.(KJA)cc: COR, mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
BURL WASHINGTON,
Plaintiff,
V.
K. BENNETT-BAKER, et al.,
Defendants.
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Civil No. 6: 14-172-GFVT
MEMORANDUM OPINION
&
ORDER
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Plaintiff Burl Washington is an inmate confined at the Federal Correctional Institution Williamsburg in Salters, South Carolina. On July 21, 2014, Washington filed a pro se civil
rights complaint challenging the sufficiency of medical care provided for glaucoma and cataracts
pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80. [R. 1] Following service of
process, the defendants moved to dismiss the complaint, or in the alternative, for summary
judgment. [R. 9] Washington has filed his response to that motion [R. 16, 17] to which the
defendants have replied. [R. 18] For the reasons provided herein, the Defendant’s motion will be
GRANTED.
I
In his complaint, Washington indicates that he was diagnosed with glaucoma in 2004, but
that his doctor had implemented a treatment plan that was effective in controlling his eye
pressures and preventing the loss of vision. [R. 1, p. 2] In 2008, Washington was convicted of
federal drug trafficking offenses and sentenced to thirty years incarceration. While incarcerated
at a federal prison in Greenville, Illinois, Washington underwent a series of surgical procedures
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on his eyes in March 2012 at Barns Jewish Hospital. Washington alleges that during March and
April, medical staff at the prison failed to provide necessary post-surgical care and struck him in
the back of the head, surgical stitches in his left eye broke, and that his ocular pressure increased
from nine to an unsafe level of 27. [R. 1, p. 3] Washington did not name any medical staff at
that facility as defendants to this action.
Washington was transferred out of that institution on April 30, 2012, and arrived at the
United States Penitentiary-McCreary (“USP-McCreary”) in Pine Knot, Kentucky on May 24.
[R. 1-1, p. 16] Mid-level practitioner Bennett-Baker evaluated Washington shortly after his
arrival, reviewed with him the history of medical treatment for his eyes, and ordered a
consultation with an optometrist. [R. 9-1, p. 5; R. 9-4, p. 2]
Washington was examined by a contract optometrist on June 6, who prescribed
latanoprost solution, brimonidine solution, and acetazolamide tablets to reduce the ocular
pressure in his eyes. In a follow-up appointment on July 11, the optometrist changed one of the
prescriptions when Washington complained that it was causing stomach upset, discussed with
Washington the effects that advanced glaucoma would have on his vision, and requested a
consult with an ophthalmologist. [R. 3-1, pp. 1-2; R. 9-3, pp. 27-30]
The optometrist met with Washington again on August 10, at which time Washington
was issued specially-tinted reading glasses. [R. 9-3, pp. 36-37] At another visit with the
optometrist on October 15, Washington indicated that he had not been receiving his eye drops;
however, the pharmacy stated that Washington had been issued his eye drops as prescribed. [R.
9-3, pp. 43-44]
On October 29, Washington was examined by Dr. Henry, a contract ophthalmologist. Dr.
Henry recommended that Washington be referred to the Clinic for Glaucoma at the University of
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Kentucky Medical Center (“UKMC”) for evaluation of his left eye. While Dr. Henry
recommended surgery for removal of a cataract in Washington’s right eye, he explained that
Washington should expect minimal improvement in his vision even with the surgery. [R. 9-3,
pp. 47-48] On October 31, the ophthalmologist also recommended cataract surgery for
Washington’s right eye, which was submitted to the BOP’s Utilization Review Committee for
consideration. [R. 3-1, p. 2; R. 9-3, p. 51]
Washington was examined on a number of occasions in November and December 2012
or January 14, 2013 to address a viral eye infection. Because it was determined at this time that
the UKMC glaucoma specialist to whom Washington had been referred was no longer accepting
new patients, Washington was then referred to a glaucoma specialist at the University of
Louisville. [R. 9-3, pp. 55-90]
On February 7, 2013, an ophthalmologist at the University of Louisville Primary Care
Eye Clinic examined Washington. Following the exam, the ophthalmologist prescribed
Travoprost Z ophthalmologic solution and dorzolamide ophthalmologic solution for Washington
and recommended cataract surgery for his right eye. [R. 9-3, pp. 99-103] From February to
early June, Washington was seen during a number of follow-up appointments for eye care,
although he also failed to appear for a number of appointments that he had previously requested
during this period. [R. 9-3, pp. 104-136]
Washington was examined by his glaucoma specialist at the University of Louisville on
June 18, 2013, who recommended diode laser surgery for Washington’s left eye. [R. 9-3, pp.
139-141] Following a June 24 examination at the Southern Kentucky Eye Center,
ophthalmologist Dr. Mark Henry recommended cataract surgery on Washington’s right eye.
[R. 9-3, pp. 142-145]
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Following pre-operative appointments in early July, on July 22, Washington was
transported to Louisville for evaluation by ophthalmologist Dr. Mohay. Following examination,
Dr. Mohay concluded that:
[Washington] is not a candidate for incisional surgery, and his vision loss is not a
result of advanced cataract or any other treatable condition. The only surgical
option to further decrease the eye pressure of the left eye would be a laser
procedure with cyclophotocoagulation, but this procedure could potentially take
away the rest of the vision of the left eye, therefore I would only consider it as a
last [resort] and only for making the patient comfortable if the eye pressure is
causing severe eye pain. At this point the best treatment option is to optimize his
topical glaucoma medications and discontinue the steroid eyedrops.
[R. 9-3, pp. 168-171] As a result, no cataract surgery was performed.
On August 23, 2013, contract optometrist Dr. Robinson reviewed Washington’s medical
records and, in consultation with Dr. Henry, concluded that Dr. Mohay’s indication that the
cataract in Washington’s right eye was “mild” was likely an error. Both agreed that the cataract
in his right eye was large, and that surgery was necessary to restore vision in that eye. Dr.
Robinson agreed that Dr. Henry should perform cataract surgery in Washington’s right eye. He
also began steps to obtain URC approval for glaucoma surgery on Washington’s left eye and to
have it scheduled with Dr. Moore, a newly-arrived glaucoma specialist at UKMC. [R. 9-1, p. 13;
R. 9-3, pp. 182-185]
On September 17, the BOP designated Washington as Care Level 2. On October 22, he
was transferred to another federal penitentiary. [R. 9-3, p. 196]
Dissatisfied with his medical care, Washington sought administrative settlement of his
claims that he was not receiving prompt and sufficient treatment for cataracts and glaucoma by
filing a claim form with the Bureau of Prisons (“BOP”) on February 3, 2014. [R. 3, pp. 2-3]
The BOP denied Washington’s claim on May 14. [R. 3-1, p. 3]
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Washington filed his complaint in this case on July 17, wherein he contends that the
medical staff at USP-McCreary acted with deliberate indifference to his serious medical needs
for proper care for his eyes. [R. 1.] Specifically, Washington claims that medical staff failed to
ensure that he was examined and treated by a glaucoma specialist from June to December 2012
and failed to follow the plan of care and instructions from his treating eye physicians. [R. 1, p.
3]
II
First, the defendants contend that Washington’s FTCA claim must be dismissed because
he has not provided expert testimony to support his claim that the medical care he received fell
below the applicable standard of care [R. 9-1, pp. 17-18]. Second, they believe that his
disagreement with his treating physicians over his medical care fails to establish deliberate
indifference under the Eighth Amendment [R. 9-1, pp. 22-26]. Finally, Defendants argue that
Barron and Jones cannot be held vicariously liable for decisions regarding Washington’s medical
care with which they were not involved [R. 9-1, pp. 26-27].
The Court must treat the defendants’ motion to dismiss the complaint as a motion for
summary judgment under Rule 56 because they have attached and relied upon documents and
declarations extrinsic to the pleadings in support of it. Fed. R. Civ. P. 12(d); Wysocki v. Int’l
Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). A motion under Rule 56 challenges the
viability of the another party’s claim by asserting that at least one essential element of that claim
is not supported by legally-sufficient evidence. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 324-25 (1986). If the moving party demonstrates that there is no genuine dispute
as to any material fact and that she is entitled to a judgment as a matter of law, she is entitled to
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summary judgment. Kand Medical, Inc. v. Freund Medical Products, Inc., 963 F.2d 125, 127
(6th Cir. 1992).
The moving party does not need its own evidence to support this assertion, but need only
point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629,
638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but
must point to evidence of record in affidavits, depositions, and written discovery which
demonstrates that a factual question remains for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496
(6th Cir. 2003); United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) (“A trial court is
not required to speculate on which portion of the record the non-moving party relies, nor is there
an obligation to ‘wade through’ the record for specific facts.”).
The court reviews all of the evidence presented by the parties in a light most favorable to
the responding party, with the benefit of any reasonable factual inferences which can be drawn in
his favor. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). The court must grant
summary judgment if the evidence would not support a jury verdict for the responding party with
respect to at least one essential element of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251 (1986). If the applicable substantive law requires the responding party to meet a higher
burden of proof, his evidence must be sufficient to sustain a jury’s verdict in his favor in light of
that heightened burden of proof at trial. Harvey v. Hollenback, 113 F.3d 639, 642 (6th Cir.
1997); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1444 (6th Cir. 1993).
A
With respect to Washington’s Eighth Amendment claim asserted under Bivens, he
contends that his health care providers displayed deliberate indifference to his serious medical
needs between June and December 2012 by failing to ensure that he was properly treated by a
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glaucoma specialist and failing to follow the plan of care established by his treating physicians.
[R. 1, p. 3]
As a preliminary matter, defendants correctly note that Washington’s Bivens claims
against the individual defendants in their official capacities must be dismissed. This is the case
because a Bivens claim may only be asserted against federal officials in their individual
capacities. Ctr. for Bio–Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 370 (6th Cir. 2011)
(Bivens claims may be asserted against federal officials only in their individual capacities);
Okoro v. Scibana, 63 F. App’x 182, 184 (6th Cir. 2003).
The Eighth Amendment “forbids prison officials from ‘unnecessarily and wantonly
inflicting pain’ on an inmate by acting with ‘deliberate indifference’ toward [his] serious medical
needs.” Blackmore v. Kalamazoo County, 390 F. 3d 890, 895 (6th Cir. 2004) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). A plaintiff asserting deliberate indifference to his serious
medical needs must establish both the objective and subjective components of such a claim.
Jones v. Muskegon Co., 625 F. 3d 935, 941 (6th Cir. 2010). The objective component requires
the plaintiff to show that the medical condition is “sufficiently serious,” Farmer v. Brennan, 511
U.S. 825, 834 (1994), such as one “that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity
for a doctor’s attention.” Harrison v. Ash, 539 F. 3d 510, 518 (6th Cir. 2008) (citations omitted).
The subjective component requires the plaintiff to show that prison officials actually knew of a
substantial risk of harm to the plaintiff’s health but consciously disregarded it. Cooper v. County
of Washtenaw, 222 F. App’x 459, 466 (6th Cir. 2007); Brooks v. Celeste, 39 F. 3d 125, 128 (6th
Cir. 1994).
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In light of Washington’s lengthy and established medical history of cataracts and
glaucoma, there is little question that his medical conditions were “sufficiently serious” to
implicate the Eighth Amendment. However, to that lengthy and established history of eye
conditions there is a correspondingly lengthy and established history of medical treatment by the
BOP for those conditions. The nearly two hundred pages of medical records provided by the
BOP cover only the care provided for Washington’s eye conditions for the sixteen-month period
between May 2012 and October 2013. [R. 9-1, pp. 14-204] Those medical records establish a
narrative of ongoing treatment for persistent and recurring cataracts, glaucoma, and viral
infections. Washington’s treating physicians altered his medications and treatment plans at
various times to address his complaints of stomach upset, to treat a viral infection, and to account
for new medical data obtained from examinations and testing regarding his cataracts and ocular
pressures. During this period, Washington was examined and/or treated several times a month to
address his severe glaucoma.
Where, as here, the plaintiff has received abundant medical treatment but merely
disagrees with the course of treatment determined by physicians in the exercise of their medical
judgment, his claim sounds in state tort law – it does not state a prima facie claim of deliberate
indifference under the Eighth Amendment. Graham ex rel. Estate of Graham v. County of
Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004) (“[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.”); Durham v. Nu’Man, 97 F. 3d 862, 868-69 (6th Cir. 1996); Rodriquez v. Lappin, No.
08-347-GFVT, 2009 WL 2969510, at *5-6 (E.D. Ky. Sept. 11, 2009). Even “[w]hen a prison
doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has not displayed
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a deliberate indifference to the prisoner’s needs, but merely a degree of incompetence which
does not rise to the level of a constitutional violation.” Comstock v. McCrary, 273 F. 3d 693,
703 (6th Cir. 2001).
Thus, Washington’s “disagreement with the exhaustive testing and treatment he received
while incarcerated does not constitute an Eighth Amendment violation.” Lyons v. Brandy, 430 F.
App’x 377, 381 (6th Cir. 2011) (citing Estelle, 429 U.S. at 107; Westlake v. Lucas, 537 F.2d 857,
860 n.5 (6th Cir. 1976)). See Taylor v. Carr, No. 5:14-273-DCR, 2014 WL 6775231, at *3-4
(E.D. Ky. Dec. 2, 2014) (holding that inmate failed to state deliberate indifference claim where
he merely disagreed with treating ophthalmologist’s medical judgment that surgery for retinal
detachment would be futile); Matthews v. Doe, No. 12-2517(JBS), 2013 WL 244984, at *4-5
(D.N.J. Jan. 22, 2013) (holding that plaintiff failed to state a claim for deliberate indifference
where he merely disagreed with ophthalmologist’s medical judgment that cataract removal
surgery was not clinically indicated); Nichols v. Lappin, No. 3:11-CV-1210, 2012 WL 1902567,
at *5-6 (M.D. Pa. May 25, 2012) (granting summary judgment regarding claimed delay in
cataract surgery absent evidence that delays were intentional or consequence of improper
purpose).
The Court further agrees that Washington has failed to state a claim against defendants
Jones and Barron where Washington’s complaint does not allege that either was personally
involved in making decisions regarding his medical care. Each has disavowed any knowledge of
Washington’s health conditions or participation in decision-making regarding his medical care.
[R. 9-5, pp. 1-3; R. 9-6, pp. 1-4] A plaintiff “must allege that the defendant[ ][was] personally
involved in the alleged deprivation of federal rights.” Nwaebo v. Hawk-Sawyer, 83 F. App’x 85,
86 (6th Cir. 2003) (citing Rizzo v. Goode, 423 U.S. 362, 373-77 (1976)). The mere fact that an
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official supervises the person who commits the conduct of complained of is not enough.
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981).
B
With respect to Washington’s claim against the United States under the FTCA,
Washington contends that the medical care he received from health care professionals in the
employ of the United States fell below the applicable standard of care. The FTCA constitutes a
limited waiver of the sovereign immunity enjoyed by the United States for claims based upon
“personal injury or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant.” 28 U.S.C.
§ 1346(b); Matthews v. Robinson, 52 F. App’x 808 (6th Cir. 2002). The law of the state where
the relevant conduct occurred determines the existence and scope of its liability. Rayonier Inc. v.
United States, 352 U.S. 315, 318 (1957).
Because Washington alleges that the medical care he received at USP-McCreary fell
below the applicable standard of care, the Court looks to Kentucky’s law of negligence to
determine whether he has presented the essential components of his claim. Id. Under Kentucky
law, to establish a prima facie case of medical malpractice a plaintiff must prove that the given
treatment fell below the degree of care and skill expected of a reasonably competent practitioner
and that the negligence proximately caused the plaintiffs injury or death. Reams v. Stutler, 642
S.W.2d 586, 588 (Ky. 1982). Negligence is never presumed “from the mere evidence of mental
pain and suffering of the patient, or from failure to cure, or poor or bad results, or because of the
appearance of infection.” Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006). Instead,
“[t]o survive a motion for summary judgment in a medical malpractice case in which a medical
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expert is required, the plaintiff must produce expert evidence or summary judgment is proper.”
Id. (citing Turner v. Reynolds, 559 S.W.2d 740, 741-42 (Ky. App. 1977)); Blankenship v.
Collier, 302 S.W.3d 665, 675 (Ky. 2012) (“[A] plaintiff bringing a typical medical malpractice
case is required by law to put forth expert testimony to inform the jury of the applicable medical
standard of care, any breach of that standard and the resulting injury.”). The plaintiff can
provide evidence of the applicable standard of care from a variety of sources. For instance, “the
necessary expert testimony may be supplied by the defendant’s admissions during discovery, or
through medical evidence obtained from other treating physicians.” Vance By and Through
Hammons v. United States, 90 F.3d 1145, 1148 (6th Cir. 1996) (citing Perkins v. Hausladen, 828
S.W.2d 652, 655-56 (Ky. 1992)).
Kentucky does recognize a “common knowledge” exception, obviating the need for
expert testimony to establish the standard of care “where the common knowledge or experience
of laymen is extensive enough to recognize or to infer negligence from the facts.” However, the
exception is very narrow, and is generally limited to circumstances involving obvious error by
the physician, such as where a surgeon amputates the wrong limb or leaves a foreign object in
the body. Rose v. United States, No. 09-104-ART, 2011 WL 839548, at *2 (E. D. Ky. Mar. 7,
2011). The common knowledge of a layman is not sufficient to make a determination regarding
the proper treatment of Washington’s medical conditions, rendering this exception inapplicable
to plaintiff’s claims. Blankenship, 302 S.W.3d at 670-71.
Here, Washington has not provided expert testimony to support his claim that the medical
care given by the defendants fell below the applicable standard of care and caused his injuries.
He has therefore failed to establish a prima facie case of medical negligence. Andrew, 203
S.W.3d at 170; see also Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991) (“It is an
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accepted principle that in most medical negligence cases, proof of causation requires the
testimony of an expert witness because the nature of the inquiry is such that jurors are not
competent to draw their own conclusions from the evidence without the aid of such expert
testimony.”). The Court will therefore grant the defendants’ motion for summary judgment on
Washington’s FTCA claim.
Accordingly, IT IS ORDERED that:
1.
The motion of defendants Karen Bennett-Baker, Rhonda Jones, Beverly Barron,
and the United States of America for Summary Judgment [R. 9] is GRANTED.
2.
Plaintiff’s complaint [R. 1] is DISMISSED.
3.
The Court will enter an appropriate judgment.
4.
This action is STRICKEN from the active docket.
This 30th day of September, 2015.
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