Smith v. Sumner

1

RONALD E. SMITH, Plaintiff, v. STEPHANIE SUMNER, et al., Defendants.

Civil Action No. 6:22-216-DCR

United States District Court, E.D. Kentucky, Southern Division, London

May 24, 2023

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, Chief Judge United States District Court

This matter is pending for consideration of a motion to dismiss or alternatively, for summary judgment filed by Defendants Stephanie Sumner, Ms. Lawson, and Carrie Cunnagin. [Record No. 16] Plaintiff Ronald Smith has filed a pleading captioned “Rebuttal and Request to be Appointed Counsel” in response [Record No. 18] and the defendants have filed a reply. [Record No. 19] The matter is briefed and ripe for review.

I.

As a preliminary matter, Smith's “Rebuttal” includes a request that the Court appoint counsel to represent him, stating that the paralegal who has been assisting Smith will soon be released. [Record No. 18 at p 3] Smith believes that appointment of counsel is warranted considering the “seriousness of the matter” and because he is incarcerated with limited funds. He also refers to the “reluctance of the Bureau of Prisons and individual institutions to provide complete medical records to inmates” as a basis for his request, inasmuch as an “outside attorney . . . can access and obtain the necessary copies of all pertinent medical records.” [Id.]

However “[t]he appointment of counsel in a civil proceeding is not a constitutional right and is justified only in exceptional circumstances.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003). When considering whether to grant such a request, the court considers the complexity of the case, the movant's likelihood of success on the merits of the claim, and the ability of the plaintiff to represent himself competently. Cleary v. Mukaskey, 307 Fed.Appx. 963, 965 (6th Cir. 2009).

Upon full review of the above factors, the Court concludes that this case does not present the kind of extraordinary circumstances which would warrant appointment of counsel. While Smith's allegations relates to medical needs, his claims are not unduly complex and he has adequately presented them in a complaint. In addition, Smith has demonstrated an ability to represent himself as shown by his response to the defendants' motion which includes an analysis of the medical records relating to his claims. [Record No. 18]

To the extent that Smith's reference to general difficulties experienced by inmates when requesting medical records could be broadly construed as a motion under Rule 56(d) of the Federal Rules of Civil Procedure requesting that the Court defer consideration of Defendants' motion pending discovery, his does not request discovery nor does he suggest that he has personally been denied access to any medical records necessary to respond to the defendants' motion. Moreover, the defendants have submitted approximately 480 pages of medical records related to Smith's claims [Record No. 16-2, Cimarrosa Decl., Att. B], and Smith does not contend that the defendants' submission was incomplete or misleading. In fact, he re-submits several of these same records through his Rebuttal. [Record No. 18-1] Finally, Smith's Rebuttal does not include an affidavit or declaration which must be submitted in support of Rule 56(d) motion. See Fed.R.Civ.P. 56(d) (requiring the non-movant to show “by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition”). Thus, Smith's motion will be denied to the extent that his Rebuttal could be construed as a separate motion to appoint counsel and/or a request for discovery filed pursuant to Fed.R.Civ.P. 56(d).

II.

Smith alleges that, on September 16, 2021, he was transferred to the United States Penitentiary (“USP”)-McCreary with an open right shoulder wound that was “bleeding, draining, burning, red and extremely painful.” [Record No. 5 at p. 2] He further alleges that, upon arrival, he was placed in COVID quarantine for 22 days with no medical care or medication for this wound. [Id.] Smith asserts that, after he was released from quarantine, he was placed in a cell in Unit A with another inmate. [Id.]

According to Smith, after he completed out numerous “sick-call” forms, Defendant Nurse Lawson “finally” brought him several bandages for his wound, but did not attempt to place the bandages on his wound. [Id.] He states that, when he asked Lawson how he was supposed to put the bandages on his right shoulder (as he is right-handed), she replied, “Figure it out.” [Id.] Smith contends that he was told “several times” by Lawson and MLP Sumner to have his cellmate change his dressings for him. [Id.]

But according to the medical records submitted by the defendants, Smith was seen for a history and physical on September 21, 2021, during which he reported a “sore” on his right shoulder, which he stated had been present for about 3 years and was getting bigger. There was no drainage noted from the area at that time, but some dry drainage was noted regarding Smith's old dressing. Smith stated that he had never seen dermatology for evaluation. The acting clinical director believed the area on the plaintiff's shoulder was possibly a pyrogenic granuloma and a dermatology consultation was requested. Sumner also directed that Smith be provided with gauze sponges weekly for 30 days. [Record No. 16-2, Cimarossa Decl., Att. B at p. 65-66] Thereafter, Smith was provided with bandages on September 26, October 2, October 9, and October 17. [Id. at p. 73] Smith received wound care treatment from Nurse Privett and Lawson two times on November 11 and again on November 12, 13, 14, 15, and 16. [Id. at p. 79]

Smith also asserts in his Amended Complaint that, on November 9, 2021, he was taken for an outside appointment and on November 29, 2021, he was notified that the lesion was cancer. [Record No. 5 at p. 3] Smith claims that he was “repeatedly denied necessary and crucial appointments and follow-ups by outside physicians and specialists once the lesion was determined to be a rare form of cancer.” [Id.] Specifically, he states that on December 15, 2021, doctors at the University of Kentucky Medical Center “informed USP-McCreary” to refer his case to a General Surgeon, as his was a very rare form of skin cancer. [Id.] But Smith claims that “Carrie Cunnagin repeatedly ignored the physicians at the University of Kentucky when they had ordered specialized treatment and follow-up appointments.” [Id.]

According to Smith's medical records, on December 14, Sumner submitted an urgent consultation for an initial General Surgeon evaluation, which was scheduled for December 28. [Record No. 16-2, Cimarossa Decl. at Att. B, p. 20] On December 28, the General Surgeon referred Smith to the Markey Cancer Center at the University of Kentucky. [Id. at p. 572] An Urgent Consult request was placed [id.] and Smith was seen by an Oncologist on February 3. [Id. at p. 287] On February 15, 2022, Smith had surgery for the cancerous lesion and was hospitalized at the University of Kentucky until March 3. [Id. at p. 254, 279] Smith states that, after undergoing surgery on February 15, 2022, “after-care was nonexistent” and “[r]equired follow-ups were ignored,” and “medications were ignored or denied.” [Record No. 5 at p. 3] He further contends that the lesion “appears to be returning.” [Id.] However, according to his medical records, after Smith was discharged and returned to USP-McCreary, he was repeatedly evaluated and provided medication and other treatment by medical staff throughout March and April and sent out for follow-up appointments with Oncology. [Record No. 16-2, Cimarossa Decl. at Att. B., p. 225-248] Smith was transferred to FMC-Lexington on May 4.

According to Smith, after surgery on February 15, he began the Administrative Remedy Process at USP-McCreary. [Record No. 5 at p. 3] He acknowledges that the “official replies” to his grievances indicated that certain forms were missing, but Smith attributes this problem “to the Administration at USP McCreary attempting to stall or nullify the entire process.” [Id.] He claims that once he was transferred to the FMC-Lexington, he “receive[d] replies to [his] requests and finally began receiving regular exams, testing, and care for the wound.” [Id.] Based on the foregoing allegations, Smith seeks to assert claims against Defendants Sumner, Lawson, and Cunnagin based on the denial of medical treatment in violation of his rights under the Eighth Amendment. [Record No. 5 at p. 4]

The defendants seeks dismissal of Smith's Amended Complaint based on his failure to fully exhaust his available administrative remedies before filing suit. [Record No 16] They further argue that dismissal is also warranted because, in light of the United States Supreme Court's decision in Egbert v. Boule, 142 S.Ct. 1793 (2022), this Court should decline to imply a Bivens remedy for Smith's Eighth Amendment claim because it arises in a new context and there are several special factors counseling against its recognition. [Id.] Alternatively, they argue in that summary judgment is appropriate because Smith's medical records demonstrate that prison medical staff were not deliberately indifferent to his medical needs. [Id.]

Smith disagrees with the defendants' contentions, repeating his claims that Lawson and Sumner directed him to have his cellmate change his dressing and claiming that the medications provided post-surgery did not adequately relieve his pain. [Record No. 18] However, he does not address the defendants' argument that his Amended Complaint should be dismissed by virtue of his failure to exhaust his administrative remedies prior to filing of this action. Nor does he address whether this Court should decline to imply a Bivens remedy...