Portee v. Jones, Civil Action No. 6: 17-04-KKC

• Decision Date: 05 June 2019
• Docket Number: Civil Action No. 6: 17-04-KKC
• Parties: DANIEL C. PORTEE, Plaintiff, v. RHONDA JONES, et al. Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

DANIEL C. PORTEE, Plaintiff, v. RHONDA JONES, et al. Defendants.

Civil Action No. 6: 17-04-KKC

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

June 5, 2019

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

Plaintiff Daniel C. Portee is an inmate currently confined at the United States Penitentiary-Coleman I in Coleman, Florida. Proceeding without an attorney, Portee filed a civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) against prison officials at United States Penitentiary-McCreary ("USP-McCreary") in Pine Knot, Kentucky. [R. 1] Portee's claims against Defendants Lt. Long and Acting Lieutenant Reams were previously dismissed by separate Court Orders. [R. 41, 45] Defendants Rhonda Jones, Christopher Davis, T. Cimarossa, Janice Keith, Elizabeth Barnes, Maria Marreo, and Stephine Sumner (collectively, "Defendants"), by counsel, have filed a motion to dismiss or, in the alternative, motion for summary judgment with respect to Portee's remaining claims. [R. 49] Pursuant to the Court's Order entered March 29, 2019, Portee was required to file a response to Defendants' motion on or before April 15, 2019. [R. 54] However, that time period has now expired, and no response has been filed by Portee. Thus, this matter is ripe for review.

I.

The allegations of Portee's complaint are unclear, somewhat repetitive, and confusingly labeled. However, Portee's complaint generally relates to his medical treatment, including the management of his pain and his use of a four-wheeled walker with a seat, while he was incarcerated at USP-McCreary.

Specifically, Portee asserts the following claims: 1) Defendant Jones acted with deliberate indifference to Portee's serious medical needs in violation of Portee's rights under the Eighth Amendment by failing to provide Portee with a prescribed medical treatment, specifically a four-wheel walker with a seat that was operational and safe to use for its intended purposes [R. 1 at p. 3-9, "Factual Allegations," Count I, ¶¶ 9-50, 175-177]; 2) Defendant Jones' failure to provide Portee with the appropriate full-size four-wheel walker with a seat to accommodate his size and weight violated Portee's rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq, and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794 [R. 1 at p. 9-10, "Factual Allegations," Count II, ¶¶ 51-52]; 3) Defendants Jones, Cimarossa, Keith, Barnes, Davis and Marrero violated Portee's Eighth Amendment rights in multiple ways, including by failing to provide him with pain medication for injuries Portee sustained to his head, left elbow, and lower back when Portee was housed at another Bureau of Prisons ("BOP") facility, failing to provide medication for sleep and memory issues, and failing to provide treatment for his reports of rectal bleeding [R. 1 at p. 10-20, "Factual Allegations," Count III, ¶¶ 54-115]; 4) Defendants Jones, Davis, Cimarossa, Keith, and Marreo violated Portee's Eighth Amendment rights in various ways, including by misleading Portee to believe that he would be seen by a medical provider or physician to address his medical concerns, denying Portee adequate pain medication, denying Portee's sick call requests to see a physician for follow-up medical treatment, refusing to address Portee's medical concerns, denying Portee outside medical testing of an EMG, and denying Portee's use of his four-wheel walker with seat [R. 1 at p. 20-25, "Causes of Action," Count I, ¶¶ 116-147]; 5) On October 5, 2015, Defendant Sumner violated Portee's Eighth Amendment rights by issuingPortee disciplinary charges for being in an unauthorized area [R. 1 at p. 26-30, "Causes of Action," Count II, ¶¶ 160-167; Count III, p. 32, ¶¶ 183-84]; and 6) Defendants Jones and Sumner violated Portee's rights under the ADA and RA in relation to Portee's use of a four-wheeled walker with seat [R. 1 at p. 31-32, "Causes of Action," Count II, ¶¶ 178-182].

Thus, in sum, Portee asserts various Eighth Amendment claims related to his medical care (numbers 1, 3, and 4 listed above), claims under the ADA and RA related to his use of a four-wheeled walker with seat (numbers 2 and 6 above), and claims under the Eighth Amendment related to disciplinary charges (number 5 above). As relief, Portee seeks "normal, compensatory, and punitive damages," as well as "all other just and equitable relief that this Honorable Court deems necessary." [R. 1 at p. 33]

In their motion, Defendants argue that Portee's complaint should be dismissed because it is untimely; Portee fails to state a claim for which relief may be granted for violation of the First and Eighth Amendments, as well as for violation of the ADA and/or RA; Defendants Cimarossa and Davis are entitled to statutory immunity; and all of the Defendants are entitled to qualified immunity. [R. 49-1] In the alternative, Defendants seek summary judgment. [Id.]

II.

Before addressing the merits of Defendants' motion, the Court notes that, on February 6, 2019, the Court entered an order directing Portee to file a response to Defendants' motion within 45 days and specifically warned him that, if he failed to do so, the Court may dismiss his case for failure to prosecute, see Fed. R. Civ. P. 41(b), or grant Defendants' motion for any reason adequately supported by the record, see Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). [R. 50]. On March 26, 2019, after a copy of the Court's Order denying Portee's "motion to stay/motion for appointment of counselor" was returned as undeliverable [R. 52, 53], the Courtentered an Order noting that, although Portee had not updated his address of record with the Court, a review of the BOP's "Inmate Locater" website showed that Portee had been transferred to USP-Coleman I. [R. 54]¹ Thus, in light of these circumstances, the Court directed that the Clerk of the Court update Portee's address of record and sua sponte extended the time by which Portee must file his response through and including April 15, 2019. [Id.]

Portee's extended response deadline has now expired, and Portee has not filed any response to Defendants' motion. Portee was specifically warned that his failure to file a response may result in the dismissal of his case for failure to prosecute. Dismissal is generally warranted where the party fails to act in the face of a clear prior warning that the case would be dismissed. Bowles v. City of Cleveland, 129 F. App'x 239, 244 (6th Cir. 2005). Thus, Portee's failure to respond alone would justify dismissal of his Complaint. Regardless, in the interest of completeness and finality, the Court will also consider the substantive arguments set forth by Defendants in their motion to dismiss or, in the alternative, motion for summary judgment.

III.

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 Portee 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, Defendants move both to dismiss and for summary judgment, attaching and relying upon declarations extrinsic to the pleadings in support of their motion. [R. 49] Thus, the Court will treat Defendants' 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).

If the moving party demonstrates that there is no genuine dispute as to any material fact and that they are entitled to a judgment as a matter of law, that party is entitled to summary judgment. Kand Medical, Inc. v. Freund Medical Products, Inc., 963 F. 2d 125, 127 (6th Cir. 1992). The moving party does not need its 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 pointto evidence of record in affidavits, depositions, and written discovery which demonstrates that a factual question remains for trial. Hunley v. DuPont Auto, 341 F. 3d 491, 496 (6th Cir. 2003); United States v. WRW Corp., 986 F. 2d 138, 143 (6th Cir. 1993) ("A trial court is not required to speculate on which portion of the record the non-moving party relies, nor is there an obligation to 'wade through' the record for specific facts."). However,...