Opinion
Civil Action 20-cv-01242-MEH
01-21-2021
BRADLEY CROW, Plaintiff, v. DR. LETO QUARLES AND MICHELLE BERRY, Defendants.
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 Sterling Correctional Facility (“SCF”). 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 Nurse Michelle Berry (“Nurse Berry”) and Dr. Leto Quarles who treated him during his stay at DRDC. Defendant Dr. Quarles has not yet been served and has not appeared. Defendant Nurse Berry has appeared and moves for dismissal on the basis of qualified immunity. ECF 47.
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). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Because they add context and detail to his Amended Complaint, the Court also includes the allegations and arguments that Plaintiff raises in his several responses in opposition to Nurse Berry's 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 asks 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 Nurse Berry 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 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. 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 together came to examine his hip, but when 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 see 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.
LEGAL STANDARD
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the 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
As a CDOC employee, Nurse Berry seeks qualified immunity protection from Plaintiff's lawsuit. Plaintiff counters that Nurse Berry is a contract nurse and not a state employee. ECF 72 at 10. However, the case record contradicts Plaintiff's assertion. CDOC waived service of process on Nurse Berry because she is an employee. ECF 20; ECF 48 at 1, n.1; ECF 79. Qualified immunity is available to Nurse Berry if she meets its requirements.
I. Qualified Immunity
Qualified immunity protects from litigation a public official whose possible violation of a plaintiff's civil rights was not clearly violative at the time of the official's actions. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial or face the other burdens of litigation. Ahmed v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (internal quotations and citations omitted). The privilege is an immunity from suit rather than a mere defense to liability. Id. The defense of qualified immunity requires that “(1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct.” Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1169 (10th Cir. 2020). The Supreme Court in Pearson v. Callahan emphasized that courts have the discretion to decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 555 U.S. 223, 236 (2009); see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009). Here, the Court begins by analyzing whether Plaintiff plausibly alleges an Eighth Amendment violation in the form of deliberate indifference to medical needs. Because the Court finds that he does not establish such a claim for relief, there is no need to consider whether the right was clearly established at the time.
II. Deliberate Indifference to Medical Needs
Plaintiff's sole claim is of 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 Nurse Berry's care with an infection already, but he argues that inadequate treatment caused it to worsen until his recent implant failed. 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 show that Nurse Berry already knew of the 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 Nurse Berry 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 complaint 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). Plaintiff argues that Nurse Berry was wrong to characterize him as a malingerer, but he does not establish how matters of treatment noncompliance, malingering, or other behaviors that interfere with treatment fall outside the scope of medical judgment and decision-making.
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 treatment provided. However, “the negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” Id. 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, and Plaintiff's allegations suggest that those diagnoses were not made until later, possibly at the hospital. However, Nurse Berry's actions may not be considered against those later diagnoses but rather only by what she actually knew at the time of the disputed treatment. Id.
Plaintiff raises a gatekeeper argument, contending that Nurse Berry's characterizations of him as a malingerer affected the treatment that others provided him. “[A] prison health official who serves solely as a gatekeeper for other medical personnel capable of treating the condition may be held liable under the deliberate indifference standard if she delays or refuses to fulfill that gatekeeper role.” Id. at 1232. Plaintiff's gatekeeper theory fails because Plaintiff already was receiving medical care. Nurse Berry did not bar access to treatment; she was part of the treating team. The infirmary setting implies that others, in addition to Nurse Berry, were treating him, and Plaintiff names Dr. Quarles as his treating doctor. Whether Nurse Berry's characterizations affected the quality of care that others provided is a matter that concerns their medical judgment and decision-making.
VI. 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. It would be futile to grant Plaintiff leave to file a second amended complaint against Nurse Berry. Curley, 246 F.3d at 1281-82; Fleming v. Coulter, 573 Fed.Appx. 765, 769 (10th Cir. 2014).
CONCLUSION
There is no doubt that Plaintiff finds himself in a difficult situation without a hip joint and dependent on a wheelchair while he awaits a new hip implant. Plaintiff blames Nurse Berry 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. Because Plaintiff does not plead a plausible Eighth Amendment violation claim, Nurse Berry is entitled to qualified immunity.
ACCORDINGLY, the Court respectfully RECOMMENDS that Defendant's Motion to Dismiss [filed October 19, 2020; ECF 47] be granted. The Court recommends further that all claims against Nurse Berry be dismissed with prejudice and without leave to amend. The Court RECOMMENDS that Defendant's Motion for Summary Judgment [filed November 3, 2020; ECF 56] be denied as moot.
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 Court notes that Dr. Quarles is the only other named Defendant, but she has not been served yet. Therefore, since there is not complete consent in this case, it should be drawn to a United States District Judge for disposition. The Court directs the Clerk of the Court to reassign this case to a District Judge pursuant to D.C. Colo. LCivR 40.1(a).
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.