Chambers v. Hardy

• Decision Date: 20 February 2019
• Docket Number: Civil Action No. 6: 17-256-KKC
• Parties: ROSCOE CHAMBERS, Plaintiff, v. DR. HARDY, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

ROSCOE CHAMBERS, Plaintiff, v. DR. HARDY, Defendant.

Civil Action No. 6: 17-256-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION at LONDON

February 20, 2019

MEMORANDUM OPINION AND ORDER*** *** *** ***

Plaintiff Roscoe Chambers is an inmate confined at the United States Penitentiary ("USP")- Lewisburg in Lewisburg, Pennsylvania. Proceeding without an attorney, Chambers has filed a civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). After Chambers' complaint was screened by the Court pursuant to 28 U.S.C. § 1915(e)(2), 1915A, the sole remaining claim pending in this case is a claim that Defendant Dr. William Hardy acted with deliberate indifference to Chambers' medical needs in violation of his constitutional rights while Chambers was confined at United States Penitentiary-McCreary ("USP-McCreary") in Pine Knot, Kentucky. [R. 1, 14]

Dr. Hardy, through counsel, has filed a motion to dismiss or, in the alternative, motion for summary judgment, [R. 22] to which Chambers has filed a response. [R. 28] Dr. Hardy has not filed a reply and the time for doing so has expired. Thus, this matter has been fully briefed and is ripe for review.

I.

While the factual details provided in Chambers' complaint are sparse, he alleges that, while he was incarcerated at USP-McCreary, Dr. Hardy, identified as USP-McCreary's physician, operated on Chambers' foot without his permission and neglected to send Chambers for knee replacement. [R. 1 at p. 3]. Based on these allegations, Chambers asserts a claim that Dr. Hardy acted with deliberate indifference to his medical needs in violation of the Eighth Amendment of the United States Constitution.

In his motion, Dr. Hardy argues that Chambers' complaint should be dismissed because: (1) Chambers has failed to exhaust his administrative remedies; (2) his complaint is untimely; (3) Chambers' complaint fails to allege a claim of constitutional dimension; and (4) Dr. Hardy is shielded from liability by qualified immunity. [R. 22-1]

II.

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the plaintiff's complaint. Gardner v. Quicken Loans, Inc., 567 F. App'x 362, 364 (6th Cir. 2014). When addressing a motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and accepts as true all 'well-pleaded facts' in the complaint. D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because Chambers is proceeding without the benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).

Here, Dr. Hardy moves both to dismiss and for summary judgment, attaching and relying upon declarations extrinsic to the pleadings in support of his motion. [R. 22] Thus, the Court will treat Dr. Hardy's motion to dismiss the complaint as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F. 3d 1102, 1104 (6th Cir. 2010). See also Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (where defendant moves both to dismiss and for summary judgment, plaintiff is on notice that summary judgment is being requested, and the court's consideration as such is appropriate where the nonmovant submits documents and affidavits in opposition to summary judgment).

A motion under Rule 56 challenges the viability of another party's claim by asserting that at least one essential element of that claim is not supported by legally-sufficient evidence. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). A party moving for summary judgment must establish that, even viewing the record in the light most favorable to the nonmovant, there is no genuine dispute as to any material fact and that the party is entitled to a judgment as a matter of law. Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). The burden then shifts to the nonmoving party to "come forward with some probative evidence to support its claim." Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994). However, if the responding party's allegations are so clearly contradicted by the record that no reasonable jury could adopt them, the court need not accept them when determining whether summary judgment is warranted. Scott v. Harris, 550 U.S. 372, 380 (2007). The Court must grant summary judgment if the evidence would not support a jury verdict for the responding party with respect to at least one essential element of his claim. Ford v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

A.

Chambers' complaint alleges that Dr. Hardy was deliberately indifferent to his serious medical needs in two respects: (1) he operated on Chambers' foot without his permission; and (2) he neglected to send Chambers for knee replacement. [R. 1 at p. 3]. However, with respect to his claim regarding the allegedly improper operation on his foot, Chambers did not properly and timely exhaust his administrative remedies as required by federal law. Under the Prison Litigation Reform Act of 1995 ("PLRA"), a prisoner wishing to challenge the circumstances or conditions of his confinement must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.");Fazzini v. Northeast Ohio Correctional Center, 473 F.3d 229, 231 (6th Cir. 2006); Campbell v. Barron, 87 F. App'x 577, 577 (6th Cir. 2004). Administrative remedies must be exhausted prior to filing suit and in full conformity with the agency's claims processing rules. Woodford v. Ngo, 548 U.S. 81, 92-94 (2006).

The federal Bureau of Prisons ("BOP") employs a multi-tiered administrative grievance process. The BOP's Inmate Grievance System requires a federal prisoner to first seek informal resolution of any issue with staff. 28 C.F.R. § 542.13. If a matter cannot be resolved informally, the prisoner must file an Administrative Remedy Request Form (BP-9 Form) with the Warden, who has 20 days to respond. See 28 C.F.R. §§ 542.14(a) and 542.18. If the prisoner is not satisfied with the Warden's response, he may use a BP-10 Form to appeal to the applicable Regional Director, who has 30 days to respond. See 28 C.F.R. §§ 542.15 and 542.18. If the prisoner is not satisfied with the Regional Director's response, he may use a BP-11 Form to appeal to the General Counsel, who has 40 days to respond. See 28 C.F.R. §§ 542.15 and 542.18. See also BOP Program Statement 1300.16. Because "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules...," Woodford, 548 U.S. at 90, the prisoner must file the initial grievance and any appeals within these time frames.

Here, even according to Chambers, the only administrative remedy requests relevant to this lawsuit that he completely exhausted are Administrative Remedy Nos. 849291 and 854754. [R. 28, Resp. at p. 3; R. 22-2, Exh. 1: Decl. of Carlos Martinez, Attachments D and E, at p. 84-97]. However, both of these administrative remedy requests relate to the allegedly inadequate medical treatment provided for Chambers' knees. Neither of these administrative remedy requests even mention treatment of Chambers' foot. [Id.]

Rather, Chambers' allegations that Dr. Hardy inappropriately operated on his foot (including his allegation that he "cut a bone off the bottom of my feet and left the top part insidemy feet") are raised only in Administrative Remedy No. 857566. [R. 22-2, Decl. of Carlos Martinez, Attachment F, at p. 98-102] Chambers filed an administrative remedy request complaining of the procedure on his foot on a BP-9 Form (which was later assigned as Administrative Remedy No. 857566) on March 31, 2016. [Id. at p. 98]. The Warden responded to the request, explaining that a review of Chambers' medical records showed that, after obtaining verbal informed consent for incision and drainage of Chambers' right foot, Dr. Hardy "excised a dead cornified piece of skin from your foot, not bone. This is secondary to a plantars wart." [Id. at p. 99] The Warden further informed Chambers that, if he was dissatisfied with his response, he may appeal to the Regional Director. [Id.]

Chambers filed a BP-10 appeal with the Mid-Atlantic Regional Office on April 26, 2016. [Id. at 100] The Regional Director issued a response denying the appeal dated April 29, 2016. [Id. at 101-102] Although this response also advised Chambers how to appeal at the Central Office level [id.], Chambers did not pursue Administrative Remedy No. 857566 any further. [R. 22-2, Decl. of Carlos Martinez, Attachment F, at p. 98-102] Thus, Chambers failed to fully exhaust his administrative remedies with respect to his Eighth Amendment claim related to Dr. Hardy's treatment of his foot.

In his response, with respect to the exhaustion of his available administrative remedies, Chambers offers only his statement that he "attempted to exhaust" Remedy No. 857566 [R. 28 at p. 3, ¶4], later claiming that "he filed a BP-11 and never heard any response to it." [Id. at p. 4, ¶7] However, Chambers provides no factual or evidentiary support for this claim, only his own unsupported and self-serving allegations made in his response. In order to defeat a properly supported motion for summary judgment, the party opposing the motion may not "rest upon mere allegation or denials of his pleading," but must present affirmative evidence supporting his claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). "[C]onclusoryallegations, speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported motion for summary judgment. Jones v. City of Franklin, 677 F. App'x 279, 282 (6th Cir. 2017) (citing Lujan v. National...