Kyles v. WilliamsKyles v. Williams
ORDER
Deonta Kyles, a prisoner who underwent two knee surgeries, sued his prison’s medical staff for deliberate indifference to his post-operative knee condition, which he asserts required more physical therapy than he received. The district court granted summary judgment for the defendants. It concluded that Kyles had not exhausted one part of this claim and that, on the exhausted part, he produced no evidence from which a rational jury could find the defendants liable. Its reasoning is correct, so we affirm.
We recount the facts in the light most favorable to Kyles, the opponent of summary judgment. See Carson v. ALL Erection & Crane Rental Corp.,
Kyles performed these exercises for several months until May 2010, when he was doing knee bends with weights in his cell and felt something “pop” in his knee. (He does not say that his knee bends were part
Over the next few months, during the fall of 2010, Kyles sought to restart physical therapy for his knee. Between August and November 2010 Kyles wrote approximately 15 letters to Dr. Parthasarathi Ghosh, the prison’s medical director, requesting physical therapy and enhanced medical care. The record does not reflect whether those letters, which went unanswered, were received, But Williams, the physician’s assistant, saw Kyles again in September after he fell and complained of pain in his shoulder and his knee. Williams ordered an x-ray of his shoulder and' an arm sling, prescribed ice and pain medication, and renewed his low-bunk permit. Kyles also saw a medical technician in December, when he complained about his knee and asked again for physical therapy.The technician had him see Williams a week later, in January 2011. After examining him, Williams decided to have Dr. Ghosh reevaluate Kyles. That evaluation did not occur as Dr. Ghosh retired in March.
Kyles filed two grievances about this sequence of events. His first grievance, which he filed as an emergency in November 2010, objected to limiting physical therapy in 2009 to eight sessions. The warden denied the grievance as not a true emergency, but invited Kyles to submit the grievance through the ordinary procedure. Kyles did not. Instead he appealed the warden’s denial of his emergency grievance to the prison system’s Administrative Review Board. The Board rejected the appeal.
Kyles’s second grievance concerned the lack of a medical reevaluation that Williams had advised in January 2011. He filed the grievance in July 2011, complaining that the medical director had not seen him despite his repeated requests over several months. A grievance counselor responded. While noting that Kyles had been referred to the medical director, the counselor did not schedule a reevaluation. So far as the record shows, Kyles did not appeal the response to his second grievance to the Administrative Review Board.
Kyles’s next step was this suit, where the defendants moved for summary judgment, raising two grounds. First, they argued that Kyles had failed to exhaust his administrative remedies. Second, on the merits they submitted testimony from Kyles’s surgeon, who said that physical therapy was not needed to resolve his knee pain; exercises were sufficient. The district court granted the defendants’ motions. It first determined that Kyles’s claims were limited to those raised in his November 2010 grievance (about physical therapy) because he supplied no evidence that he-exhausted other grievances. It then determined that Kyles-had not presented evidence that would allow a jury to find that the lack of physical therapy or other treatment reflected deliberate indifference.
We begin by addressing exhaustion. The district court properly concluded that Kyles had exhausted his claim about the lack of more physical therapy. Kyles submitted his grievance about this complaint
The district court also correctly rejected Kyles’s contention that the defendants could not raise non-exhaustion as an affirmative defense at the summary-judgment stage. Non-exhaustion can be asserted in a motion for summary judgment if the defendants have not waived the defense. See Hess v. Reg-Ellen Mach. Tool Corp. Emp. Stock Ownership Plan,
On the merits, Kyles argues that a jury reasonably could conclude that stopping physical therapy after eight sessions, or not restarting it after his knee “popped,” constituted deliberate indifference. But Kyles supplied no evidence suggesting that the absence of physical therapy caused his knee to “pop” or impaired its healing. Without evidence of causation, there is no actionable tort. See Fields v. Wharrie,
The district court also correctly granted summary judgment on Kyles’s claim that the defendants ignored his knee pain after it “popped.” One medical technician saw Kyles the day after his knee “popped” in May and scheduled him to see Williams, who saw him the next day and prescribed pain medication and a knee brace. Williams followed up in July, treated him again after his fall in September, and finally saw him in January 2011 after a visit with another medical technician. Each time she prescribed pain medication and directed him to follow up with her as needed. The defendants, therefore, did not consciously disregard a serious risk to Kyles’s pain. See Holloway v. Del. Cty. Sheriff,
AFFIRMED.