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Gbikpi v. Atkinson

United States District Court, E.D. North Carolina, Western Division

June 12, 2017

KOFFI GBIKPI, Plaintiff,
v.
KENNY ATKINSON, DOCTOR AMY ROSENTHAL, DOCTOR DAVID KAROL, and DOCTOR ALTON WILLIAMS, [1]Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         The matter now comes before the court on defendants' motion for summary judgment (DE 72) pursuant to Federal Rule of Civil Procedure 56(a) and defendants' motion to seal (DE 76). Plaintiff responded to defendants' motion for summary judgment, but did not oppose defendants' motion to seal. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants defendants' motions.

         STATEMENT OF THE CASE

         On July 11, 2014, plaintiff, a pretrial detainee, filed this civil rights action pro se pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges that defendants Kenny Atkinson (“Atkinson”), Dr. Amy Rosenthal (“Rosenthal”), Dr. David Karol (“Karol”), and Dr. Alton Williams (“Williams”) acted with deliberate indifference to his serious medical needs in violation of the Fifth Amendment to the United States Constitution. Defendants subsequently moved to dismiss[2] the instant action arguing that plaintiff failed to exhaust his administrative remedies. The court denied defendants' motion on November 4, 2015.

         Plaintiff subsequently filed an unopposed pleading captioned “Motion to Correct Section” requesting that his action be construed as one pursuant to 28 U.S.C. § 1331. Plaintiff next filed a motion to initiate discovery. Defendants responded to plaintiff's motion to initiate discovery, and asked that the court's discovery deadline be stayed until April 4, 2016, in order to provide defendants the opportunity to file dispositive motions raising the affirmative defense of qualified immunity. On March 9, 2016, the court denied as moot plaintiff's “Motion to Correct Section, ” granted defendants' request to stay discovery, and denied without prejudice plaintiff's motion to initiate discovery. Plaintiff then filed a pleading which the court construed as a motion for an extension of time to respond to defendants' discovery requests, which the court granted. Because the April 4, 2016, deadline for filing dispositive motions passed without the filing of any dispositive motion, the court, additionally, lifted the stay of discovery and imposed new discovery and dispositive motion deadlines.

         On April 18, 2016, defendants filed a second motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), which was fully briefed. The court subsequently notified the parties of its intent to construe defendants' motion as a motion for summary judgment pursuant to Rule 56(a), and granted defendants permission to seal docket entries 63-65. The court also denied plaintiff's motion to strike and granted in part and denied in part defendants' motion for summary judgment. Specifically, the court granted defendants' motion for summary judgment as to plaintiff's official capacity claims requesting monetary damages, but denied the remainder of defendants' motion. The court entered new discovery and dispositive motion deadlines.

         On March 15, 2017, defendants filed the instant motion for summary judgment arguing that plaintiff failed to establish a constitutional violation. Alternatively, defendants assert the affirmative defense of qualified immunity. As part of their motion, defendants submitted a Statement of No Material Facts as well as an Appendix which included the following: declarations from Ronald Dorman, [3] as well as defendants Atkinson, Rosenthal, Karol, and Williams; documents related to plaintiff's pending immigration proceedings; and portions of plaintiff's medical records. The motion for summary judgment was fully briefed. On the same date defendants filed their motion for summary judgment, defendants moved to seal the contents of their Appendix. Plaintiff then responded to defendants' motion for summary judgment and attached his personal declaration. After obtaining permission from the court, defendants filed a reply on May 8, 2017, and plaintiff filed a sur-reply on May 26, 2017.

         STATEMENT OF UNDISPUTED FACTS

         The undisputed facts are as follows. Plaintiff's complaint relates to the medical and psychiatric care he received following his March 26, 2013, committal to the Federal Medical Center in Butner, North Carolina (“Butner”) for the purpose of undergoing an evaluation to determine whether he was competent to stand trial for criminal charges in the United States District Court for the Middle District of Florida. (Karol Decl. ¶ 6; Williams Decl . ¶ 3); see also, 18 U.S.C. § 4241(d)). On April 9, 2013, Dr. Kwana Hayes, the psychiatrist who conducted plaintiff's court-ordered forensic examination, examined plaintiff. (Karol Decl. ¶ 8 and Attach. I, p. 8). Dr. Hayes noted that plaintiff complained of atypical auditory hallucinations, and made statements such as the following:

I keep hearing a noisy sound through my ear. I also getting electrical fire shock through my ear every time I want to talk. When people talking that making eco sound. So far that getting worse and is difficult for me to concentred doing one thing or another. This affecting my thinking process as well. Without any help, the going to be difficult for me to work as a pastor counselor.

(Id.) (no alterations to the original). Dr. Hayes suspected that plaintiff was experiencing tinnitus (a ringing or buzzing in the ears) as a side effect to psychotropic medications. (Id.) Based upon her observations, Dr. Hayes ordered that plaintiff's prescribed Risperidone be tapered. (Id.)

         Plaintiff then attended an appointment with defendant Karol, on April 15, 2013, at which time plaintiff complained of electric shock-like pain in both jaws and his neck, as well as noise in both ears resembling “radio static.” (Id. ¶ 9 and Attach. 1, p. 10). Plaintiff denied any hearing loss at that appointment. (Id. Attach. I, pp. 10, 13). Based upon plaintiff's representations, defendant Karol suspected a possible diagnosis of Meniere's disease (involving tinnitus, vertigo, and ear pain), and referred plaintiff for a hearing test. (Id. p. 13). After receiving notice that plaintiff's hearing screening results were abnormal, Karol referred plaintiff for an audiology evaluation. (Id. ¶ 11 Attach. I, p. 18). Karol additionally prescribed a prednisone injection to treat plaintiff's symptoms of tinnitus. (Id. p. 16). After following up with plaintiff the next day and finding no reports of improvement, Karol prescribed a prednisone taper for a period of two weeks to treat plaintiff's tinnitus symptoms. (Id. p. 17). Karol also submitted a consultation request for plaintiff to be seen by an otolaryngologist (“ENT”) for evaluation of his tinnitus, vertigo, and jaw claudication. (Id.)

         On May 20, 2013, plaintiff saw an ENT. (Id. ¶ 15 and Attach. I, p. 28). The ENT diagnosed plaintiff with tinnitus and possible vestibular dysfunction. (Id.) The ENT noted the possibility that plaintiff also had high-frequency sensorineural hearing loss. (Id.) The ENT recommended that plaintiff have a vestibulonystagmogram (“VNG”) or electronystagmogram (“ENG”) test for further evaluation of plaintiff's vestibular system. (Id.) Finally, the ENT recommended a baseline audiological evaluation. (Id.) After later reviewing the notes from plaintiff's ENT consultation, Karol could not determine whether the ENT considered a possible diagnosis of Meniere's disease and determined that it may be necessary to discuss plaintiff's case with Butner's contract audiologist. (Id. ¶ 17 and Attach. I, p. 28). Karol also referred plaintiff for the recommended VNG and ENG tests and renewed plaintiff's prescriptions for treatment of Meniere's disease. (Id. pp. 29, 31).

         On July 19, 2013, Dr. Hayes examined plaintiff and noted that plaintiff was still experiencing a lot of noise in his head, including voices. (Id. p. 33). Dr. Hayes later noted that plaintiff's [c]ase was complicated by probable exaggeration of symptoms due to the medico-legal context.” (Id. p. 34). Then, on August 6, 2013, plaintiff attended an appointment with Karol during which plaintiff complained of “jaw tightening, ” radio static in his head, and dizziness. (Id. ¶ 20 and Attach. I, p. 39). On August 15, 2013, an audiologist evaluated plaintiff and recommended that plaintiff have a consultation with an ENT for possible treatment of his Meniere's disease-related symptoms of vertigo and tinnitus. (Id. ¶ 22).

         On August 16, 2013, plaintiff saw Dr. Hayes as part of the competency evaluation process. (Id. ¶ 23 and Attach. I, p. 41). Dr. Hayes noted that plaintiff's psychological testing results were consistent with malingering, and that plaintiff's medical work-up had been unremarkable.[4] (Id.) Then, on September 13, 2013, Dr. Hayes and Dr. Pyant, a Butner psychologist, completed plaintiff's court-ordered forensic evaluation, and reported that plaintiff was assigned the principal diagnosis of malingering. ((DE 64), pp. 20, 23). Drs. Hayes and Pyant opined that plaintiff was competent to stand trial. (Id.) Plaintiff, however, remained at Butner for medical treatment related to his hearing issues, and began seeing defendant Williams, a psychiatrist, in December 2013. (Williams Decl. ¶ 4).

         Subsequent to the completion of his forensic evaluation, plaintiff continued to receive treatment for his hearing issues and Karol met with plaintiff to review the results of plaintiff's ENG. (Karol Decl. ¶ 25, and Attach. I, p. p. 46). Based upon the ENG results, Karol referred plaintiff for an MRI of plaintiff's brain and brain stem for evaluation of possible lesions which Karol believed to be a potential cause of plaintiff's symptoms. (Id.) Karol also again referred plaintiff to an ENT for re-evaluation and to determine whether plaintiff had Meniere's disease. (Id.) Plaintiff attended his second evaluation with the ENT on October 28, 2013. (Id. ΒΆ 27 and Attach. I, p. 49). The ENT requested that a repeat audiogram (hearing test) be performed to determine any interval changes to plaintiff's hearing level. ...


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