Opinion
Civil Action 20-cv-01242-CMA-MEH
09-15-2021
BRADLEY CROW, Plaintiff, v. DR. LETO QUARLES, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff Bradley Crow is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”) at its Colorado Territorial Correctional Facility (“CTCF”). He brings this lawsuit under 42 U.S.C. § 1983, claiming deliberate indifference to his medical needs in violation of the Eighth Amendment right against cruel and unusual punishment. His lawsuit concerns the quality of treatment that he received while at the Denver Reception and Diagnostic Center (“DRDC”). He sues Dr. Leto Quarles (“Dr. Quarles”) who treated him during his stay at DRDC. Defendant Dr. Quarles moves for dismissal for failure to state a plausible claim for relief. ECF 151. Also before the Court is Plaintiff's Motion to Amend Complaint (ECF 166). Both Motions are fully briefed, and the Court finds that oral argument will not materially assist in their adjudication. For the below reasons, the Court recommends that the Motion to Dismiss be granted and the Motion to Amend be denied.
BACKGROUND
For purposes of this ruling, the Court accepts as true the factual allegations-but not any legal conclusions, bare assertions, or conclusory allegations-that Plaintiff raises in his Amended Complaint (ECF 13) and Supplement (ECF 138). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Because they add to his Complaint, the Court also includes the allegations and arguments that Plaintiff raises in his several responses in opposition to Dr. Berry's prior filed motions to dismiss and for summary judgment. Lastly, the Court considers the medical records from the subject treatment that Plaintiff submitted at ECF 12 in his previous lawsuit, Civil Action No. 19-cv-03105-LTB (D. Colo). In both his Amended Complaint (ECF 13 at 4, 9) and subsequent filings (ECF 72 at 1; ECF 72-1 at 2; ECF 76 at 9; ECF 81 at 10), Plaintiff asked for those treatment records to be made part of this lawsuit. Because the treatment records are central to his deliberate indifference claim, and because there is no dispute over their authenticity, the Court includes them in the Rule 12(b)(6) analysis. N.E.L. v. Gildner, 780 Fed.Appx. 567, 571 (10th Cir. 2019).
I. Alleged Facts
Plaintiff alleges that on March 19, 2019, he began a seven-week stay at the DRDC infirmary to recover from hip replacement surgery. He alleges that during his stay he developed a MRSA infection and rhabdomyolysis, which ultimately resulted in the removal of his hip implant. He alleges that Dr. Quarles failed to take appropriate action to prevent the infection from developing and worsening to that point. ECF 13.
He first experienced a bout of excessive drainage and discharge coming from the surgery site. ECF 13 at 5. Nurse Michelle Berry (“Nurse Berry”) smelled the bandage and asked him if he had poured water on it or used ice packs to simulate drainage. Nurse Berry called Dr. Quarles to Plaintiff's bedside. Together, they stressed to him the risk of infection and complications (including the potential loss of his leg) if he was not serious about follow-up care. ECF 68 at 2; ECF 72 at 1-3; ECF 77 at 1-2. Nurse Berry also accused him of manipulating the wound. ECF 13 at 6; ECF 68 at 3.
He ran a very high fever for a prolonged period, but Nurse Berry accused him of manipulating the thermometer. ECF 13 at 5; ECF 72 at 12; ECF 77 at 1; ECF 81 at 1. He complains that Nurse Berry falsely told him that the lab test results were normal. When he continued to press her about the results, Nurse Berry called him a hypochondriac. ECF 68 at 3. Plaintiff says that Nurse Berry and Dr. Quarles came to examine his hip, but after he did not move his leg as they wanted, they simply left. ECF 72 at 3.
Plaintiff alleges that he was manifesting several obvious signs of infection including drainage, fever, and swollen glands. ECF 68 at 7; ECF 77 at 1; ECF 81 at 1. His condition should have prompted Nurse Berry to test a sample of the infection to determine the appropriate antibiotic to prescribe (which Plaintiff claims was the proper infection protocol to follow). ECF 13 at 5-6; ECF 76 at 5. Plaintiff concedes that lab tests were performed (ECF 68 at 4; ECF 72 at 3), but he alleges they were either the incorrect test type or that he was misled about their results. He concedes that he was given antibiotic medication (ECF 72 at 3), but he contends it was the wrong kind (ECF 68 at 2; ECF 81 at 2).
Indeed, Plaintiff generally concedes that he received medical care during his stay at the DRDC infirmary. ECF 76 at 5-6. However, he considers the quality of that medical care as inadequate, and he contends that Nurse Berry was too focused on characterizing him as a malingerer to recognize his treatment needs. ECF 72-1 at 4.
The treatment records that Plaintiff submits are consistent with his allegations with respect to the time frame, his ongoing concerns about infection, and Nurse Berry's inquiries about malingering behaviors. They also show medical staff's concerns about how Plaintiff's treatment noncompliance and anxieties were hindering the provision of care. However, the treatment records do not confirm that he ran a continuously high fever, and they show no significant, objective signs of infection.
Plaintiff alleges that this period of post-surgery recovery ended with the removal of his implant. He was transferred from the DRDC infirmary to CDOC's Correctional Care Medical Facility (“CCMF”) hospital where he was treated by Dr. Iams. ECF 13 at 6; ECF 76 at 7. He now is wheelchair-bound and awaits repeat surgery for a new hip joint. ECF 13 at 6; ECF 77 at 2.
Plaintiff's supplemental filing (ECF 138) adds nothing substantively different or new. There, he complains about Dr. Quarles' failure to address his severe systemic infection. He alleges that she released him from the infirmary despite a verbal agreement to fix his leg and despite the medical crisis. He repeats his grievance about Dr. Quarles' failure to follow proper antibiotic protocol by discontinuing his “Doxycycin” medication after just two days instead of finishing the full course of it. Plaintiff concedes that Dr. Quarles changed the antibiotic to Keflex, but he asserts that it is not meant to treat an MRSA infection.
In its minute orders at ECF 141 & 164, the Court expressly limited the scope of Plaintiff's pleadings against Dr. Quarles to his Amended Complaint (ECF 13) and its supplement (ECF 138). Nevertheless, the Court observed at ECF 164, that “the new claim that he seeks to raise is substantially similar to what he already has asserted.” The same can be said of the arguments that he raises in his second response (ECF 168) to the Motion to Dismiss. For the sake of thoroughness and because Defendant replies to it (ECF 171), the Court will include it.
In that second response (ECF 168), Plaintiff reiterates that the relevant time period of his claim is April 22, 2019 to May 13, 2019 which roughly correlates with the start of the treatment history discussed above. He repeats the allegation that Dr. Quarles refused to treat his systemic infection which he says consisted of MRSA and rhabdomyolysis. Or more correctly stated, she refused to continue treatment, discharging him from care too early and by not coordinating with the correctional facility to where he was transferred. However, Plaintiff concedes that his infection was clearly documented in his medical records. Plaintiff does not address what influence Dr. Quarles had over his transfer and its effect on bring his treatment at the prior facility to an end. Nor does Plaintiff describe what efforts he undertook at the new facility to have his medical care resumed.
Plaintiff's reply (ECF 173) in support of his motion to amend provides still more information about his deliberate indifference claim. He clarifies the time frame of his claim as running from April 22, 2019 (when antibiotics were stopped) until he was admitted to the hospital because of reinfection. Plaintiff complains that during that intervening time, Dr. Quarles provided him no medical attention. He concedes that lab tests were performed, and those tests showed the presence of MRSA and rhabdomyolysis, but he does not regard lab work as medical care. Not only did Dr. Quarles not treat the condition and prematurely released him from the clinic, but she hid the diagnosis from both himself and Sterling Correctional Facility to where he was transferred. Indeed, she used him as a “Trojan horse” to spread the disease. The untreated infection necessitated the removal of the hip implant and caused other medical problems. He has not yet received a new hip implant, and he remains wheelchair-bound.
LEGAL STANDARD
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of a plaintiff's complaint. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts that allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Iqbal, 556 U.S. at 679-80. Second, a court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, then the claim survives the motion to dismiss. Id. at 680.
Plausibility refers “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.'” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).
II. Treatment of a Pro Se Plaintiff's Complaint
There is an additional reason why the Court considers the full breadth of Plaintiff's allegations drawn from his various filings. A federal court must construe a pro se plaintiff's “pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [A] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interprets this rule to mean, if a court “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). That does not mean, however, that a court should “assume the role of advocate for the pro se litigant.” Id.: see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (“we will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded” (quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989))).
ANALYSIS
I. Deliberate Indifference to Medical Needs
Plaintiff's overarching claim is deliberate indifference to his medical needs. “[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)) (internal citation omitted). A claim for deliberate indifference must satisfy both an objective and a subjective component. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006).
A. Objective Component
The objective component is met if “the harm suffered is sufficiently serious to implicate the Cruel and Unusual Punishment Clause.” Id. (citation and quotation marks omitted). “A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal citation omitted). Its purpose is to limit claims to significant, as opposed to trivial, suffering. Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014).
Plaintiff is unclear whether he entered the infirmary and came under Dr. Quarles' care already with an infection, but he argues that inadequate treatment caused it to worsen and the implant to fail. The Court assumes for present purposes that Plaintiff pleads the existence of an objectively severe medical condition.
B. Subjective Component
To prevail on the subjective component, a prisoner must show that the defendant knew of a substantial risk of harm but still disregarded that risk by taking no reasonable measures to abate it. Spradley v. LeFlore Cty. Det. Ctr. Pub. Tr. Bd., 764 Fed.Appx. 692, 699 (10th Cir. 2019). The inadvertent failure to provide adequate medical care does not give rise to an Eighth Amendment violation. Id. (quoting Estelle, 429 U.S. at 105-06). The Supreme Court has held that “a prison official must have a sufficiently culpable state of mind” to violate the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citation omitted). “[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the 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.” Id. at 837.
Plaintiff's allegations imply that Dr. Quarles already knew of the potential risk of harm that an infection could pose following hip implant surgery. Indeed, he was in the infirmary for post-surgery monitoring. Consequently, his deliberate indifference claim is not one of failure to provide medical care or delayed medical care. This case does not present the situation in Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014) in which medical staff simply refused to see the prisoner, over a prolonged period of time, even despite the shift commander's attempt to intervene.
There also is no showing that Dr. Quarles acted in conscious disregard of the risks that infection might cause. Plaintiff concedes that medical care (lab tests, antibiotic medication, and a physical check of leg movement) were provided in response to his infection concerns. Plaintiff's grievance is that she did not provide the kind of treatment that he contends was required, i.e., to conduct a specific kind of test that would have shown the presence of the type of infection he believed he had. However, what tests to perform is a matter of medical judgment. A prisoner cannot meet the subjective prong of a deliberate indifferent claim if the defendant was merely exercising her “considered medical judgment.” Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). A difference of opinion over what the course of treatment should have been or how a doctor should have handled a condition does not state a constitutional violation. As a general matter, the Court does not second-guess doctors. Sherman v. Klenke, 653 Fed.Appx. 580, 588 (10th Cir. 2016).
The medical care provided was generally consistent with infection concerns and the symptoms he was presenting at the time. His objection instead consists of a disagreement with the specific treatment provided. However, “the negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” Self, 439 F.3d at 1233. Nor is the misdiagnosis of a condition actionable. Id. at 1234. The submitted treatment records end before a formal diagnosis of MRSA or rhabdomyolysis was reached. Plaintiff's allegations are inconsistent about when those diagnoses were made, i.e., while still under Dr. Quarles' care or later, possibly at the hospital. To the extent Plaintiff alleges a later diagnosis, Dr. Quarles' actions may not be considered against them but rather only by what she actually knew at the time of the disputed treatment. Id.
In his more recent filings, Plaintiff frames his grievance in terms of prematurely releasing him from treatment and not advising others of the need for treatment. The decision whether to release a patient from a clinic entails medical judgment, and if Dr. Quarles made a mistake, medical negligence is insufficient. If the release was occasioned by his transfer to another facility, Plaintiff does not demonstrate how Dr. Quarles could be responsible for a housing decision. Plaintiff accuses Dr. Quarles of hiding his infection diagnosis both from himself and from others. However, that accusation is contradicted by his allegations which suggest his own subjective awareness of the infection and the diagnosis in his medical records. Plaintiff concedes that tests were performed and in his records. The alleged severity of the infection also would be inconsistent with Dr. Quarles' ability to hide it. In any event, Plaintiff does not deny receiving treatment after Dr. Quarles. He does not say that the new facility declined all medical care, and he concedes being taken to the hospital at some point.
In his supplement (ECF 138), Plaintiff supports his medical indifference claim with allegations of breach of duty, breach of oral contract, breach of a patient's bill of rights, and malfeasance. Although worded differently, they all consist essentially of negligence. For example, Plaintiff relies on a res ipsa loquitor theory, arguing that the fact of his infection, alone, implies Dr. Quarles' negligence. However, negligence in whatever form does not state a plausible medical indifference claim. Regarding the res ipsa loquitor theory, even "[a]ccidental or inadvertent failure to provide adequate medical care” does not constitute a violation of the Eighth Amendment. Spradley, 764 Fed.Appx. at 699 (10th Cir. 2019) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). Medical judgement beyond the scope of a nonexpert “even if grossly negligent, is not subject to second-guessing in the guise of an Eighth Amendment claim.” Id. (quoting Mata v. Saiz, 427 F.3d 745, 750 (10th Cir. 2005)). See also Sherman, 653 Fed.Appx. at 586-87.
Nothing in the record shows how Dr. Quarles could be held liable for the deliberate indifference of medical needs. For the same reason that the Court found no plausible claim against Nurse Berry, it finds none with respect to Dr. Quarles.
Regarding the range of negligence-based theories that Plaintiff raises, Dr. Quarles asks that this Court decline to exercise supplemental jurisdiction over them. However, the Court does not construe them as separately pleaded claims in addition to his deliberate indifference claim but rather as supplemental theories meant to bolster his deliberate indifference claim. Therefore, there are no separately existing, formally pleaded negligence claims for the Court to consider. In other words, there are no state law claims to be dismissed either for lack of federal subject matter jurisdiction or for the failure to state a plausible claim. The Court's ruling on the deliberate indifference claim fully disposes of this lawsuit.
II. Motion for Leave to Amend
Plaintiff requires the Court's leave to amend his pleadings, and Fed.R.Civ.P. 15(a)(2) states that it “should freely give leave when justice so requires.” Whether to grant leave to amend is left to the sound discretion of the Court, and in making that determination, the Court should weigh such factors as undue delay, bad faith or dilatory motive on Plaintiff's part, repeated failures to cure deficiencies, and undue prejudice to Defendants. Moore v. Reynolds, 153 F.3d 1086, 1116 (10th Cir. 1998); Maloney v. City of Pueblo, 323 F.R.D. 358, 360 (D. Colo. 2018) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)). None of those factors are present here. The case remains in the early pleading stage, and discovery has not yet commenced. The Court discerns no bad faith on Plaintiff's part. However, there is the additional factor of futility. Moore, 153 F.3d at 1116. An amendment is futile if the amended complaint still would be subject to dismissal. Jefferson Cty. Sch. Dist. v. Moody's Investor's Servs., Inc., 175 F.3d 848, 858-59 (10th Cir. 1999).
The purpose of his Motion to Amend Complaint (ECF 166) is to shift focus from negligence to a new theory to support his medical indifference claim. ECF 166 at 1. He alleges that Dr. Quarles did not comply with CDOC regulation of Colo. Dept. of Corrections, 700-2, Offender Health Services; Medical Scope of Service (2018) and breached the medical duty that it creates. This claim does not support a medical indifference claim under the Eighth Amendment for the same reasons the Court discusses above: liability under the Eighth Amendment requires “knowledge of and [a disregard of] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837 (1994). Plaintiff concedes he received medical care (lab tests, antibiotic medication, and a physical check of leg movement). Because the new theory still would not support his medical indifference claim, it would be futile to add it. Plaintiff's Motion to Amend Complaint should be denied.
III. No. Leave to Amend
Dismissal of a case is a harsh remedy, and a pro se litigant's pleadings are to be construed liberally. As a general rule, therefore, the Court may give such a litigant the opportunity to amend the complaint to cure a pleading defect. Hall, 935 F.2d at 1109-10; Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). However, a court may dismiss a complaint without an opportunity to amend if “it is patently obvious that plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110). Leave to amend is unwarranted here given the nature of the defects. The Court does not see a plausible claim even after taking an already expansive view of Plaintiff's allegations and request to consider the underlying medical records. This remains so even after Plaintiff's more recent attempts to bolster his deliberate indifference claim. It would be futile to allow Plaintiff to amend his complaint again. Curley, 246 F.3d at 1281-82; Fleming v. Coulter, 573 Fed.Appx. 765, 769 (10th Cir. 2014).
CONCLUSION
As the Court emphasized in its prior Recommendation (ECF 85), Plaintiff doubtlessly finds himself in a difficult situation without a hip joint and dependent on a wheelchair while he awaits a new hip implant. Plaintiff blames Dr. Quarles for his present condition, for allegedly not taking his complaints and symptoms of infection seriously. However, to hold her liable for a violation of the United States Constitution requires a showing of deliberate indifference. Plaintiff does not plead the strict elements required to state such a claim, especially when all the actions took place in a medical treatment setting. Mere disagreement with the treatment provided or even negligence or malpractice is insufficient. Plaintiff does not plead a plausible Eighth Amendment violation claim against Dr. Quarles.
ACCORDINGLY, the Court respectfully RECOMMENDS that Defendant's Motion to Dismiss [filed July 22, 2021; ECF 151] be granted and that the deliberate indifference claim against Dr. Quarles be dismissed with prejudice and without leave to amend. The Court further RECOMMENDS that Plaintiffs Motion to Amend Complaint [filed August 16, 2021; ECF 166] be denied.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); In re Garcia, 347 Fed.Appx. 381, 382-83 (10th Cir. 2009).
The Clerk of the Court shall mail a copy of this Recommendation to Plaintiff via certified mail return receipt requested and shall mail a copy to his case manager.