Adams v. Tangilag et al

Filing 7

MEMORANDUM OPINION by Judge Greg N. Stivers on 2/22/2018. This case will be dismissed by separate Order.cc: Plaintiff, pro se; Defendants; General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel (MNM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
DEMETRIUS ADAMS
v.

PLAINTIFF
CIVIL ACTION NO. 5:17-CV-P161-GNS

SHASTINE TANGILAG et al.

DEFENDANTS
MEMORANDUM OPINION

Plaintiff, Demetrius Adams, filed a pro se, in forma pauperis complaint pursuant to 42
U.S.C. § 1983. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). For the reasons set forth below, the complaint will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff is a prisoner at the Kentucky State Penitentiary (KSP). His complaint arises out
of alleged lack of treatment and negligent medical treatment of a hernia. He names as
Defendants Correct Care Solutions (CCS), which provides medical care to Kentucky prisoners,
and the following CCS employees in their individual and official capacities: Dr. Shastine
Tangilag, Dr. Louis Forte, Nurse Brenda Beehler, and Nurse Tania Pineiroa. He also names as
Defendants APRN Denise Burkett, Health Service Clinical Director of the Kentucky Department
of Corrections (KDOC); Baptist Health of Paducah; and two employees of Baptist Health -Dr. Carla Pierola and Nurse Robert Timothy. He also sues all unknown defendants with policy
making authority for CCS; all unknown insurers and/or underwriters for Defendants; and all
unknown defendants with policy-making authority for Baptist Health, Paducah. Plaintiff
attaches several documents to his complaint, both health-care grievances and medical records.

Plaintiff alleges that he has complained of abdominal pain for several years since at least
September 18, 2015. A KDOC medical record attached to the complaint states that Plaintiff was
seen by a nurse on that date for “mid epigastrc pain.” The “Assessment” portion of the record
provides: “normal bowel sounds, non tender to all four quadrants of the abdomen.” It also
provides that Plaintiff stated that the pain had been in his “upper mid abdominal area, lower
gastric region . . . since onset early this morning before breakfast” and “PT did have normal BM
after onset of pain this morning.” That medical record shows that Plaintiff was given two
medications, lidocaine and milk of magnesia, and told to contact “medical” if pain persisted or
worsened.
Plaintiff next alleges that on February 8, 2016, he complained about hernia pain1 and was
seen by non-Defendant APRN Karen Ramey. A KDOC medical record from that date states that
Plaintiff presented with right groin pain and “[a]s he normally does, pt. states he reduced the
hernia himself but that it would not remain reduced.” That medical record also states that
Plaintiff was observed to not be wearing his support. The Assessment/Plan for Plaintiff’s “right
inguinal hernia” was: “Pt encouraged to wear support[;] pt educated to avoid any heavy lifting,
straining, pulling, etc.; as long as hernia remains reducible will cont to monitor.”
According to the complaint, on March 7, 2016, Plaintiff again complained about hernia
pain and was again seen by APRN Ramey. The “Symptoms” portion of a KDOC medical record
from that date states: “Pt seen early last month for pain with hernia. He was evaluated at that
time and hernia was reducible. Pt. does not aggravate hernia by heavy lifting or straining and
began wearing his support again. Hernia remains reducible.” The “Action/Plan” for Plaintiff
was as follows: “long discussion with pt re: warning signs of incarcerated hernia. As long as
hernia remains reducible, we will cont to monitor. Encouraged him to keep wearing his support,
1

The documents attached to the complaint state that Plaintiff had a history of right inguinal hernia repair.

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as he reports improvement in pain and discomfort. [H]e denied the need for a second opinion
with Dr. Amos.”
Plaintiff next alleges that nearly seven months later, on October 3, 2016, he felt “a slight
pull that began to expand in his abdomen” creating a “sharp and constant pain.” He states that he
“made it to the legal office” where a corrections officer contacted Registered Nurse Bruce
Bauer,2 who explained over the phone that Plaintiff should push the hernia back in and put a bag
of ice over the area. He alleges that during this time he was “lying on the floor sweating
profusely while screaming in pain and agony.” He states that during this time another
corrections officer arrived on the scene, contacted “medical,” and explained the situation,
whereupon a wheelchair was brought to transport Plaintiff to medical.
Plaintiff states that, once at medical, Defendant Dr. Tangilag observed the area,
confirmed the need for immediate surgery, and made preparations for Plaintiff to be transported
to the hospital. He alleges that during his “long wait” he was given several injections for pain,
but the pain did not subside. A KDOC progress note from Defendant Dr. Tangilag shows that
Plaintiff was brought to medical around 1:00 p.m. and examined, and that it was decided that a
“GS eval” and “CT scan” were needed to rule out “incarceration” hernia. That progress note
also provides “called Baptist ER and spoke with Dr. Mabry. Advised to call surgeon (Dr. Tyrrel)
– left message with his asst. At 3 PM, still no call from the surgeon. Called Dr. Mabry at ER.
Was advised to send inmate to ER and he will contact Dr. Tyrell.”
Plaintiff states that around 3:30 p.m., he was transported to Baptist Hospital in Paducah.
There, he was seen by Defendant Dr. Pierola. He states that at around 10:45 that evening “the
attending physician or staff representative made the conscience decision to turn the Plaintiff

2

In the body of the complaint, Plaintiff refers to Bauer as a Defendant. However, he is not listed as a Defendant in
the caption of the complaint.

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away and send him back” to KSP. He states that Defendant Dr. Pierola instructed him to push
the hernia back in place and apply ice.
The KDOC progress note from October 3, 2016, at 11:45 p.m. states that Plaintiff was
returned to KSP with “no new orders F/U to make an apt. with DR.” That progress note stated
that Plaintiff’s abdomen was “soft and nondistended with bowel sounds x4, hypoactive no
tenderness or guarding noted,” and that Plaintiff reported his pain to be level “1.” That note
further states that Plaintiff was transferred back to his cell with instructions to call for medical
assistance if needed and to take ibuprofen, which Plaintiff had a supply of, as needed.
Plaintiff alleges that on the morning of November 21, 2016, he was stricken with the
same pain, but even more severe than before. A corrections officer contacted medical who
advised Plaintiff to place an ice pack on the area and push the hernia back in. However, upon
seeing the amount of pain Plaintiff was in, the officer called medical again and explained that the
injury was serious. The officer was instructed to tell Plaintiff to report to medical once it
opened. Plaintiff alleges it took him a long time to walk to medical because of his intense pain.
He states that once there Defendant Dr. Forte saw Plaintiff “and decided to shove the hernia back
in,” causing Plaintiff “massive” pain in his abdomen. Plaintiff states that he begged Defendant
Dr. Forte to stop shoving his fingers in the area, eventually pushing his hand away.
Plaintiff alleges that Defendant Dr. Forte “finally ordered that the Plaintiff be taken out
for surgery because the hernia could not be pushed back in his abdomen.” Plaintiff was taken to
the Caldwell Medical Center in Princeton, Kentucky, where a surgeon immediately took him into
surgery. Upon waking from surgery, Plaintiff was told by the surgeon that in addition to the
hernia, surgery revealed that Plaintiff had a strangulated intestine, which the surgeon also
repaired. Plaintiff states that after four days in the hospital, he was returned to KSP where “there

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was no follow ups to check the progression of his surgery or to see if there were any more
complications from surgery.”
Plaintiff alleges that Defendants Tangilag, Forte, and CCS violated his Eighth
Amendment rights and that Defendants Baptist Health of Paducah, Pierola, and Mabry violated
Section 17 of the Kentucky Constitution and committed the tort of medical malpractice. The
complaint contains no allegations against Defendants Beehler, Pineiroa, or Burkett but does ask
for declaratory and injunctive relief “in the form of an ORDER compelling medical treatment as
needed and described by Dr. Carl Hinton.”
II. ANALYSIS
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the action, if the
Court determines that it is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. See 28
U.S.C. § 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court may, therefore,
dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where
the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff
has stated a claim upon which relief can be granted, the Court must construe the complaint in a
light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Eighth Amendment claims
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)); Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d
834, 843 (6th Cir. 2002). To do so, a prisoner must establish both that the deprivation was
sufficiently serious to rise to constitutional levels (an objective component) and that the state
official acted with a sufficiently culpable state of mind (a subjective component). Wilson v.
Seiter, 501 U.S. 294, 298 (1991).
“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.” Westlake v. Lucas, 537
F.2d 857, 860 n.5 (6th Cir. 1976). In other words, a court generally will not find deliberate
indifference when some level of medical care has been offered to the inmate. Christy v.
Robinson, 216 F. Supp. 2d 398, 413-14 (D.N.J. 2002). Thus, a difference in judgment between
an inmate and prison medical personnel regarding the appropriate medical diagnosis or treatment
is not enough to state a deliberate-indifference claim. Ward v. Smith, No. 95-6666, 1996 WL
627724, at *1 (6th Cir. Oct. 29, 1996). Moreover, “[m]edical malpractice does not become a
constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.
The allegations and attachments to the complaint show that when Plaintiff complained of
abdominal pain on one day in September 2015 and hernia pain on one day in February and then
in March 2016, he was seen on those days by a registered nurse or an APRN. He was examined
and treated with medicine to alleviate the abdominal pain in September 2015. With regard to his

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two visits to medical in early spring 2016, Plaintiff again received treatment. The nurse
determined that the hernia was still reducible and so would be continued to be monitored;
explained to him the warning signs of an incarcerated hernia; and encouraged him to wear his
support, which he reported helped his pain.
When, nearly seven months later, on October 3, 2016, Plaintiff felt “a slight pull that
began to expand in his abdomen” creating a “sharp and constant pain,” he was taken by
wheelchair to medical, where he was seen by a doctor, Defendant Dr. Tangilag. Defendant
Dr. Tangilag examined him, confirmed the need for immediate surgery, and made provisions for
him to be sent to the ER. However, he was seen by two doctors, Defendants Pierola and Mabry,
who apparently disagreed that surgery was necessary at that time. Although he was returned
from Baptist Health without having had surgery, when he was returned to KSP later that evening,
the KDOC progress note stated that Plaintiff’s abdomen was “soft and nondistended with bowel
sounds x4, hypoactive no tenderness or guarding noted,” and that Plaintiff reported his pain to be
level “1.”
A month and a half later, on November 21, 2016, when Plaintiff was stricken with more
severe pain, he was seen by a doctor, Defendant Dr. Forte, who attempted to reduce Plaintiff’s
hernia, which did not work and was very painful to Plaintiff. When Defendant Forte’s attempt to
reduce the hernia failed, Defendant Forte ordered Plaintiff to be taken for surgery. Plaintiff was
taken to an outside medical center where he was immediately operated on, during which both his
hernia and a newly discovered strangulated intestine were fixed.
Plaintiff has not shown that Defendants Dr. Tangilag, Dr. Forte, and CCS violated his
Eighth Amendment rights. He received treatment each time he asked for it. Simply because
Defendants initially treated his hernia conservatively rather than with surgery is merely a

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disagreement with the treatment he received rather than a lack of treatment. See Woods v. Ameji,
No. 09-2195, 2011 WL 673990, at *11 (C.D. Ill. Feb. 16, 2011) (“Non-surgical remedies,
designed to alleviate the inmates’ pain from the hernia are not a violation of the Eighth
Amendment.”).
Finally, although Plaintiff alleges that when he was returned to KSP “there was no follow
ups to check the progression of his surgery or to see if there were any more complications from
surgery,” he does not allege which Defendant, if any, purportedly failed to follow up with him
and does not allege any harm from the lack of follow up or even what follow up he believes was
necessary. Plaintiff has failed to state an Eighth Amendment claim with regard to his medical
treatment. Consequently, his request for injunctive relief in the form of compelling his medical
treatment to be as prescribed by an outside doctor also fails.
Supplemental state-law claims
Because Plaintiff’s federal-law claims will be dismissed, the Court declines to exercise its
supplemental jurisdiction over Plaintiff’s state-law claims. See 28 U.S.C. § 1367(c)(3). His
state-law claims will be dismissed without prejudice.
III. CONCLUSION
For the foregoing reasons, this case will be dismissed by separate Order.
Date:

February 22, 2018

Greg N. Stivers, Judge
United States District Court
cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4416.009

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