Abney v. Thompson et al

Filing 50

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 9/6/2012. 44 Motion for Summary Judgment is SUSTAINED and plaintiff's claims against Frederick W. Kemen and Roy Washington are DISMISSED WITH PREJUDICE; 45 Motion to Amend Scheduling Order is now MOOT. cc:counsel (TLB) Modified on 9/7/2012 remove cc for pro se plaintiff (TLB).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:10-CV-606-H
EVERETT D. ABNEY

PLAINTIFF

vs.
LADONNA THOMPSON, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff, Everett D. Abney (“Abney”), filed this pro se action on September 24, 2010,
while incarcerated at Kentucky State Reformatory (“KSR”). Abney has named as Defendants:
LaDonna Thompson, Kentucky Department of Corrections (“KDOC”) Commissioner; Lt. Carlos
Schantz, Internal Affairs Officer at KSR; Robert Gimmell, Chief Engineer of KSR; Terry
Anderson, Engineer at KSR; Glenn Dotson, KSR “CUA 2;” Marvin Brunner, KSR Engineering
Supervisor; Frederick W. Kemen, M.D. (“Dr. Kemen”), Roy Washington, APRN (“Nurse
Washington”), and Cookie Crews, Warden of KSR. Abney alleged that Defendant Brunner
subjected him to repeated verbal and physical sexual harassment while he was assigned to a
work detail. Abney also alleged that, while on that work detail, he was exposed to “Friable
Asbestos and Lead Paint/Dust and Fumes” without proper working materials. Abney set out the
period of his alleged exposure to asbestos and lead paint as being from March 28, 2009, through
September 28, 2009. Finally, Abney alleges that unnamed officials in the medical department
acted with deliberate indifference to his serious medical needs concerning his reports of
exposure to these substances.
Defendants, Dr. Kemen and Nurse Washington, have moved for summary judgment on a
variety of Plaintiff’s claims under 42 U.S.C. § 1983. Plaintiff has not responded to the motion.

I.
The relevant facts appear to be these. Abney was a frequent visitor to the KSR medical
department and his overall health and medical concerns are well documented. On one occasion
he did express concern about exposure to “Friable Asbestos and Lead Paint/Dust and Fumes,” in
a “Request to See Staff Form.” Abney’s frequent visits to medical for various other maladies
provide an abundance of evidence such as lab work, blood tests, lung sounds, and x-rays, none of
which show signs of onset of
disease associated with exposure to asbestos or lead paint/dust.
On September 8, 2009, Nurse Washington saw Abney for knee pain, excessive urination
at night and a small rough spot on the right side of his face. He ordered lab work, which
included another complete blood count and an abdominal x-ray to look for stones or calcified
areas in Abney’s kidneys, ureters, and bladder. The x-ray was conducted on September 11. The
report states, “There is no soft tissue mass or pathologic calcification. Chest is normal.” The
radiologist’s impression was, “unremarkable abdomen examination.” The lab work showed that
Abney’s red and white blood counts were once again within normal limits, as were his
hematocrit and hemoglobin and all other values measured at that time. Nurse Washington saw
Abney again on September 23 for follow-up on his labs, and found Abney’s labs and radiologic
studies to be “unremarkable.”
On October 1, 2009, Abney entered a request to see medical staff with complaint of sinus
problems, pressure in his ears, headaches and shortness of breath. Medical staff noted
that Abney was already scheduled for an appointment on October 13, at which time he was
seen by Courtney McGuire, RN (“Nurse McGuire”). Abney’s vital signs were within normal

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limits; his lung sounds were clear with no congestion noted; and that he was already scheduled
for an appointment with his care provider.
On October 26, 2009, Abney submitted a request to be screened for exposure to known
asbestos and possible lead paint dust. Personnel informed Abney that he already had an
appointment scheduled with his care provider and that he should raise the issue at that time.
Nurse Washington saw Abney four days later, on October 30, 2009. During this visit, Abney
received additional care for the spot on his right cheek. Abney’s vital signs were within normal
limits. He also complained of knee pain during this visit. The note for this visit contains
no information about a complaint of exposure to asbestos or lead paint, or any request to be
examined or screened for such exposure. Nurse Washington states in his Affidavit that if Abney
had raised these concerns that he would have documented them in the medical record.
On November 16, 2009, Abney submitted another request to see medical staff. He stated
that he was having trouble getting medications through the pill call window. He requested that
Nurse Washington look into this “ASAP.” Nurse Washington saw Abney again on November
19 and December 4, at which times Abney received additional treatment for the spot on his right
cheek. Nurse Washington saw Abney again December 8 for evaluation of the spot on his right
cheek and his complaint of his leg going to sleep after sitting for 5-10 minutes. Objective
findings during this visit included, regular heart rate and rhythm and clear lungs.
On January 7, 2010, Nurse Washington saw Abney for continuing care of his chronic
knee pain. Nurse Washington noted during this visit, “He has no complaints and [wishes] to
[continue] meds as written.” Abney’s vital signs were all were within normal limits. On
February 19, Abney reported to sick call with complaint of pain in his left testicle for the

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previous sixteen hours. He was examined and received medication for the complaint.
On March 4, 2010, Abney submitted another request to see medical staff, stating that he
needed his medications renewed and that he was still having some problems, though he did not
specify what they were. Abney submitted another request to see medical staff on March 9,
stating that his medications had been renewed but that he still needed a follow up with Nurse
Washington, without further explanation. Medical staff responded that Abney already had a
follow-up appointment scheduled the week of March 15. On March 12, Nurse Washington saw
Abney again for follow-up for his complaint of testicular pain and painful urination. During this
visit, Nurse Washington found Abney’s lungs clear and his heart rate and rhythm to be regular.
On March 21, 2010, Abney again requested to see the medical staff, complaining that
after starting the medication Doxazosin three nights earlier, he had started to experience rectal
bleeding. Nurse Washington saw Abney the next day and requested a consultation for a
colonoscopy. Lab work was conducted on March 25 as ordered by Nurse Washington. This lab
work also consisted of a complete blood count and complete metabolic panel. Abney’s red and
white blood counts were once again within normal limits, as were his hematocrit and hemoglobin
and all other values measured at that time.
On April 5, 2010, Abney reported to KSR Dorm 12 for preparation for his colonoscopy.
His vital signs were normal except for his temperature, which was somewhat low. A follow up
note that same day again showed normal vital signs with the exception of temperature. Abney’s
lung sounds were clear. On April 6, the colonoscopy was performed at Baptist Hospital
Northeast. On April 27, Nurse Washington saw Abney for review of the colonoscopy results and
management of Abney’s chronic bilateral knee pain. At that time, Abney complained of dry

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mouth and problems with urine hesitancy. Nurse Washington ordered that Abney’s Oxybutnin
be withheld for six weeks due to anticholinergic effects. Nurse Washington’s objective findings
were regular heart rate and rhythm and clear lungs.
On July 13, Abney submitted a request to see medical staff, in which he complained of
unspecified problems. Medical personnel responded that Abney was seen by medical provider,
Nurse Practitioner Michael Haun (“Nurse Haun”). On July 17, Abney submitted another request
to see medical staff in which he complained of abdominal pain “pretty often” and cough when
laying down at night. On July 22, Nurse Haun saw Abney for complaint of chronic pain. Abney
had regular heart rate and rhythm and his lungs were clear. Nurse Haun noted Abney’s
complaint of pain, but also noted that his “vital signs are amazingly normal for someone in ‘so
much pain.’” On August 5, Nurse Haun ordered a complete blood count, complete metabolic
panel and a lipid panel, which were performed. Abney’s red and white blood counts were once
again within normal limits, as were his hematocrit and hemoglobin. In fact, all of Abney’s labs
were normal with the exception of his BUN/creatinine ratio9 and his LDL cholesterol. On
November 3, 2010, Nurse Rhonda Harrison (“Nurse Harrison”) conducted Abney’s annual
physical exam. Abney’s vital signs were all were within normal limits. The
exam revealed Abney’s lungs to be clear with no wheezes with good air movement throughout.
His heart rate and rhythm were regular with no murmur, rubs, or gallops. Diagnostic tests
ordered in conjunction with the exam included labs, EKG, an eye exam and x-ray of his back.
On November 5, Abney underwent a series of lumbar spine x-rays. The findings were:
“Negative lumbar spine series.” A series of thoracic spine x-rays were also performed at this
time, and the impression was: “Negative Thoracic Spine Series.”

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On November 21, Abney submitted a request to see medical staff for follow-up of
his annual exam. Medical personnel responded that follow up was not scheduled until after
Abney’s lab work had been done. On November 30, Abney submitted another request to see
medical staff with complaint of “heavy feeling on his chest,” chest pains and pain
in left arm.
On January 12, 2011, the lab work ordered by Nurse Harrison was conducted and was
extremely thorough. Abney’s red and white blood counts were both normal, as were his
hematocrit and hemoglobin. In fact, all values measured were normal except for Abney’s
BUN/creatinine ratio, hemoglobin A1c and his LDL cholesterol calc. On January 31, Nurse
Harrison saw Abney for follow-up for his lab work and his complaint of chest pain. Abney
reported palpations, daily episodes of chest pain that he described as a sharp pain with tingling in
arms along with head pressure. Abney also reported a history of GERD. Examination revealed
that Abney’s lungs were clear, he had regular heart rate and rhythm with no murmur or gallop.
Nurse Harrison ordered an EKG for Abney and he was to continue with his current medications.
On February 28, 2011, Nurse Harrison ordered that Abney return for follow up if the EKG came
back abnormal or if he was not released from custody, as he expected. Abney was released from
custody in February of 2011. No further information with regard to the EKG is present in
Abney’s medical record.
II.
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FRCP 56(a). The
party moving for summary judgment bears the burden of demonstrating the absence of a genuine

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issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party’s burden may be discharged by demonstrating that there is an absence
of evidence to support an essential element of the nonmoving party’s case for which he or she
has the burden of proof. Id. Once the moving party demonstrates this lack of evidence, the
burden passes to the nonmoving party to establish, after an adequate opportunity for discovery,
the existence of a disputed factual element essential to his case with respect to which he bears
the
burden of proof. Id. at 322. If the record taken as a whole could not lead the trier of fact to find
for the nonmoving party, the motion for summary judgment should be granted. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Where the nonmoving party bears the burden of proof at trial, “a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all
other
facts immaterial.” Celotex, supra. at 323. The nonmoving party must do more than raise some
doubt as to the existence of a fact; the nonmoving party must produce evidence that would be
sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv.,
Inc., 738 F. Supp. 214, 217 (E.D. Mich. 1990). The moving party, therefore, is “entitled to a
judgment as a matter of law because the nonmoving party has failed to make a sufficient
showing on an essential element of [his] case with respect to which [he] has the burden of
proof.” Id. (internal quotation marks omitted).
The standard applied in reviewing the actions of prison doctors and medical staff in this
type of case is deferential. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (Third

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Cir. 1979). Courts will generally refrain from “second guessing” the adequacy of a particular
course of treatment where a prisoner has received some medical attention and the dispute
concerns the adequacy of that treatment. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir.
1976); see also White v. Napoleon, 897 F.2d 103, 110 (Third Cir. 1990); Christy v. Robinson,
216 F. Supp. 2d 398, 413-14 (D.N.J. 2002).
III.
To establish an Eighth Amendment violation premised on inadequate medical care, a
prisoner must demonstrate that the defendant acted, or failed to act, with “deliberate indifference
to serious medical needs.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)); Terrence v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834,
843 (6th Cir. 2002). Thus, to state a cognizable claim, a prisoner must show that the official
“acted or failed to act despite his knowledge of a substantial risk of serious harm” to the inmate.
Terrance, 286 F.3d at 843 (quoting Farmer, 511 U.S. at 842). Less flagrant conduct, however,
may still evince deliberate indifference where there is “a showing of grossly inadequate care as
well as a decision to take an easier but less efficacious course of treatment. Id. (quoting
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). Such grossly inadequate care is
“medical treatment ‘so grossly incompetent, inadequate, or excessive as to shock the conscience
or to be intolerable to fundamental fairness.’” Id. at 844 (quoting Waldrop v. Evans, 871 F.2d
1030, 1033 (11th Cir. 1989)).
The standard for deliberate indifference includes subjective and objective components.
Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001). When considering such a claim,
the Court should ask both if the officials acted with a sufficiently culpable state of mind and if

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the alleged wrongdoing was objectively harmful enough to establish a constitutional violation.
Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir. 1992). “[T]he subjective intentions of prison
authorities must be demonstrated by objective manifestations of such intent, and cannot be
proved by factually unsupported, conclusory opinions of the court or of the prisoners or their
representatives.” United States v. Michigan, 940 F.2d 143, 154 n.7 (6th Cir. 1991). In examining
deliberate indifference to medical needs, the Sixth Circuit has stated:
Officials may be shown to be deliberately indifferent to such serious needs
without evidence of conscious intent to inflict pain. However, the conduct
for which liability attaches must be more culpable than mere negligence; it
must demonstrate deliberateness tantamount to intent to punish.
Knowledge of the asserted serious needs or of circumstances clearly
indicating the existence of such needs, is essential to a finding of
deliberate indifference.
Horn by Parks v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994) (citations
omitted).
The objective component of an Eighth Amendment deliberate indifference claim is
governed by “contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992).
[O]nly those deprivations denying “the minimal civilized measure of life’s
necessities” are sufficiently grave to form the basis of an Eighth Amendment
violation. A similar analysis applies to medical needs. Because society does not
expect that prisoners will have unqualified access to health care, deliberate
indifference to medical needs amounts to an Eighth Amendment violation only if
those needs are “serious.”
Id. at 9 (citations omitted).
A.
As the deliberate indifference standard clearly dictates, the subjective prong of the test
requires that the plaintiff demonstrate that the official, “acted or failed to act despite his
knowledge of a substantial risk of serious harm” to the inmate. Terrance, 286 F.3d at
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843 (quoting Farmer, 511 U.S. at 842). The only documented expression of Abney’s concern
about asbestos exposure is in a “request to see staff” form dated October 26, 2009. Personnel
responsible for screening Abney’s request form clearly stated on it that, because Abney already
had an appointment scheduled in the near future, he should raise his concerns at that time. He did
not.
Nurse Washington saw Abney only four days later on October 30 and there is no
indication that Abney ever brought up the topic of asbestos or the possibility of being screened
for exposure at that time. Moreover, Abney received an abundance of care with regard to
chronic knee problems, hemorrhoids, skin problems and other issues. He had numerous and
frequent contact with Nurse Washington and many other care providers as well. No creditable
evidence suggests that Abney raised the subject of asbestos or asbestos screening with Nurse
Washington. Without knowledge of a serious medical problem, a care provider, such as Nurse
Washington, cannot act with deliberate indifference. Terrance, 286 F.3d at 843. Abney’s claims
against Nurse Washington must fail for that reason alone.
B.
Abney alleges that Nurse Washington was deliberately indifferent to his serious medical
need by denying him the “right” to be examined for exposure to known carcinogens after
repeatedly reporting his exposure. Abney states in his “Factual Material Issue’s In Dispute
of 42 U.S.C. 1983 Complaint” that, “…after continuous attempts to provide medical with request
to evaluate blood levels and to conduct test to examine…Abney of results of any exposure to the
lead Paint materials, or Asbestos, he was deliberately ignored. …KSR Medical denied Mr.
Abney Medical Attention to either Prove or Disprove his claim of being Exposed to the

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chemicals, and as to whether contact did in fact occur.”
Even assuming that Abney was in fact exposed to asbestos and Nurse Washington was
informed of this, there is currently no recommended or strongly supported screening protocol for
asbestos exposure. This is consistent with statements made by the Agency for Toxic Substances
and Disease Registry in a report from 2001. This report stated, specifically with regard to the
question of whether or not there is a test to determine a person’s exposure to asbestos:
A thorough history, physical exam, and diagnostic tests are needed to evaluate
asbestos-related disease. Chest x-rays are the best screening tool to identify lung
changes resulting from asbestos exposure. Lung function tests and CAT scans
also assist in the diagnosis of asbestos-related disease.
Chest x-rays are, therefore, the most common and useful tool with regard to detecting
asbestos related disease. But chest x-rays only detect signs of asbestos-related disease—not
exposure to asbestos. A chest x-ray at or near the time Abney filed his request to see staff on
October 26, 2009 would have had no diagnostic or therapeutic value. He had just undergone a
chest x-ray on September 11, 2009—about six weeks earlier. Findings of that chest x-ray were
“normal.” Nurse Washington discussed this finding with Abney on September 23, as well as the
findings of the lab work, which were “unremarkable.” Since a chest x-ray is only useful to
visualize the onset of asbestos related disease, which can take decades to develop after exposure,
another chest x-ray in October would have not been medically appropriate or beneficial.
Abney also underwent two x-ray studies on November 5, 2010; a portable lumbar spine
and a portable thoracic. While neither of these studies was directed at detection of asbestos
related disease, the thoracic x-ray was of Abney’s chest region, the radiologist would have
commented on and any abnormalities indicated on the films.
Abney also underwent frequent lab studies, spanning from just after he started on the
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work detail until only a few weeks before his release. Almost without exception, Abney’s labs
were normal during this entire time and his white and red blood cell counts always came back
normal.
C.
In his request to see medical staff submitted October 26, 2009, Abney only wrote that he
had possibly been exposed to lead paint dust. He never raised this issue when he saw Nurse
Washington on October 30. Nurse Washington is shown, once again, to be without knowledge
of Abney’s complaints, and once again the subjective component of the deliberate indifference
standard cannot be satisfied. Terrance, 286 F.3d at 843.
Nurse Washington saw Abney frequently and Abney never displayed any symptoms of
lead poisoning, which include: abdominal pain and cramping; aggressive behavior; anemia;
constipation; difficulty sleeping; headaches; irritability; low appetite and energy; and reduced
sensations. More importantly, a complete blood count can be a useful tool in diagnosing lead
poisoning, and Abney’s complete blood counts were always normal. Abney’s red blood cell
count and white blood cell count remained within normal limits from March of 2009 through
November of 2011. Washington had no medical basis for believing that Abney suffered from
lead poisoning.
D.
Finally, Abney never told Washington he was having problems with dizziness and
blurred vision. Taking Abney’s request to see medical staff as accurate, Abney requested to
have his eyes checked; he checked the box for “Eye Doctor” as the department to whom he was
submitting his request. Further, Washington saw Abney for the last time on April 27, 2010,

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Abney’s request is dated July 27, 2010. Without knowledge of a serious medical problem, a care
provider, such as Nurse Washington, cannot act with deliberate indifference. Terrance, 286 F.3d
at 843.
In his amended complaint, Abney alleges that he was denied examinations for reported
dizziness and blurred vision from October of 2009 through February of 2011. Abney was seen
frequently by medical staff and made numerous requests to see staff; yet there is but one instance
in Abney’s medical records where he complained to anyone about dizziness and blurred vision
except for the request to see staff form, and that was during his annual physical exam on
November 3, 2010. Abney stated that he had experienced blurred vision and had not had an eye
exam for four years. Nurse Harrison ordered an appointment be scheduled for Abney with the
eye clinic.
IV.
Abney, in his Amended Complaint, alleges that Dr. Kemen was responsible for
his medical care. Dr. Kemen had no direct involvement with any of Abney’s medical care and,
in fact, Dr. Kemen’s name does not appear a single time in Abney’s medical record. Abney
appears to have based his charge of responsibility on Dr. Kemen’s position as “head of medical.”
Abney alleges that he filed grievances concerning his desire to be screened for exposure to
carcinogens and was not, and as a result his vision and breathing have worsened.
Because Dr. Kemen had no personal involvement with Abney’s care, the allegations
against Dr. Kemen can only be framed as one sounding in respondeat superior. However, the
Court has already stated a prior Memorandum and Order (DN 19), “Respondeat Superior is not a
proper basis for liability under § 1983.” Id. at 6 (quoting McQueen v. Beecher Cmty. Schs., 433

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F.3d 460, 470 (6th Cir. 2006)). For supervisory liability to attach, a plaintiff must prove that the
official ‘did more than play a passive role in the alleged violation or showed mere tacit approval
of the goings on.’ Loy v. Sexton, 132 Appx. 624, 626 (6th Cir. 2005) (quoting Bass v. Robinson,
167 F.3d 1041, 1048 (6th Cir. 1999)). Therefore, liability of a supervisor under § 1983, must be
based on active unconstitutional behavior and cannot be based on a failure to act. Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Salehpour v. University of Tennessee, 159
F.3d 199, 206 (6th Cir. 1998)).
To establish liability of a supervisor, a plaintiff must show that the supervisor at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of his
subordinates. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). This Abney cannot do,
because there was no unconstitutional conduct on the part of Dr. Kemen’s subordinates.
McQueen v. Beecher Community Schools et al., 433 F.3d 460, 470 (6th Cir. 2006). Abney’s
allegations against Dr. Kemen based on his supervisory capacity must fail as a matter of law.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants’ motion for summary judgment is
SUSTAINED and Plaintiff’s claims against Frederick W. Kemen and Roy Washington are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ motion to amend the scheduling order is
now MOOT.

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September 6, 2012

cc:

Counsel of Record

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