Opinion
CIV-19-726-SLP
09-22-2020
CHARLES R. BOWLDS, Plaintiff, v. TURN KEY HEALTH, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff Charles Bowlds, a pretrial detainee appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging a violation of the Fourteenth Amendment. (ECF No. 19). Defendant Turn Key Health has filed a Motion to Dismiss which is currently before the Court. (ECF No. 57). It is recommended that the Court grant the Motion to Dismiss.
I. BACKGROUND/PLAINTIFF'S ALLEGATIONS
Mr. Bowlds alleges that during his stay at the Logan County Detention Center (LCDC), Defendants acted with deliberate indifference to his medical needs in violation of the Constitution, specifically, by refusing him access to a dentist. (ECF No. 19). Plaintiff names four Defendants allegedly responsible: (1) Turn Key Health, medical provider for LCDC; (2) Damon Devereaux, Logan County Sherriff; (3) Randy Lester, LCDC Jail Administrator; and (4) Andrew Lindsey, shift supervisor. (ECF No. 19:1, 4-6).
According to Plaintiff, on or about April 1, 2019, he submitted a request to the medical provider-Turn Key Health-complaining of acute tooth pain. (ECF No. 19:9). In response, Mr. Bowlds states that he was informed that “ 'policy' required that the Plaintiff complete three 'treatments' of two medications before being considered to see a dentist.” (ECF No. 19:9). Thereafter, Plaintiff alleges that a small part of his tooth broke off, exposing the nerve, which caused his pain to intensify. (ECF No. 19:9). Plaintiff sought assistance and the nurse on duty gave him an “oral analgesic and a nerve pain medicine.” (ECF No. 19:9).
Mr. Bowlds states that the nurse also informed him of two treatment options: (1) if Plaintiff's family would pay for a dental appointment, jail officials would take him to the dentist and (2) Plaintiff's family could bring him a “tooth filler medication.” (ECF No. 19:910). According to Mr. Bowlds, neither option was viable, so he continued to seek administrative relief from Defendants Devereaux, Lester, and Lindsey. (ECF No. 19:10). According to Plaintiff, Defendant Devereaux responded, stating that the issue was not “life threatening, ” because it involved an exposed nerve and not an infection. (ECF No. 19:10). Defendant Lester also responded, stating that the treatment Plaintiff received was the extent of what could be done for him “unless [his] situation g[ot] worse.” (ECF No. 19:10). Finally, Plaintiff alleges that Defendant Lindsey stated: (1) the tooth issue was a “pre-existing condition that neither medical or the jail [wa]s obligated to treat” and (2) if Plaintiff could afford an extraction, the appointment would be scheduled. (ECF No. 19:10).
II. STANDARD OF REVIEW
Defendant Turn Key Health seeks dismissal under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 35:). Pursuant to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), to survive a motion to dismiss, a complaint must contain enough allegations of fact, taken as true, “to state a claim to relief that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 570). Under this standard, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original)).
The “plausibility” standard announced in Twombly and Iqbal is not considered a “heightened” standard of pleading, but rather a “refined standard, ” which the court of appeals has defined as “referring] to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Khalik, 671 F.3d at 1191 (citing Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011)). The Tenth Circuit has noted that the nature and specificity of the allegations required to state a plausible claim will vary based on context. Robbins, 519 F.3d at 1248. “Thus, [it has] concluded the Twombly/Iqbal standard is 'a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.'” See id. at 1247.
Accordingly, in deciding Twombly and Iqbal, there remains no indication the Supreme Court “intended a return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at 1191 (citing Iqbal, 556 U.S. at 678). It remains true that “[specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).
Finally, “a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Belmon, 935 F.2d 1106, 1110 (1991). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679.
In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, at 555 (2007) (citation omitted). Bare legal conclusions in a complaint are not entitled to the assumption of truth; “they must be supported by factual allegations” to state a claim for relief. Iqbal, 556 U.S. at 679.
III. DEFENDANT'S MOTION TO DISMISS
Defendant Turn Key Health seeks dismissal, arguing that Plaintiff has failed to state a claim for relief under 42 U.S.C. § 1983. (ECF No. 57:8-24). In support, Defendant argues that Plaintiff has failed to: (1) state a claim for municipal liability; and (2) allege facts in support of a constitutional violation. (ECF No. 57:8-24). The Court should conclude that Defendant's second argument has merit.
Defendant also moves to dismiss any state law claim for medical negligence. (ECF No. 57:2430). But Mr. Bowlds has not alleged medical negligence. See ECF No. 19; see also ECF No. 26:3 (the Court's characterization of Plaintiff's claim as “one of deliberate indifference to serious dental needs.”).
A. Plaintiff has Sufficiently Alleged Municipal Liability
“Under Section 1983, liability attaches only to conduct occurring 'under color of state law.' Thus, the only proper defendants in a Section 1983 claim are those who 'represent [the state] in some capacity, whether they act in accordance with their authority or misuse it.' ” Gallagher v. Nell Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (quoting Nat' Collegiate Athletic Assn v. Tarkanian, 488 U.S. 179, 191 (1998)) (alteration in original).
Mr. Bowlds has named Turn Key Health as a defendant based on its status as the medical provider for inmates at the LCDC. See ECF No. 19:4. As alleged by Defendant, “[t]he only method by which Turn Key, a private corporation, could arguably be found to have been deliberately indifferent would be through a municipal liability theory.” (ECF No. 57:19); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 n. 13 (10th Cir. 2003) (holding that the municipal liability theory established in Monel v. Department of Social Services of City of New York, 436 U.S. 658 (1978) extends to private entities acting under color of state law).
To state a claim for municipal liability, a plaintiff must allege: (1) the existence of a policy or custom, and (2) a direct causal link between the policy or custom and the constitutional injury alleged. Bryson v. Oklahoma City, 627 F.3d 784, 788 (2010). The Tenth Circuit has described several types of actions which may constitute a municipal policy or custom:
(1) “a formal regulation or policy statement”; (2) an informal custom “amounting] to 'a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law' ”; (3) “the decisions of employees with final policy-making authority”; (4) “the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval”; or (5) the “failure to adequately train or supervise employees, so long as that failure results from 'deliberate indifference' to the injuries that may be caused.”Bryson, 627 F.3d at 788.
Mr. Bowlds has alleged liability against Turn Key Health based on the existence of a “policy” which denied him dental care-regardless of the amount of pain he was in- until he completed three “treatments” of two medications, which could take up to 90 days. See ECF No. 19:9. Defendant acknowledges Plaintiff's reference to the "policy, ” but argues that the allegations are “conclusory” and “insufficient to establish Monell liability.” (ECF No. 57:22). But at this stage, Mr. Bowlds need not establish liability, he need only allege that the policy was the moving force behind the alleged constitutional deprivation. The Court should conclude that Plaintiff's allegations are sufficient to allege a “policy or custom.”
Even so, Plaintiff must still allege “a direct causal link between the policy or custom and the constitutional injury alleged.” See supra, Bryson. In terms of causation, Mr. Bowlds clearly alleges that it was the aforementioned “policy” which prevented him from seeing a dentist-the basis of his constitutional claim. (ECF No. 19:9). Thus, the Court should conclude that Plaintiff has sufficiently alleged a claim for municipal liability.
B. Plaintiff has Failed to Sufficiently Allege a Constitutional Deprivation
In addition to sufficiently alleging municipal liability, Mr. Bowlds must also sufficiently allege a constitutional deprivation. Plaintiff's claim is one of deliberate indifference to his serious dental needs. As a pretrial detainee, Plaintiff's claims are governed by the Fourteenth Amendment's Due Process Clause. Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019). The Tenth Circuit continues to evaluate such claims applying “an analysis identical to that applied in Eighth Amendment cases.” Id.; see also Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) ("Although the Due Process Clause governs a pretrial detainee's claim of unconstitutional conditions of confinement, the Eighth Amendment standard provides the benchmark for such claims.” (citation omitted)); Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980) (recognizing that the Eighth Amendment creates an obligation on the part of prison officials to provide inmates with a “level of medical care which is reasonably designed to meet the routine and emergency health care needs of inmates” and that this obligation includes the provision of dental care).
To demonstrate a prima facie case of Eighth Amendment cruel and unusual punishment based on the denial of medical care, a plaintiff must establish that the defendant acted with “deliberate indifference to [his] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). There are two components to this standard: first, a plaintiff must make an “objective” showing that the deprivation was “sufficiently serious;” and, second, a plaintiff must make a “subjective” showing that the defendant acted with “a sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298 (1991).
Recently, the Tenth Circuit Court of Appeals has rejected the argument that Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), would require the Court to conduct only an “objective inquiry” into pretrial detainee's allegations of deliberate indifference to serious medical needs. See Quintana v. Santa Fe County Board of Commissioners, F.3d, 2020 WL 5087899, at *3, n. 1 (10th Cir. 2020).
1. Objective Component
Defendant argues that Plaintiff has failed to allege facts which would establish the objective component of the deliberate indifference test. (ECF No. 57:12-14). But the Court has already determined that Mr. Bowlds' allegations are sufficient to satisfy the objective portion of the deliberate indifference standard. See ECF No. 26:6 (“Liberally construing plaintiff's pro se allegations, the Court finds he has alleged sufficient facts to support the objective component of a claim of deliberate indifference to his dental needs.”).
2. Subjective Component
To satisfy the subjective component, Plaintiff must allege facts to demonstrate that a Turn Key employee, acting pursuant to Turn Key policy or custom, “ 'kn[ew] of and disregarded] an excessive risk to inmate health or safety.' ” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
“[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
In the Amended Complaint, Plaintiff identifies two Turn Key employees who responded to his complaints of pain: (1) the “provider” he initially saw after first complaining of tooth pain and (2) a shift nurse named “Debbie.” (ECF No. 19:9-10). The Court should conclude that Plaintiff has failed to sufficiently allege that either individual “ 'kn[ew] of and disregarded] an excessive risk to [Mr. Bowlds'] health or safety” for which Turn Key Health could be liable.
For example, Plaintiff alleges that the “provider” informed Mr. Bowlds that he was required to complete three “treatments” of two medications before being considered to see a dentist. (ECF No. 57:9). And Plaintiff states that “Nurse Debbie” gave him an oral analgesic and nerve pain medicine in response to his pain and advised him that he could have his family pay for a dental visit or bring him “tooth filler medication.” (ECF No. 19:9 10).
Thus, rather than deliberately disregarding Plaintiff's pain, Mr. Bowlds has affirmatively stated that these individuals treated his pain. Mr. Bowlds' disagreement with the type of treatment he received is insufficient to state a claim that either individual had acted with deliberate indifference to his serious dental needs and the Court should dismiss the claim against Defendant Turn Key Health. See Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 811 (10th Cir. 1999) ("Plaintiff simply disagrees with medical staff about the course of his treatment. This disagreement does not give rise to a claim for deliberate indifference to serious medical needs. Therefore, the district court properly dismissed this Eighth Amendment claim.”).
In response to the Motion to Dismiss, Plaintiff points to a "provider note” submitted in connection with the Special Report which he cites in support of his deliberate indifference claim. (ECF No. 65:4). According to Plaintiff, the provider, Malachi Martin, documented Plaintiff's blood pressure as 165/103 and his observations of Plaintiff's tooth as "decayed, cracked, [with an] exposed nerve.” (ECF No. 65:4). Plaintiff states that although Mr. Martin wrote an order for a tooth extraction to be scheduled, the order was crossed out. (ECF No. 65:4). According to Mr. Bowlds, "[b]y this note alone it should be clear that the Provider ‘Knew' of and disregarded] the condition of the Plaintiff.” (ECF No. 65:4). Mr. Bowlds also alleges that Mr. Martin "unprofessionally refused to even allow the Plaintiff to come to the Health Care Provider visit.” (ECF No. 65:6). But Plaintiff's Amended Complaint did not contain these allegations against Mr. Martin and this Court has held that "Plaintiffs may not amend their Complaint by adding factual allegations ... in opposition to a motion to dismiss.” Scott v. Hormel, 2019 WL 3935101, at *2, n.2 (W.D. Okla., Aug. 20, 2019) (citation omitted).
The Court previously stated that "Plaintiff has alleged more than a mere disagreement with a prescribed course of treatment.” (ECF No. 26:3). But this finding was made only in connection with the discussion regarding whether Plaintiff had sufficiently alleged the objective component of the deliberate indifference standard. See ECF No. 26:6, 8.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should grant Defendant Turn Key Health's Motion to Dismiss. The parties are hereby advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by October 9, 2020. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF THE REFERRAL
This Report and Recommendation does not terminate the referral.