Dahms v. Kentucky Department of Corrections et al
MEMORANDUM OPINION by Senior Judge Charles R. Simpson III on 10/4/2019 - For the reasons stated in the Memorandum Opinion Plaintiff's motion for summary judgment, (DN 27 ), will be DENIED, Defendants' motion for summary judgment, (DN 30 ), will be GRANTED, and Plaintiff's additional motions, (DNs 25 , 26 , 42 ) will be DENIED AS MOOT. A separate order will be entered this date in accordance with this opinion. (KD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:18-CV-63
CORRECT CARE SOLUTIONS, LLC, et al.,
This matter is before the Court on motion for summary judgment by Plaintiff, (DN 27),
motion for summary judgment by Defendants, (DN 30), and three additional motions by Plaintiff,
(DNs 25, 26, 42). For the following reasons, Plaintiff’s motion for summary judgment, (DN 27),
will be DENIED, Defendants’ motion for summary judgment, (DN 30), will be GRANTED, and
Plaintiff’s additional motions, (DNs 25, 26, 42) will be DENIED AS MOOT.
I. Procedural History
David Dahms, a pro se plaintiff prisoner, originally brought this action against 18
defendants who were associated with his medical care following a back surgery he received, while
incarcerated, on September 20, 2017. (DN 1). Dahms filed his original complaint on January 30,
2018, alleging negligence, intentional infliction of emotional distress/outrage, intentional
obstruction/denial of access to the courts, retaliation, and violations of the United States
Constitution. (DN 1). “[U]nable to determine what actions Plaintiff alleges each Defendant took
or failed to take,” the Court permitted Dahms to file an amended complaint prior to conducting its
initial review. (DN 6). Dahms filed his amended complaint on May 16, 2018, clarifying his claims
and narrowing his list of defendants to seven. (DN 7). After an initial screening by this Court, the
only remaining claims are (1) a 42 U.S.C. § 1983 Eighth Amendment claim against Nurse Betsy
Ramey and Dr. Elton Amos, in their individual capacities, and (2) state-law negligence and
intentional infliction of emotional distress claims against Nurse Betsy Ramey, Dr. Elton Amos,
and Correct Care Solutions, LLC (“Defendants”). (DN 11, p. 4). Plaintiff filed a “motion for
summary judgment and motion for settlement conference” on February 8, 2019. (DN 27). In his
motion, Plaintiff restates the Eighth Amendment claim from his amended complaint: Defendants’
failure to provide Plaintiff the exact medications prescribed by his surgeon amounted to “conduct
that was deliberately indifferent to Plaintiff’s serious medical need….” (Id. at 2). On February
15, 2019, Defendants filed their own motion for summary judgment. (DN 30, p. 15). Regarding
Plaintiff’s Eighth Amendment claim, Amos and Ramey argue that (1) plaintiff failed to exhaust
his administrative remedies prior to filing this lawsuit and (2) “the undisputed facts establish that
no reasonable jury could conclude that any defendant acted with the requisite culpable mental state
to establish deliberate indifference.”
In an attempt to excuse his failure to exhaust
administrative remedies before filing suit, Plaintiff filed a motion to reopen discovery to obtain
evidence that prison officials had implemented a moratorium on answering prisoner complaints
during times which Defendant had filed grievances. (DN 42).
II. Factual Background
Plaintiff alleges, and Defendants do not dispute, that Plaintiff suffered a back injury in
November, 2016. (DN 29, p. 1). After the back injury, but before receiving surgery, Plaintiff’s
prescription medications included: Phenergan (25 mg tablet twice daily); gabapentin (800 mg
tablet twice daily); diphenhydramine (25 mg capsule at bedtime); tramadol (two 50 mg tablets as
needed three times a day); and duloxetine (20 mg capsule at bedtime). (DN 32, p. 32). On
September 19, 2017, Plaintiff “underwent a minimally invasive transforaminal lumbar interbody
fusion at L4-5” at the University of Kentucky Medical Center (“UKMC”). (Id. at 40). After the
operation, Plaintiff’s surgeon, Dr. Raul Vasquez Castellanos, reported that Dahms “tolerated the
procedure well and did well post-operatively without any immediate complications.” (DN 19-1,
p. 1). Dr. Castellanos also recorded that Dahms was “ambulating” and his “pain [was] well
controlled” with oral medication. (Id.). In his discharge report, Dr. Castellanos noted under the
section titled “Medication Instructions” that Plaintiff was to “Take Medication exactly as
instructed.” (Id. at 3). Doctor Castellanos prescribed the following medications: acetaminophen
(325 mg - 2 tablets every 4 hours, as needed for a fever or mild pain); diazepam (5 mg – 1 tablet
every 4 hours), docusate sodium (100 mg capsule - 2 times a day); gabapentin (300 mg capsule 3 times a day); oxycodone acetaminophen (every 4 hours, as needed for moderate to severe pain);
and senna (17.2 mg tablet – once a day).
(DN 19-1, p. 2).
Doctor Castellanos further
recommended Plaintiff be transferred to a facility with physical therapy services. (DN 19-1, p. 1).
Dr. Castellanos reported that Plaintiff “received the full benefit of hospital stay” and that he was
“ready for discharge” to the care of Eastern Kentucky Correctional Complex (“EKCC”) on
September 21, 2017. (DN 19-1, p. 1). On September 22, 2017, at the request of medical staff,
prison officials transferred Plaintiff to the Kentucky State Reformatory (“KSR”), a facility with
post-surgery physical therapy services. (DN 32, p. 24–28).
While at KSR, prison staff did not provide Dahms with the medications prescribed by Dr.
Castellanos. (DN 32, p. 16). Instead, Plaintiff continued receiving his pre-surgery medications,
with the exception of duloxetine (cancelled on September 22, 2017). (Id.). On September 27,
2017, Plaintiff submitted a sick call request regarding continued post-operative pain to officials at
KSR. (DN 32, p. 11). At that time, Plaintiff stated tramadol “provide[d] relief” for his pain, but
he was being denied adequate medical care by not receiving additional pain medication. (DN 32,
p. 11). Plaintiff filed a series of grievances with KSR concerning his allegedly inadequate medical
care, starting in October 2017 and continuing through January 2018.
Although Dahms worded each grievance differently, his core complaint was essentially the
same1 as his § 1983 Eighth Amendment claim: (1) Dahms was in continued pain, (2) his pain was
a direct result of prison staff not filling the exact prescriptions provided by Dr. Castellanos, and
(3) denial of those prescriptions constituted a violation of his rights. The dates of Dahms’
grievances relevant to his § 1983 claim, as well as the dates of final exhaustion, are summarized
Date of final exhaustion
October 10, 2017
June 14, 2018
DN 30-2, p. 65–83
December 5, 2017
February 5, 2018
DN 30-2, p. 20–29
December 11, 2017
May 16, 2018
DN 30-2, p. 30–38
December 21, 2017
February 5, 2018
DN 30-2, p. 40–47
January 19, 2018
February 5, 2018
DN 30-2, p. 48–56
III. Plaintiff’s § 1983 claim
A. Exhaustion of administrative remedies
Defendants Ramey and Amos move this Court for summary judgment on Plaintiff’s § 1983
claim on the grounds that Dahms failed to exhaust his administrative remedies prior to filing his
In addition to the grievances complaining of pain and inadequate medical care, plaintiff filed one grievance, 180344, solely to protest that an earlier grievance, 17-1154, had not been resolved. (DN 30-2, p. 60–64).
After filing Grievance 17-1154 on December 5, 2017, Plaintiff did not receive an answer to his final appeal as
quickly as he had anticipated. (DN 30-2, p. 65–83). Plaintiff filed Grievance 18-0344 on February 21, 2018 to
complain of the prison staff’s untimeliness. (Id. at 60). In response, Dahms was directed to re-file Grievance 171154 as Grievance 18-0837. (Id. at 66). Dahms refiled Grievance 17-1154 (now labeled Grievance 18-0837) on
May 17, 2018, and the medical director issued a final response on June 14, 2018. (Id. at 71).
original complaint. (DN 30, p. 8). Dahms responds that this Court should excuse his failure to
exhaust his administrative remedies because the Grievance Office was in a state of moratorium3
during the period in which Plaintiff filed grievances. (DN 43, p. 1). Plaintiff’s argument is without
merit because (1) Plaintiff failed to exhaust his administrative remedies prior to filing this action
and (2) a moratorium does not excuse Plaintiff’s failure to exhaust his administrative remedies
prior to filing suit.
1. Legal standard
The Prison Litigation Reform Act (“PLRA”) requires that a prisoner bringing an action
with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available
administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S.
731 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may
not be able to obtain the specific type of relief he seeks through the state administrative process.
See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. Prisoner grievance procedures under the
PLRA provide prison staff with the opportunity to respond to complaints and create an
administrative record for the court in the event that a prisoner files a lawsuit. Jones v. Bock, 549
U.S. 199, 204 (2007). To properly exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with the deadlines and other applicable procedural
rules. Id. at 218; Woodford v. Ngo, 548 U.S. 81, 90–91 (2006). “Compliance with prison grievance
procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’” Jones, 549 U.S.
at 218. Exhausting administrative remedies after filing suit is inadequate to survive dismissal
If a prison Grievance Coordinator receives a significant number of grievances, he or she may call a “moratorium”
on the ordinary time limits for responding to those grievances. Kentucky's Corrections Policies and Procedures,
14.6 II.F. “If a moratorium on time limits is called, the affected grievances shall be processed within a reasonable
time given the other duties of the staff involved and the affected grievants shall be notified in writing.” (Id.).
under the PLRA. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (“The prisoner,
therefore, may not exhaust administrative remedies during the pendency of the federal suit.”).
2. Failure to exhaust administrative remedies
Defendant did not exhaust his administrative remedies, as required by the PLRA, before
filing suit. Dahms filed five grievances with Kentucky’s Department of Corrections alleging that
he was constitutionally entitled to receive the medications prescribed by Dr. Castellanos. Dahms
filed the earliest of these grievances, Grievance 17-1154, on October 10, 2017 and the latest of
these grievances, Grievance 18-0152, on January 19, 2018. Mr. Dahms did not exhaust his final
administrative remedy (for Grievance 17-1154) until June 14, 2018—almost five months after
filing his original complaint. The PLRA mandates that “No action shall be brought with respect
to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” § 1997e(a). Therefore, the remaining question before the court is
whether administrative remedies were “available” to Dahms or if circumstances otherwise excuse
Dahms from meeting the PLRA’s failure-to-exhaust requirement.
3. Excuses for failure to exhaust administrative remedies
Because Dahms failed to exhaust his administrative remedies before filing his complaint,
and Defendants pled failure to exhaust administrative remedies as an affirmative defense, Dahms’
Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 918 (2007); Ross v. Blake, 136 S. Ct. 1850, 1856
(2016). The Supreme Court has identified three circumstances in which an administrative remedy
is “unavailable” to a plaintiff, effectively excusing the exhaustion requirement: first, when prison
“officers [are] unable or consistently unwilling to provide any relief;” second, when a grievance
process is “so opaque” that it is “incapable of use;” and third, when prison officers “thwart inmates
from taking advantage of a grievance process.” Id. at 1859–60. Additionally, the Sixth Circuit
has held that plaintiffs may add newly-exhausted claims to an amended complaint when the
original complaint was filed with at least one properly exhausted claim. Mattox v. Edelman, 851
F.3d 583, 595 (6th Cir. 2017). None of the exceptions to the PLRA’s exhaustion requirement
apply to Dahms.
First, prison officials were not “unable or consistently unwilling to provide any relief” to
Mr. Dahms. Ross, 136 S. Ct. at 1859. Although prison officials were unwilling to provide the
specific relief sought (i.e. the exact medications prescribed by Dr. Castellanos), they provided
alternative pain medication that, in Plaintiff’s own words, “provide[d] relief.” (DN 32, p. 11). In
addition to providing pain medication, prison medical staff also reviewed Mr. Dahms’ psychiatric
state, (DN 32, p. 4), treated the incision cite when Plaintiff complained of itching (DN 32, p. 6),
transferred Plaintiff to a prison facility that provided physical therapy (DN 32, p. 7), provided
Plaintiff with a wheelchair, (DN 32, p. 26), provided Plaintiff with a back brace, (DN 32, p. 28),
and responded to each of Plaintiff’s health grievances (DN 30-2, p. 20-83). Prison officials also
transported Defendant to UKMC for follow-up visits on two occasions to see three non-prison
medical providers. (DN 32, p. 45–44). Each of these actions demonstrate a consistent ability and
willingness by prison staff, including Amos and Ramey, to provide relief related to Mr. Dahms’
Second, there is no indication that any part of the grievance process was “opaque” to Mr.
Dahms. According to the record before the Court, Mr. Dahms filed at least eight grievances
between November 27, 2017 and January 19, 2018. (DN 32, p. 45–44). These grievances range
from the alleged loss of his Nintendo DS (prison staff located the device and returned it to
Plaintiff), (DN 30-2, p. 3–19), to a complaint about unauthorized medical charges (prison staff
identified erroneous charges and reimbursed Plaintiff’s account), (DN 30-2, p. 57–58). Based on
this record, Mr. Dahms understood the grievance process well and took advantage of it on
numerous occasions—even if he occasionally disagreed with the outcome.
Third, there is no evidence that prison officers “thwarted” Mr. Dahms from taking
advantage of the grievance process. Prison officials never prevented Mr. Dahms from filing a
grievance, never stopped him from filing an appeal, and never barred him from seeking a final
review from the Department of Corrections Medical Director’s Office. (DN 30-2, p. 1–91). Far
from thwarting his grievances, prison officials responded with an informal resolution to each
grievance, assembled a grievance committee to reply to each appeal, and elevated all of Dahms’
final medical appeals to the medical director for disposition. Id. Although prison officials may
not have responded to each of his grievances as quickly as Plaintiff would have liked, this is no
excuse for Dahms’ failure to exhaust available remedies prior to filing suit.
Finally, Mr. Dahms does not qualify for exemption from the administrative exhaustion
requirement of the PLRA based on the filing date of his amended complaint. In Mattox v. Edelman,
the Sixth Circuit held that, in a narrow set of circumstances, a plaintiff may add a § 1983 claim
through an amended complaint, even if the administrative remedies for the new claim were not
exhausted at the time of the original complaint’s filing. Mattox, 851 F.3d at 595. In Mattox, the
prisoner plaintiff filed suit based on claims for which he had properly exhausted his administrative
remedies. Id. at 590. Later, the plaintiff sought leave to amend his complaint to add new claims
against additional defendants—claims for which he had not exhausted his administrative remedies
at the time he filed his original complaint. Id. The magistrate judge determined the plaintiff’s
newly added complaints were ineffective because the plaintiff did not exhaust his administrative
remedies prior to the filing the original complaint. Id. at 589. On appeal, the Sixth Circuit
overruled the district court, holding that “Rule 15 [of the Federal Rules of Civil Procedure] permits
a prisoner to amend his complaint to add new claims that have only been exhausted after the
commencement of the lawsuit.” (Id. at 592) (emphasis added). In short, the court permitted the
plaintiff’s suit to survive summary judgment because he had exhausted his administrative remedies
for at least some of the claims within the original complaint before he filed his original complaint.
The same cannot be said for Mr. Dahms.
In contrast to the plaintiff in Mattox, Dahms did not exhaust his administrative remedies
for any of the claims in his original complaint before filing suit, (DN 30-2, p. 20–83). Furthermore,
even if this Court looked to the filing date of Dahms’ amended complaint as the benchmark for
the PLRA’s exhaustion requirement, his suit was still premature because Dahms did not exhaust
Grievance 17-1154 until June 14, 2018—28 days after filing his amended complaint. Finally, the
Sixth Circuit’s holding in Mattox does not apply to Mr. Dahms’ case because this Court only
permitted the filing of an amended complaint so that Plaintiff could clarify his existing claims, not
so that Plaintiff could add new claims. In Mattox, the court permitted the plaintiff to file an
amended complaint “to add claims against additional defendants.” In the instant case, this Court
permitted Dahms to file an amended complaint because it was “unable to determine what actions
Plaintiff alleges each Defendant took or failed to take or what type of claim he seeks to bring
against each Defendant.” In its order, the Court explicitly stated that the “amended complaint
[would] supersede (i.e., replace) the original complaint.” (DN 6, p. 2) (emphasis in original). In
other words, this Court granted Dahms leave to clarify his original claims, not to provide additional
time for Dahms to exhaust administrative remedies—something he should have done before filing
suit on January 30, 2018. Accordingly, the effective filing date of the amended complaint relates
back to the original filing date—January 30, 2018. Because Plaintiff failed to exhaust his
administrative remedies before filing his original complaint, his motion for summary judgment
will be denied.
4. Plaintiff’s hypothetical due date test
Defendant requests that this Court create a new exception to the administrative exhaustion
requirement of the PLRA. Dahms expressly concedes in his Response to Defendants’ motion for
summary judgment that he did not exhaust his administrative remedies prior to filing suit. (DN
43, p. 2) (“The fact is that if Kentucky State Reformatory would have done their job appropriately
then the plaintiff’s grievances would have been heard on time and administrative remedies would
have been properly exhausted.”) (emphasis added). Despite acknowledging that he filed his
original complaint before grievances relevant to his § 1983 claim had been exhausted, Dahms asks
the Court to “honor those supposed dates to which the grievance should have been heard.” (DN
43, p. 4). In his response to Defendants’ motion for summary judgment, Plaintiff claims to have
“provided the dates to which the grievance committee should review” his grievances. (DN 43, p.
4). Plaintiff concludes that “since the Grievance Committee was late and seen and heard the
grievances in a untimely manner is why the plaintiff should be awarded summary judgment.” Id.
However, even applying Dahms’ proposed standard—evaluating the PLRA’s exhaustion
requirement according to when grievances “should have been heard”—his complaint was still
Kentucky's Corrections Policies and Procedures 14.6 (CPP 14.6) outlines the standard
procedure for the healthcare grievance process within the state prison system. First, a prisoner
must file a healthcare grievance about a specific incident or specific health care decision. (Id. at
II.K.1.a). After receiving the grievance, the CPP states that the responding medical authority shall
issue an “informal response” within 15 business days. (Id. at II.K.1.b). Second, if the prisoner
appeals the medical authority’s informal response, a Health Care Grievance Committee shall meet
and respond within 15 business days.
(Id. at II.K.2.d).
Third, if the inmate appeals the
Committee’s decision, “The Medical Director shall issue a decision within fifteen (15) business
days of receiving the information….” (Id. at II.K.2.f).
Even if the court were to accept Defendant’s argument (that the Court should allow
premature filing of a complaint if prison staff do not respond by a hypothetical “due date”),
Plaintiff did not allow adequate time for exhaustion of his administrative remedies prior to filing
suit. For example, Plaintiff claims the “final decision” for Grievance 17-1383, filed on December
5, 2017, was “due” on January 16, 2018. (DN 43, p. 1). However, Dahms’ calculation is incorrect
because he only allots time for two 15-business-day review periods (not the three required per
Corrections Policies and Procedures). Additionally, Mr. Dahm’s hypothetical due date fails to
take into account the exclusion of holidays. (CPP 14.6 at I) (“‘Business days’ means 8:00 a.m. to
4:30 p.m., Monday through Friday, excluding holidays.”).
According to Plaintiff’s own
hypothetical due date test, he should not have expected final exhaustion of Grievance 17-1383
until February 9, 2018—more than a week after Mr. Dahms filed his original complaint. Similarly,
this Court calculates that Dahms should not have expected a final exhaustion of Grievance 171415 until February 15, 2018; Grievance 18-0048 until February 28, 2018; and Grievance 18-0152
until March 28, 2018. In summary, this Court declines to create a new exception to the PLRA’s
exhaustion requirement, but even if it did adopt Mr. Dahms’ proposed test, we find that Plaintiff
failed to exhaust his administrative remedies prior to filing suit.
5. Plaintiff’s motion to reopen discovery
Plaintiff motions to reopen discovery (styled by Plaintiff as “motion for extension of
time”) so that he can prove the Grievance Coordinator’s office was in a state of moratorium at
the time he filed grievances. Plaintiff’s motion will be denied because the information he seeks
is both irrelevant and moot.
Mr. Dahms moves this court to reopen discovery so that he can “get a interrogatory from
the grievance director at Kentucky State Reformatory explaining that KSR was in a state of
moratorium, where they had … no set amount [of time] to answer the grievances.” (DN 42, p.
1). Parties may obtain discovery on any matter that is relevant or potentially relevant to the
claim or defense of any party. Fed. R. Civ. P. 26(b)(1). Relevance is “construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.” Oppenheimer Fund v. Sanders, 437 U.S. 340, 351
(1978). “[I]t is well established that the scope of discovery is within the sound discretion of the
trial court.” Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.1981). As explained
in Part III.A.4, supra, Plaintiff failed to exhaust his administrative remedies, or even allow
adequate time for the exhaustion of remedies, regardless of the existence of any moratorium.
Because the information he seeks has no bearing on this case, the information he seeks to obtain
through discovery is irrelevant.
Furthermore, even if a moratorium were relevant, Plaintiff’s motion to reopen discovery is
moot. The sole purpose of Plaintiff’s motion is to support his claim that prison officials thwarted
his ability to exhaust his remedies, thus allowing this Court to reach the merits of his case. (DN
47, p. 3) (“The plaintiff asks the court to graciously honor his exhaustion of administrative
remedies and proceed to awarding him summary judgment.”). Because the Court will address the
merits of the case, Plaintiff’s motion to reopen discovery is moot. While the Court is within its
authority to dismiss this case or grant summary judgment based on Plaintiff’s failure to exhaust
his administrative remedies, doing so would be an inefficient use of the Court’s resources and
would not be in the interest of justice. Dismissing this suit now, three months after the last of Mr.
Dahms administrative appeals was resolved, would be an empty gesture because the Court would
simply permit Mr. Dahms to re-file his case. Recognizing that “the law requires no one to do a
vain or useless thing,” we will now address the merits of Mr. Dahms’ complaint, and his motion
to reopen discovery will be denied. Fine v. CSX Transportation, Inc., 229 F.3d 1151 (6th Cir.
2000) (citing Cohen v. Public Hous. Admin., 257 F.2d 73, 76 (5th Cir.1958)).
B. The merits of Plaintiff’s § 1983 claim
1. Legal Standard
A party moving for summary judgment must demonstrate “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.” Id. In undertaking this analysis, the Court must view
the evidence in a light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378
The party moving for summary judgment bears the burden of establishing the nonexistence
of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). They can meet
this burden by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the ... presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). This burden
can also be met by demonstrating that the nonmoving party “fail[ed] to make a showing sufficient
to establish the existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. Summary judgment is proper
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
To sustain his cause of action under § 1983 for a failure to provide medical treatment,
Dahms must demonstrate that Amos and Ramey “acted with ‘deliberate indifference to serious
medical needs.’” Watkins v. City of Battle Creek, 273 F.3d 682, 685–86 (6th Cir. 2001) (quoting
Estelle v. Gamble, 429 U.S. 97,104 (1976)). Courts employ a two-prong test to assess such claims.
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
First, the Court must “determine whether the plaintiff had a sufficiently serious medical
need under the objective prong.” Burgess v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013) (citing
Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). “A medical need is sufficiently serious if it
has been diagnosed by a physician that has mandated treatment or it is so obvious that even a lay
person would easily recognize the need for medical treatment.”
Id. (citing Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004)).
Second, the Court must determine “whether the defendant had a sufficiently culpable state
of mind in denying medical care under the subjective prong.” Id. (citations omitted). “To satisfy
the subjective component, the plaintiff must allege facts which, if true, would show that the official
being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he
did in fact draw the inference, and that he then disregarded that risk.” Comstock v. McCrary, 273
F.3d 693, 702 (6th Cir. 2001) (citations omitted). “The requirement that the doctor has subjectively
perceived a risk of harm and then disregarded it is meant to prevent the constitutionalization of
medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more than
negligence or the misdiagnosis of an ailment.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 106, 97
S. Ct. 285, 292 (1976)). “There must be a showing of more than mere negligence, but something
less than specific intent to harm or knowledge that harm will result is required.” Id. (citing Farmer
v. Brennan, 511 U.S. 825, 837 (1994)). “Where the plaintiff has received some medical treatment,
federal courts are generally reluctant to second guess medical judgments and to constitutionalize
claims which sound in state tort law.” Id. (citing Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976)).
The medical record demonstrates, and Defendants do not dispute, that Mr. Dahms had a
“serious medical need.” (See generally DN 30) (documenting Dahms’ medical appointments
following surgery). With no genuine dispute over the objective prong of Plaintiff’s Eighth
Amendment claim, the remaining question before the Court is whether Defendants Amos and
Ramey demonstrated a deliberate indifference to Plaintiff’s serious medical need. The Court finds
that the facts alleged by Plaintiff fail to demonstrate such a deliberate indifference.
Plaintiff states that “the medical records clearly show that discharge conditions clearly
state, Plaintiff is supposed to be prescribed those exact medications. The pre-operation medication
prescribed could not be sufficient for post-operation thus making the defendants have engaged in
conduct that was deliberately indifferent to plaintiff’s serious medical need….” (DN 27, p. 2).
Although Defendants did not provide Mr. Dahms with the exact medications that Dr. Castellanos
had prescribed, Plaintiff provides no support for his assertion that “the pre-operation medication
prescribed could not be sufficient for post-operation.” Furthermore, Plaintiff fails to explain how
the substitution of one medication for another demonstrates “deliberate indifference” to his serious
medical needs. Plaintiff alleges a disagreement with the prison staff’s treatment plan, not a
deliberate indifference to his pain; such a disagreement does not rise to an Eighth Amendment
claim. See Hix v. Tennessee Dept. of Corrections, 196 Fed.Appx. 350 (6th Cir. 2006) (“At most,
[plaintiff's] factual allegations might support a claim for medical malpractice, which does not take
on constitutional proportions simply because [plaintiff] is incarcerated. In reality, his factual
allegations established nothing more than a mere difference of opinion with the doctors' diagnoses
and prescribed treatment.”); Kirkham v. Wilkinson, 101 Fed.Appx. 628 (6th Cir. 2004) (citations
omitted) (“[A] difference in opinion between a prisoner and the medical staff about treatment does
not state a cause of action. This court is reluctant to second-guess medical judgments where a
prisoner has received some medical attention and the dispute concerns the adequacy of that
treatment.); Plunkett v. United States, 67 F.3d 300 (6th Cir. 1995) (citing Westlake v. Lucas, 537
F.2d 857, 860 n. 5 (6th Cir.1976)) (“A difference of opinion between a prisoner and a doctor over
diagnosis or treatment does not state an Eighth Amendment claim of deliberate indifference to a
serious medical need.”). To the extent Dahms argues his pain medication is inadequate, the
inadequacy of pain medication is insufficient to establish deliberate indifference. See Thomas v.
Coble, 55 F.App'x 748, 749 (6th Cir. 2003); Rochell v. CMS, No. 4:05CV268, 2006 U.S. Dist.
LEXIS 37943, at 10 (N.D. Miss. April 10, 2006) ("The constitution does not . . . guarantee painfree medical treatment . . . While the plaintiff might have preferred stronger medication, his mere
disagreement with his medical treatment does not state a constitutional claim.").
Contrary to Plaintiff’s claims, the record demonstrates that Defendants made significant
efforts to address Mr. Dahms’ medical needs. After his back surgery, prison officials transferred
Mr. Dahms to KSR so that he could complete the physical therapy recommended by his surgeon.
(DN 32, p. 24–28). Licensed medical professionals, including the medical director from the
Department of Corrections medical director’s office, responded to every one of Mr. Dahms’
complaints and appeals. (DN 30-2, p. 20–83). The fact that Defendants provided adequate medical
attention is supported by documentation from non-defendant medical professionals who evaluated
Mr. Dahms after his surgery, noted the pain medications he was receiving, and did not recommend
changes to his prescriptions. For example, on October 9, 2017, at Plaintiff’s first post-operative
follow-up visit at UKMC, Paula Coffman, APRN, confirmed that Plaintiff was receiving the
prescription medications tramadol and gabapentin for pain. (DN 32, p. 39). Nurse Coffman also
noted she was “pleased with [Plaintiff’s] progress postoperatively” and “encouraged [Dahms] that
his symptoms should improve with time.” (Id. at 40). On November 30, 2017, in response to Mr.
Dahms’ Grievance 17-1154, Dr. Kemen (the then-Assistant Regional Medical Director) concurred
that tramadol and gabapentin were appropriate post-surgery treatment, and that Dahms’ “pain was
adequately controlled” at the time of his follow-up visit. (DN 34-1, p. 77). On December 1, 2017,
prison officials referred Dahms to UKMC for a second follow-up visit—this time with Dr. Raul
Castellanos. (Id. at 34–36). Dr. Castellanos is the same surgeon who performed Mr. Dahms
operation and prescribed him post-operation medications, the denial of which serve as the basis of
Mr. Dahms’ complaint.
Doctor Castellanos confirmed Plaintiff was receiving the
prescription medications tramadol and gabapentin for pain. (Id. at 34). Doctor Castellanos noted
that Dahms was “making progress slowly,” said that he was “overall doing better than what it was
preoperatively,” and did not recommend changing the prescriptions that were then being provided
by Amos and Ramey. (Id. at 35).
In sum, Plaintiff’s medical records document that Defendants provided continuous medical
treatment before and after his back surgery, which included the provision of prescription pain
medications (albeit not those prescribed by Dr. Castellanos).
Plaintiff therefore fails to
demonstrate the deliberate indifference required to constitute an Eighth Amendment violation.
Accordingly, Plaintiff’s request for summary judgment on those claims will be denied. See Daniel
v. Harper, No. 5:17-CV-19-TBR, 2017 WL 6522090, at *8 (W.D. Ky. Dec. 19, 2017) (granting
summary judgment to defendants because plaintiff’s “principle problem” with defendants was the
“precise manner in which they provided medical care to him with respect to his back troubles
because the medication being provided to him . . . was not adequate in Plaintiff’s view”); Jones v.
Pancake, No. 3:06CVP188-H, 2009 WL 481899, at *4 (W.D. Ky. Feb. 25, 2009) (“While Plaintiff
might have desired the pain medication to be continued for a longer period or might have deemed
more extensive tests necessary, this is not a case where all treatment was withheld from Plaintiff.
Although not as extensive as he would have liked, Plaintiff did receive treatment . . . [and] has not
established a deliberate indifference claim against Dr. Hiland.”).
V. State law claims
We now turn to Mr. Dahms’ state law claims—intentional infliction of emotional distress
and negligence. Defendants have moved for summary judgment on Plaintiff’s state law claims,
asserting that Plaintiff did not exhaust his administrative prior to filing suit. Kentucky Revised
Statute § 454.415 requires exhaustion of administrative remedies prior to seeking judicial review
of a “conditions-of-confinement issue.” Dahms challenges a condition of his confinement—his
denial of access to medications prescribed by a non-prison physician. Dahms did not exhaust his
administrative remedies prior to filing his original (or amended) complaint. See Part III.A supra.
Because Dahms challenges a condition of his confinement, it was necessary that he first exhaust
his administrative remedies before filing a judicial action.
While the PLRA’s exhaustion
requirement may be excused if prison officials effectively made the grievance process unavailable
to prisoners, “there is no similar language in KRS § 454.415. Instead, it requires exhaustion of
‘administrative remedies as set forth in the policies and procedures of the Department of
Corrections[.]’” Morgan v. Kentucky, No. 3:17-CV-00474-JHM, 2018 WL 715468, at *5 (W.D.
Ky. Feb. 5, 2018). As there is no exemption from KRS’ administrative exhaustion requirement,
the Court finds that Mr. Dahms filed his complaint prematurely.
Despite Mr. Dahms’ premature filing, the Court finds that dismissal would not be in the
interest of justice or an efficient use of judicial resources. For the same reasons explained in Part
III.A.5, supra, we will now address the merits of Plaintiff’s state law claims.
A. Intentional infliction of Emotional distress
Defendants are entitled to summary judgment on Plaintiff's claim of intentional infliction
of emotional distress (“IIED”). In Kentucky, IIED is a “gap-filler” tort. Rigazio v. Archdiocese of
Louisville, 853 S.W.2d 295, 298–99 (Ky. Ct. App. 1993). This means that IIED is not ordinarily
a valid cause of action if the alleged conduct also gives rise to a claim for another tort through
which emotional distress damages are available. Id. Thus, the general rule is that “an IIED claim
cannot be pled by itself, in tandem with another tort, or in the alternative as long as some other tort
with adequate relief fits the facts.” Johnson v. Kentucky-Cty. of Butler, No. 1:12CV-37-JHM,
2014 WL 4129497, at *11 (W.D. Ky. Aug. 18, 2014) (Citing Martin v. Crall, 2007 WL 2083682,
at *4–5 (W. D. Ky. July 18, 2007) (dismissing IIED claim on summary judgment where plaintiff
had alleged a § 1983 claim for deliberate indifference to a serious medical need, which allowed
damages for emotional distress)). Parties may overcome this general rule only in circumstances
where the alleged “actions or contact is intended only to cause extreme emotional distress in the
victim.” Brewer v. Hillard, 15 S.W.3d 1, *7 (Ky. Ct. App. 2000).
Here, Defendants are entitled to summary judgment on Defendant’s IIED claim because
the Constitutional tort of deliberate indifference and the state tort of negligence provide an alternate
means for the recovery of emotional damages. Furthermore, Defendants are entitled to summary
judgment on Plaintiff’s IIED claim because Dahms has presented no evidence that Defendants’
denied Plaintiff access to the medications prescribed by Dr. Castellanos “only” to cause Plaintiff
extreme emotional distress. See Rigazio, 853 S.W.2d at 299 (affirming dismissal of IIED claim
because there was “no evidence from which it could be inferred that the [defendant] intended only
to invade [the plaintiff’s] interest in freedom from emotional distress”).
Moreover, even if Dahms’ IIED claim could stand alone, Plaintiff fails to plead facts
necessary to survive summary judgment. To prevail on a claim of IIED, a claimant must prove
the following elements: (1) the wrongdoer's conduct must be intentional or reckless; (2) the
conduct must be outrageous and intolerable in that it offends against the generally accepted
standards of decency and morality; (3) there must be a causal connection between the wrongdoer's
conduct and the emotional distress; and (4) the emotional distress must be severe. Kroger Co. v.
Willgruber, 920 S.W.2d 61, 65, 43 4 Ky. L. Summary 26 (Ky. 1996) (citing Craft v. Rice, 671
S.W.2d 247, 249 (Ky. 1984)). At a minimum, Dahms’ claim fails because he has not produced
evidence sufficient to prove Defendants conduct was “outrageous.” See Rigazio, 853 S.W.2d at
299 (affirming dismissal of IIED claim because the plaintiff presented “no evidence whatsoever
to raise an inference that the [defendants] engaged in any extreme and outrageous conduct
intentionally or recklessly inflicting emotional distress on any of the appellants”).
Drawing all unresolved issues of state law in favor of the Plaintiff, the Court cannot find
that there is even a reasonable basis for believing that Defendants’ conduct could be “outrageous”
enough for Defendants to be found liable under Kentucky law. In Humana of Ky., Inc. v. Seitz,
the Kentucky Supreme Court addressed whether the conduct of hospital staff was sufficiently
outrageous to rise to the level of IIED tort. Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1 (Ky. 1990).
In that case, a patient who had unexpectedly delivered a stillborn baby was told to “shut up”
because she was disturbing other patients. Id. at 3. Nurses later told the mother that they would
“dispose” of the baby “right [there] at the hospital.” Id. The Kentucky Supreme Court found that
although “a little more patience and TLC would have been desirable,” the conduct fell short of
state’s standard for intentional infliction of emotional distress. Id. Similarly, while Mr. Dahms
may have preferred that Defendants acted more tactfully or compassionately in their care (for
example, in Grievance 18-0152, Plaintiff expressed anger that at Dr. Amos’ statement that Dahms’
nerve pain would have to “work itself out”), their actions fall short of the state’s standard for
“outrageous” conduct. Accordingly, the Court will grant summary judgment in Defendant’s favor
on Plaintiff's IIED claim.
Defendants are entitled to summary judgment on Plaintiff's negligence because Dahms
presented no expert medical testimony. "It is an 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." Baylis v. Lourdes Hosp., Inc.., 805 S.W.2d 122, 124
As pled by Plaintiff, this is a medical negligence case that requires expert testimony.
Plaintiff alleges that “The pre-operation medication prescribed could not be sufficient for postoperation,” and that Defendants “violate[d] the applicable duty of care” when they “improperly
withheld medical care” and “ignor[ed] medication prescribed by surgeons.” (DN 27, p. 2).
Therefore, negligence boils down to whether the alternate treatment provided by Defendants was
a breach of the standard of care. Jurors are ill equipped to determine whether the prescription of
tramadol and duloxetine (as opposed to oxycodone and gabapentin) to treat a transforaminal
lumbar interbody fusion violates the standard of care for doctors and nurses. Because Plaintiff has
not provided an expert to aid the jury in answering those questions, his negligence claim cannot
survive summary judgment.
Defendants’ are also entitled to summary judgment because Plaintiff fails to provide
evidence for his assertion that Defendants had a duty to provide the medications prescribed by Dr.
Castellanos. In Kentucky, the plaintiff must present evidence of the recognized elements of a
common law negligence claim: (1) the defendant owed a duty of care to the plaintiff, (2) breach of
that duty, (3) injury to the plaintiff, and (4) legal causation between the defendant's breach and the
plaintiff's injury.” Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012). In his complaint, and
throughout his grievances, Plaintiff baldly asserts that Defendants were obliged to provide the
medication prescribed by surgeon Dr. Castellanos. However, Plaintiff cites no case law, and this
Court finds none, that recognizes the duty of prison medical staff to provide exact medications
prescribed by non-prison physicians. “As in all negligence actions, the burden is on the plaintiff”
to prove Defendant had a duty to the plaintiff that was violated. Dean v. Bondurant, No. 2004CA-001345-MR, 2005 WL 2467768, at *5 (Ky. Ct. App. Oct. 7, 2005). As Plaintiff has failed to
establish that Defendants had a duty to provide the medications prescribed by Dr. Castellanos,
Defendants are entitled to summary judgment.
For the reasons stated herein, a separate order will be entered this date in accordance with
IT IS SO ORDERED.
October 4, 2019
C al R Smpo I , ei J d e
h r s . i sn I Sno u g
U i dSae Ds i C ut
nt tt ir t o r
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