May v. Akers
| Decision Date | 22 March 2023 |
| Docket Number | 5:21-CV-182-DCR-HAI |
| Parties | JAMES R. MAY, Plaintiff, v. DANIEL AKERS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
RECOMMENDED DISPOSITION
Pro se Plaintiff James May is a prisoner at the Little Sandy Correctional Complex in Sandy Hook, Kentucky, but was formerly confined at the Lee Adjustment Center (“LAC”) in Beattyville, Kentucky. On June 29 2021, the Clerk docketed a complaint by May against several staff members at LAC in their individual and official capacities. D.E. 1. On October 15, 2021, Chief Judge Reeves granted May's motion for leave to file an amended complaint. D.E. 43. On December 14, 2021, Chief Judge Reeves granted May's second motion to amend his complaint and granted the motion to dismiss claims against Defendant Brian Kendrick. D.E. 55. As a result, May's Second Amended Complaint (D.E. 56) became the operative pleading in this matter and Kendrick was dismissed as a defendant in this action. Id.
May brings a number of claims pursuant to 42 U.S.C. § 1983 as well as state law claims, all stemming from an incident that occurred on June 26, 2020, at the LAC when a chair May was sitting in allegedly collapsed and caused him to sustain injuries. May's claims at issue at this time are:
May was deposed on June 1 and 14, 2022, and the transcript is filed at Docket Entry 100. On November 14, 2022, Defendants Akers, Briggs, Wilson, Clifton, Williams and Justice filed a motion for summary judgment (D.E. 98). May responded (D.E. 104), and Defendants replied (D.E. 105). The briefing includes multiple attachments, such as affidavits and medical records. Defendants' motion for summary judgment stands ripe for review.
On June 26, 2020, May was confined at the LAC. D.E. 100-1 at 8. Around 6:15 a.m., while using a kiosk in the canteen, the leg of the chair May was sitting in collapsed. Id. at 22. May landed on and injured his shoulder. Id. Shane Carroll and Lavon Stivers, also inmates at the LAC, were in the room with May when the chair collapsed. Id. at 61-62. May requested to go to medical, but Defendant Justice instructed him to go to sick call when it began later that morning. Id. at 23. May, Carroll, and Stivers placed the collapsed chair in the office of Brian Kendrick, a program coordinator. Id. at 23-25.
May attended sick call when it began at about 7:00 a.m. D.E. 100-1 at 226, 100-3 at 54. May was first seen by Nurses Chaney and Freeman. D.E. 100-1 at 227-28, D.E. 100-3 at 54. They referred May to co-defendant Nurse Puckett for immediate evaluation. D.E. 100-1 at 229, D.E. 100-3 at 54. May was given an ice pack and sling for his shoulder. D.E. 100-1 at 238-39, D.E. 100-3 at 52, 54. May had taken 975 milligrams of Tylenol and 400 milligrams of ibuprofen prior to attending sick call. D.E. 100-3 at 52, 100-1 at 241-43. Puckett prescribed May a 30-day supply of ibuprofen and 3-day supply of Tramadol and administered at least one pain injection. D.E. 100-3 at 52. Puckett referred May for an x-ray as soon as possible and advised him to use ice packs and wear his sling at all times. D.E. 100-1 at 253, D.E. 100-3 at 52.
On the evening of June 26, Defendant Williams spoke with May and wrote a report summarizing the incident. D.E. 100-1 at 30-31.
May was seen again on July 1, 2020, by Puckett and an x-ray technician. D.E. 100-3 at 56. May reported “horrible” pain and difficulty dressing. Id. The x-ray technician “could not finish the study related to a fracture and the patient's inability to raise his arm.” Id. This fracture was of the “humeral head with displacement.” Id. May was not wearing his sling during the appointment. Id. The treatment notes from that visit indicate:
Fracture seen on imaging per provider. Will consult Dr[.] Clifford for referral to orthopedics. Continue all other plan of care and medication at this time. Sling is to be worn at all times. Knock off for meal delivery given to patient. Refused to stay in medical at this time. Will follow up after consult. Consulted Dr[.] Clifford ok to send out for ortho referral and to exp[e]dite the consultation.
Id. The “knock off for meal delivery” allowed May's meal to be brought to his bed area. D.E. 100-1 at 265. On July 2, May refused to stay in the medical area for observation and assistance with activities of daily living. D.E. 100-3 at 58. The refusal form states, D.E. 101-15.
On July 6, 2020, May was seen by Puckett regarding left shoulder pain. D.E. 96 at 9. May was not wearing his sling and Puckett advised him to wear it. Id. May again refused to stay in the medical department. Id.
May was then seen on July 7 by Dr. Primm at UK HealthCare. D.E. 100-3 at 61. At that time, Dr. Primm noted he anticipated “nonoperative management,” provided May with a cuff-and-collar sling, and scheduled a follow-up appointment three weeks later. Id. at 62.
On July 7, May returned to the medical department requesting that his meals be delivered and for a uniform pass to wear sweatpants. D.E. 96 at 13. Nurse Craft consulted Puckett, who granted the meal delivery request, but denied the uniform pass. Id. May was scheduled for a follow-up appointment with Puckett a week later. Id.
Puckett ordered ibuprofen and meloxicam for May on July 14. D.E. 96 at 14-15. On July 16, Puckett granted May's request to extend his meal deliveries and recommended continuation of his current care and medications. Id. at 16. Puckett noted May was not wearing his sling, and he reported that “the doctor told him not to wear it at all times because he did not want his muscles to freeze.” Id.
May was seen again by Dr. Primm on August 4, 2020. D.E. 100-3 at 63. May reported improved, yet continued, pain his left shoulder and that he had “continued to perform range-of-motion exercises at the elbow and or shoulder.” Id. May further reported that he had “minimal use of the cuff and collar sling” and that most of his pain occurred at night “when rolling over in bed.” Id. May denied “any numbness or tingling in the upper extremity” or any other complaints at that time. Id. May's left shoulder was x-rayed again, which demonstrated “continued callus formation and healing of the proximal humerus fracture with appropriate bony alignment.” Id. Dr. Primm recommended Tylenol and ibuprofen for pain and continued various exercises for his shoulder and elbow. Id. A follow-up appointment was scheduled for six weeks later. Id.
On August 7, May submitted a request for additional medication and another extension to his meal deliveries. D.E. 96 at 20. May was seen on August 7 by Nurse Chaney, who prescribed ibuprofen and referred him to see Puckett. Id. at 63. On August 13, Puckett reported that May was again not wearing his sling and prescribed additional ibuprofen and extended his meal delivery by four more weeks. Id. at 21.
May was next seen by Dr. Primm on September 29, 2020. D.E. 96 at 23, D.E. 98-10 at 6, D.E. 100-1 at 296, 100-3 at 66. During that visit, May reported that his pain was much better and that he had continued range-of-motion exercises, though his left shoulder was still stiff. D.E. 98-10 at 6. Based on additional x-rays, Dr. Primm reported the fracture appeared healed. Id. Dr. Primm referred May for physical therapy, scheduled a follow-up appointment for six weeks later, and noted no additional x-rays would be needed. Id. Puckett referred May for physical therapy on October 12. D.E. 96 at 64.[1] On November 5, May refused to participate in physical therapy.[2] D.E. 96 at 65.
May was transferred to the Southeast State Correctional Complex in January 2021 and then to the Little Sandy Correctional Complex in April 2022. Id. at 47, 66.
Defendants have moved for summary judgment under Rule 56 and rely upon documents and declarations extrinsic to the pleadings. Fed.R.Civ.P. 12(d). A motion under Rule 56 challenges the viability of the other 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). If the moving party demonstrates that there is no genuine dispute as to any material fact and that he is entitled to a judgment as a matter of law, he is entitled to summary judgment. Kand Med., Inc. v. Freund Med. Prods., Inc., 963 F.2d 125, 127 (6th Cir. 1992).
The moving party does not need his own evidence to support this assertion, but need only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but must point to evidence of record in affidavits, depositions, and discovery which demonstrates that a factual question remains for trial. Hunley v. DuPont Auto, ...
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