Violett v. Dowden et al

Filing 61

MEMORANDUM OPINION AND ORDER Signed by Judge Rebecca Grady Jennings on 8/3/2018. Plaintiff's motions for preliminary injunctive relief (DNs 28 , 38 , and 40 ) are DENIED. Plaintiff's motion to strike Defendant Domalewski's response (DN 51 ) is DENIED. See Memorandum Opinion and Order for details. cc: Counsel, Pro Se Plaintiff (MEJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:17CV-P531-RGJ

DONALD R. VIOLETT

PLAINTIFF

v.
CASEY DOWDEN et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Donald R. Violett, a prisoner incarcerated at the Kentucky State Reformatory
(KSR), filed the instant pro se action. After conducting an initial review of the matter pursuant
to 28 U.S.C. § 1915A, the Court allowed some of Plaintiff’s claims to proceed, including an
Eighth Amendment claim against Defendant LPN Domalewski based on allegations that
Domalewski placed Plaintiff on a back board, which he was not qualified to do, and dropped
Plaintiff face first into the concrete floor causing him injuries. This matter is before the Court on
three filings by Plaintiff seeking medical treatment, which the Court has construed as motions for
preliminary injunction (DNs 28, 38, and 40).
I.
In the first filing (DN 28), Plaintiff filed an affidavit and “motion to compel proper
medical exams/treatment by an expert doctor for [his] neck injuries.” Plaintiff states that after
the incident in which he was dropped, he was taken to Baptist Hospital in LaGrange, Kentucky,
for examination. He asserts that since that time he has suffered from a neck injury and has
experienced numbness in his fingers, hands, lower arms, and lower legs. He states, “Now
Correct-Care Solution [CCS] has gave conflicting statements about the neck injury.” He
maintains that one healthcare provider told him that “the MRI and x-rays shows Plaintiff has a

pinched nerve in [his] neck causing the complete numbness of Plaintiff’s fingers, hands, and
lower arms as well as numbness to Plaintiff’s lower legs.” Plaintiff states that this medical
provider “is no longer employed by CCS because he told the truth about Plaintiff’s health
problems.” Plaintiff states that another CCS healthcare provider “alludes the Plaintiff has
arthritis and that is the cause for the numbness in the Plaintiff’s fingers, hands, lower arms, and
lower legs.” He further states that CCS physical therapy providers told him that he has a pinched
nerve in his neck area which is causing the numbness and that he was started on physical
therapy. Plaintiff requests the Court to issue an order “directing the named Defendants have
proper medical exams and treatments (including surgery) by an expert Doctor so the Plaintiff can
be relieved of severe pain and suffering the Plaintiff has had seen been dropped face first on to a
concrete floor.”
Defendants Casey Dowden, John Hall, and Anna Valentine filed a response to the motion
(DN 29). They argue that Plaintiff admits that he has received medical treatment, that he is not
entitled to see a doctor outside the prison for his injuries, and that he provides no evidence to
support his claims. These Defendants attach no medical records to their response.
Plaintiff did not file a reply, but he did file a document which he captioned as an affidavit
(DN 38), stating that he had a medical appointment scheduled for March 12, 2018, but that he
did not find out about it until after the fact. He states, “Defendants claim Plaintiff is receiving
‘medical services’ which is not true. Defendants file false paper work, making false claims.”
(Emphasis by Plaintiff omitted.) Plaintiff also maintains that Nurse Barbara refused to discuss
the missed appointment with him and later “called to say Plaintiff had lost all rights to use a
walker and Plaintiff would have to sign up for sick call for Doctor Amos to consider if Plaintiff
would get to use a walker again.” Plaintiff states, “This is clear harassment on the part of

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Defendants because Plaintiff needs a walker to walk anywhere he goes because of his injuries . . .
and to help prevent further falls.” (Emphasis by Plaintiff omitted.) Plaintiff alleges deliberate
indifference on the part of Dr. Amos for taking away his walker “with approval” of Defendant
Valentine. Plaintiff requests an order “for all Defendants to stop all harassment toward Plaintiff
and Plaintiff receive a walker or wheelchair to be able to walk and get around.”
In Plaintiff’s third filing (DN 40), he states that he “is in great serious pain” from the
numbness in his extremities and that “KSR physical therapy has stopped treatment as the
physical therapy treatments were not helping the Plaintiff and KSR medical will not see the
Plaintiff or send the Plaintiff to an outside hospital or expert to find the problem with Plaintiff
having numbness in fingers, hands, and lower arms.”
By Memorandum and Order (DN 47) entered June 4, 2018, the Court ordered all
Defendants to file a fully supported response to the motions for preliminary injunction within
14 days. The Court directed that the response must specifically address Plaintiff’s allegations
that he is currently being denied medical treatment for his injuries.
Defendants Dowden, Hall, Valentine, Teresa Turner, Sgt. Lefebvre, and Sgt. Royalty
(the “KSR Defendants”) filed a response (DN 48). They argue that they are not medical
providers and have no authority to order that Plaintiff be provided medical care, or more
specifically, to order that he be seen for medical treatment outside the prison. They assert that
Defendant Valentine, a Deputy Warden, reviewed a “Patient Summary,” which they attach,
showing that Plaintiff has had 41 medical appointments in the last six months. They state, “It
appears that Plaintiff has rarely gone a week without medical attention and the summary shows
that he already has additional appointments scheduled in June, July and August.” The KSR
Defendants also point to Plaintiff’s medical records which show that while the use of his walker

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was discontinued on March 13, 2018, he was issued another walker on March 15, 2018. They
state that the “Patient Summary” reflects that Plaintiff received physical therapy through
April 19, 2018. They argue, “The Plaintiff merely disagrees with the medical decision, without
offering any medical evidence that the decision is wrong.” These Defendants further maintain,
“The Plaintiff admits he is receiving medical treatment from multiple healthcare providers, but
objects to their opinions as to the cause of numbness in his extremities.”
Plaintiff filed a reply (DN 49), in which he states that some of the medical appointments
described by Defendants were for physical therapy and that “the physical therapy was not
helping the Plaintiff with his numbness of the fingers, hands, lower arms and, lower legs . . . .”
He again describes the missed medical clinic appointment which he described in his prior
affidavit.1 He further states the following:
Plaintiff has not received any medical treatment since his injury in September
2018, and, setting appointments then canceling those appointments is not medical
treatments and the Defendants have not produced sufficient medical records as
this Court so ordered June 4, 2018. The Plaintiff is complaining to the proper staff
about the lack of medical treatment and those staff is investigating why he
Plaintiff is not receiving prompt medical treatment and, the Defendants has
supplied false and misleading information to this Court, which requires a court
hearing so the Plaintiff can present his evidence, witnesses, and proof he is not
receiving prompt or proper medical treatment. If nurse Barbara decides that she
does not want Dorm 12 clinic to see you, nurse Barbara will file false information
and cancel appointments.
Plaintiff attaches to his reply a document he captions as an “Affidavit.” He again
describes the missed appointment. Further, he asserts that he has “never received any medical
treatment from Dorm 12 clinic for numbness in my fingers, hands and lower arms as well as
lower legs.” He states that Dorm 12 cannot treat him for the numbness or “prescribe any thing
for pain . . . .” He states, “Anna Valentine override any medical decisions is why I am not
1

In the instant reply, Plaintiff states that the missed medical appointment occurred April 13, 2018. However, in his
prior affidavit, he describes the missed appointment to have taken place on March 13, 2018. The medical records
show that the missed appointment was on March 13, 2018.

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receiving my medical treatment because she knows her staff hurt me in September 2017 and for
Dorm 12 Clinic to treat or prescribe something for pain will admit they injuried me.” He also
filed a copy of a letter he sent to a Health Services Administrator describing his medical ailments
and provides handwritten comments on the “Patient Summary” attached to Defendants’
response. He also complains that his housing location is not close to prison services and attaches
a handwritten map of his housing area.
Defendant LPN Domalewski, apparently an employee of CCS, also filed a response to
the motions for preliminary injunction. He largely reiterates the arguments made by the KSR
Defendants. In addition, he attaches medical records of Plaintiff, including an “Issue of Durable
Medical Equipment” form showing that Plaintiff was issued a rolling walker on March 15, 2018.
He also attaches medical records from medical appointments concerning other ailments on the
following dates in 2018: May 9, May 14, May 18, May 22, June 7, and June 20. Defendant
Domalewski also attaches a medical record for a sick call appointment on May 7, 2018, which
under the heading “Assessment” states as follows:
I/M came to sick call this AM with c/o of chronic numbness and pain to arms and
hands. I/M was in physical therapy and finished in April. States pain is 6 to 7 on
scale of 1-10 most of the time. I/m states he takes no medications for pain. I/M
uses walker, states he can feel hands on walking alot r/t numbness. I/m states he
had fall last September which caused his issues with arms and hands. I/m also
c/o’s of weakness to lower Ext[re]mities when walking.
The medical record states under the heading “Plan”: “Notes: I/m requesting follow-up with
pro[vi]der, states physical therapy didn’t help much. I/m has appt. 6/4 for CC and can address
chronic pain and numbness with provider at that time.” Defendant Domalewski also attaches
Plaintiff’s medical record from a Chronic Care Nurse Visit on June 6, 2018. However, it is
unclear from this record what treatment was given on that date.

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Plaintiff filed a reply to Defendant Domalewski’s response in which he also moves to
strike the filing as frivolous. He argues that Defendant Domalewski “has supplied this Court
with frivolous information, not submitting any medical records to support his malicious claims.”
Plaintiff again takes issue with Defendants’ contention that he has had 41 medical appointments
so far this year because he claims some of the medical appointments were for unrelated ailments,
such as “OPS (psycho doctor),” eye clinic, and physical therapy. He states, “Dr. Manning saw
Plaintiff briefly on June 17, 2018 after the Plaintiff was released from the University of
Louisville Hospital on June 15, 2018. Plaintiff was placed in the Nursing Care Facility (NCF) at
KSR for further problems with numbness to fingers, hands, lower arms and lower legs.” Plaintiff
also complains of continuing medical ailments.
III.
At the outset, in his affidavit (DN 38) and subsequent filings, Plaintiff repeatedly argues
that Nurse Barbara harassed him, caused him to miss a medical appointment, and, along with Dr.
Amos, caused him to lose his walker. These are not claims Plaintiff alleged in his complaint or
amended complaint. By Memorandum and Order (DN 46) entered June 4, 2018, the Court gave
Plaintiff the opportunity to file a motion to supplement his complaint and amendment with the
claims stated in his affidavit within 30 days. The Court warned Plaintiff that if he failed to
comply with the Order within the allotted time he would not be permitted to assert those claims
in this action. More than 30 days have passed, and Plaintiff did not file a motion to supplement
the complaint. Therefore, the claims stated in Plaintiff’s affidavit and repeated in subsequent
filings are not part of this action, and the Court need not address them herein. If Plaintiff wishes
to assert those claims, he must file a separate action. The Court notes that to the extent he

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requested to be issued a walker or wheelchair, the request is now moot since he was given
another walker on March 15, 2018.
Turning to Plaintiff’s motions for preliminary injunction, preliminary injunctive relief is
an extraordinary remedy “which should be granted only if the movant carries his or her burden of
proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cty.
Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). In determining whether to grant a preliminary
injunction, “‘the district court is required to consider four factors: (1) whether the movant is
likely to prevail on the merits; (2) whether the movant would suffer an irreparable injury if the
court does not grant a preliminary injunction; (3) whether a preliminary injunction would cause
substantial harm to others; and (4) whether a preliminary injunction would be in the public
interest.’” Abney v. Amgen, Inc., 443 F.3d 540, 547 (6th Cir. 2006) (quoting Deja Vu of
Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., 274 F.3d 377, 400 (6th Cir. 2001)).
Although no single factor is controlling when determining whether a preliminary
injunction should be issued, the likelihood of success on the merits is often the predominant
consideration. Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000) (“[A]
finding that there is simply no likelihood of success on the merits is usually fatal.”); Mich. State
AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997) (“[W]hile, as a general matter, none of
[the] four factors are given controlling weight, a preliminary injunction issued where there is
simply no likelihood of success on the merits must be reversed.”).
Plaintiff has not shown that he is likely to prevail on the merits. 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));

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Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834 (6th Cir. 2002). To rise to the
level of an Eighth Amendment violation, a prison official must “know of and disregard an
excessive risk to inmate health or safety; the official must both be aware of the facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Farmer v. Brennan, 511 U.S. at 837-38. 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. Westlake v. Lucas, 537 F.2d 857, 860
n.5 (6th Cir. 1976).
We distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received
inadequate medical treatment. 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.
Id. (citations omitted). Mere disagreement over medical treatment cannot give rise to a
constitutional claim of deliberate indifference. Durham v. Nu’Man, 97 F.3d 862, 869 (6th Cir.
1996).
The “Patient Summary” attached to the KSR Defendant’s response shows that Plaintiff
had a physical therapy consultation for “Cervicalgia” on February 19, 2018, and received
physical therapy from February 20 to April 19, 2018. Plaintiff does not dispute that the physical
therapy was intended to treat his neck and numbness problems, although it was apparently
unsuccessful. Further, the medical record attached to Defendant Domalewski’s response for
May 7, 2018, shows that Plaintiff was seen by medical personnel in a sick call appointment for
his complaints of numbness in his extremities. He was told to address his chronic pain and
numbness at his next chronic care appointment. Moreover, in Plaintiff’s reply to Defendant
Domalewski’s response filed on June 26, 2018, he states, “Plaintiff was placed in the Nursing
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Care Facility (NCF) at KSR for further problems with numbness to fingers, hands, lower arms
and lower legs.”
Based on Plaintiff’s own assertions and the medical records provided by Defendants, it is
clear that Plaintiff has been seen by KSR medical personnel for his complaints of neck pain and
numbness in his extremities over a period of months and that Plaintiff’s dispute is with the
adequacy of the treatment. While it is evident that the treatment has not yet alleviated his
numbness problems, Plaintiff fails to show that Defendants knew of and disregarded an
excessive risk to inmate health or safety. “[T]he proof required for the plaintiff to obtain a
preliminary injunction is much more stringent than the proof required to survive a summary
judgment motion.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000); accord Schrier v.
Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (“As a preliminary injunction is an
extraordinary remedy, the right to relief must be clear and unequivocal.”). While Plaintiff
disagrees with the course of treatment and requests to see an outside specialist, the Court will not
second guess the medical judgments of the KSR medical personnel and finds that Plaintiff’s
allegations do not give rise to a constitutional violation. Therefore, Plaintiff has failed to
establish a likelihood of success on the merits.
Furthermore, to meet the irreparable injury component of a motion for preliminary
injunctive relief, a movant must show “‘actual and imminent’ harm rather than harm that is
speculative or unsubstantiated.” Abney, 443 F.3d at 552. Plaintiff has failed to show that his
need for the requested treatment is actual and imminent. In fact, he states that he is currently
housed in the Nursing Care Facility for his numbness problem. Therefore, it is evident that
Plaintiff is currently receiving care for his complaints of numbness.

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The third and fourth elements also weigh against granting preliminary injunctive relief. It
is generally in the best interests of all if courts refrain from becoming involved in day-to-day
prison operations. Moreover, the Court’s intervention in internal prison operations without an
urgently compelling and extraordinary reason is viewed as against the public interest. Lang v.
Thompson, No. 5:10-CV-379, 2010 U.S. Dist. LEXIS 126890, at *19 (E. D. Ky. Nov. 30, 2010)
(“[J]udicial interference is necessarily disruptive, and absent a sufficient showing of a violation
of constitutional rights, the public welfare suffers if such extraordinary relief is granted in the
prison context.”).
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motions for preliminary
injunctive relief (DNs 28, 38, and 40) are DENIED.
In addition, in regards to Plaintiff’s motion to strike Defendant Domalewski’s response,
while Plaintiff disputes the characterization of his medical records, he fails to show that the
response contains anything other than legal argument. Therefore, there is no basis for striking
the response. Accordingly, IT IS ORDERED that Plaintiff’s motion to strike Defendant
Domalewski’s response (DN 51) is DENIED.
Date:

August 3, 2018

cc:

Plaintiff, pro se
Counsel of record
4415.010

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