The opinion of the court was delivered by: James F. McCLURE, Jr. United States District Court
Michael Walker ("Plaintiff"), an inmate presently confined at the Federal Correctional Institution, Manchester, Kentucky, initiated this pro se civil rights action. Service of the complaint was previously ordered.
Named as Defendants are the Health Services Department at Plaintiff's prior place of confinement, the United States Penitentiary, Lewisburg ("USPLewisburg"), and the following prison officials: Health Services Administrator Steve Brown and Physician Assistants ("PAs") Ferdinand Alama and Mark Peoria. Walker states that over a period of eight (8) months during his USP-Lewisburg confinement he complained to Defendants Peoria and Alama that he was suffering from "foot fungus, athlete's feet and a foot rash" from wearing the same shower shoes as everyone else. Record document no. 1, ¶ 2. PAs Peoria and Alama prescribed Clotrimazole cream for Plaintiff's condition. However, the complaint alleges that after using the cream for four (4) months, "the problems still weren't cured." Id. at ¶ 4.
After the Plaintiff voiced additional concerns, the PAs purportedly responded by telling him to keep using the medication and to make sure that it was taken three (3) times daily. Despite using the Clotrimazole cream as directed for three (3) to four (4) months, the complaint asserts that Walker's condition still did not improve. Plaintiff concludes by asserting that complaints regarding the alleged neglectful medical treatment which he submitted to Defendant Brown and a prison counselor were ignored. His complaint seeks compensatory damages.
Defendants responded to the complaint by filing a motion to dismiss and for summary judgment. See doc. 13. The motion has been briefed and is ripe for consideration.
Defendants note that prior to his arrival at USP-Lewisburg, Walker raised numerous similar complaints regarding foot related problems.*fn1 They acknowledge that Plaintiff was held at USP-Lewisburg from June 13, 2005 until May 25, 2006. A supporting declaration submitted under penalty of perjury by Defendant Alama also admits that Plaintiff was treated by the prison's Health Services staff on six (6) occasions for his athlete's foot condition. See Record document no. 17, Exhibit 2. Specifically, on October 4, 2005, approximately four (4) months after his arrival at USP-Lewisburg, Plaintiff requested and was provided with Clotrimazole cream for treatment of his athlete's foot. On November 15, 2005, Defendant Alama responded to a request by the Plaintiff by providing him with Clotrimazole cream.
On January 5, 2006, Walker was prescribed Ketoconazole cream by Defendant Alama for foot pruritus and educated as to regular body hygiene. Walker was given additional refills of Clotrimazole cream (per his request) by Alama on January 27, 2006 February 24, 2006, and March 31, 2006. During each of these visits, Alama avers that he again educated Plaintiff as to foot hygiene.
In a declaration submitted under penalty of perjury, Defendant Peoria states that he never treated Walker during his USP-Lewisburg confinement. See Id., Exhibit 3, ¶ 2. A declaration by Defendant Brown contends that "I have no recollection of this inmate" and there are no records indicating that Walker ever "sent me any written complaints." Id. at Exhibit 4, ¶ 2.
Defendants seek dismissal of the complaint or alternatively, entry of summary judgment on the grounds that: (1) the Plaintiff failed to exhaust his available administrative remedies; (2) the complaint fails to set forth a viable constitutional claim and (3) they are entitled to qualified immunity.
Defendants' pending dispositive motion is accompanied by evidentiary materials [documents] outside the pleadings which are relevant for purposes of both determining the issue of administrative exhaustion as well as their alternative arguments. Rule 12(b) provides in part as follows:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given ...