Opinion
CIV-21-346-SLP
10-25-2021
AARON N. LEWIS, Plaintiff, v. DR. KENT KING, et al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff Aaron N. Lewis, a state prisoner appearing pro se and in forma pauperis, purports to bring this civil rights action under 42 U.S.C. §1983 alleging he was denied medical care in violation of his constitutional rights. United States District Court Judge Scott L. Palk referred this matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
At all times pertinent to this cause of action, it appears Plaintiff was being held as a pretrial detainee in the Oklahoma County Detention Center (“OCDC”). Plaintiff was convicted of several criminal misdemeanors on February 12, 2021, in the Oklahoma County District Court, Case No. CM-2021-131. The docket sheet for this case may be reviewed at www.oscn.net, last accessed October 22, 2021.
Defendants Dr. Kent King and Turn Key Health Clinics, LLC (“Turn Key”) have filed a joint Motion to Dismiss and Brief in Support, Doc. No. 19 (“Motion”), contending dismissal is proper because Plaintiff has failed to state a claim upon which relief may be granted. Defendants also filed a Special Report of Review of Factual Basis of Claims Asserted Pursuant to 42 U.S.C. § 1983. Doc. No. 17 (“Special Report”). Plaintiff has responded to the Motion, see Answer to Defendants (sic) Motion to Dissmiss (sic) Doc. No. 25 (“Response”), to which Defendants have replied. Doc. No. 26. (“Reply”). Finally, Plaintiff has filed a Motion for Jury Trial. Doc. No. 27. For the reasons set forth herein, it is recommended Defendants' Motion to Dismiss be granted. It is further recommended Plaintiff be allowed to file an Amended Complaint. In light of the disposition of this case, it is recommended Plaintiff's Motion for Jury Trial be denied.
I. Procedural Background and Issues Raised
Plaintiff lodged his original Complaint, Doc. No. 1, against Dr. Kent King, Turn Key Health Clinics, and Dr. John Hughes. Because Plaintiff's Complaint contained only a bare statement that his Eighth Amendment rights had been violated, this Court afforded him the opportunity to cure the deficiencies by filing an amended complaint. Doc. No. 11. Plaintiff complied, filing his Amended Complaint against Dr. King, in his individual and official capacities, and Turn Key Health Clinic. Doc. No. 12. Plaintiff asserted one claim in his Amended Complaint:
Fail to provide proper Medical Care-8th Amendment/14thAmendment. On or about July 30th, 2020, while a detainee at Oklahoma County jail I had one surgery on my right ankle to repair damage from Motorcycle wreck-the reason I was arrested. Dr. King and Turn Key
refused to allow me follow-up appointments and surgeries with Dr. John Hughes.Doc. No. 12 at 7. Plaintiff listed these facts supporting his claim:
Dr. John Hughes performed surgery on 7/30/2020 and ordered that I return in 2 weeks to remove stitches and cast my ankle until further surgeries would be done. Dr. Kent King refused to have me sent from the jail back to Dr. John Hughes at Oklahoma Surgical Hospital.Doc. No. 12 at 7.
Because Plaintiff was a pretrial detainee at all times pertinent to this action, his condition of confinement claims spring from the Fourteenth Amendment, though the analysis is generally the same as that of an inmate under the Eighth Amendment. See Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999) (“In determining whether appellant's [Fourteenth Amendment conditions of confinement] rights were violated, [] we apply an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.”), abrogated in part on other grounds, Brown v. Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020).
After Defendants filed the Special Report and their Motion to Dismiss, this Court afforded Plaintiff the opportunity to respond. Plaintiff sought an extension of time to file a response. Doc. No. 21. On the same day, Plaintiff filed a document entitled, “Motion for Amend.” Doc. No. 22. This Court granted an extension, directing Plaintiff to “file either an Amended Complaint or a Response to Defendants' Motion to Dismiss no later than October 1, 2021.” Doc. No. 23.
Even though Defendants submitted a detailed Special Report supported by affidavits and medical records, they chose not to rely on the information in the Special Report. Their Motion relies solely on their contention that Plaintiff's Amended Complaint, considered alone, fails to state a claim upon which relief may be granted.
Ultimately, Plaintiff filed the document entitled “Answer to Defendants Motion to Dissmiss, ” Doc. No. 25, to which he has attached medical records generated by other doctors after Plaintiff was transferred to the custody of the Oklahoma Department of Corrections (“ODOC”). Plaintiff makes frequent references to the documents in the Special Report, and the first sentence of his “Answer” states, “Comes now, Aaron Lewis, to answer the defendants' motion to dismiss, through this amended complaint.” Doc. No. 25 at 1. Whether Plaintiff intended this document to be an amended complaint or a response to Defendants' motion to dismiss is perhaps open to interpretation. This Court, however, construes the document as a response.
II. Standard of Review
Defendants seek dismissal of Plaintiff's claim under Federal Rule of Civil Procedure 12(b)(6). Doc. No. 13. 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)). The “plausibility” standard announced in Twombly and Iqbal is not considered a “heightened” standard of pleading, but rather a “refined standard, ” which the Tenth Circuit has defined as “refer[ring] ‘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 (quoting Robbins, 519 F.3d at 1247) (additional quotations omitted).
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, the court 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.” Id. at 1247 (citations and quotations omitted). 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).
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. Bellmon, 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, 550 U.S. at 555.
III. Analysis
To state a claim under the Due Process Clause, analyzed under the Eighth Amendment standard, Plaintiff is required to allege enough facts to demonstrate Defendants' actions could rise to the level of deliberate indifferent to his serious medical needs. “The Supreme Court has established a two-pronged test for deliberate indifference claims. Under this test, a plaintiff must satisfy an objective prong and a subjective prong.” McCowan v. Morales, 945 F.3d 1276, 1291 (10th Cir. 2019) (quotations 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.” Requena v. Roberts, 893 F.3d 1195, 1215 (10th Cir. 2018) (quoting Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)).
Second, under the subjective component, an inmate must allege “the prison official acted with a sufficiently ‘culpable state of mind,' i.e., that the official “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety; the official must [have been] both . . . aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must [have] also draw[n] the inference.” Requena, 893 F.3d at 1215 (quotations and citations omitted). But “a delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (quotations omitted). “[T]he substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Requena, 893 F.3d at 1216 (quotations omitted).
Accepting the allegations in Plaintiff's Amended Complaint as true, Defendant King prevented Plaintiff from receiving care from a medical provider outside the OCDC. With no other context, Plaintiff has failed to state a claim against Defendant King. Plaintiff does not allege Defendant King prevented him from receiving any medical care after his surgery. Even liberally construed, Plaintiff's Amended Complaint can be construed as nothing more than a statement that he disagreed with the course of treatment he received from Dr. King-that is, Plaintiff preferred treatment from a medical provider outside the detention center. Thus, the factual allegations in his Amended Complaint do not state a claim based on deliberate indifference. Strain v. Regalado, 977 F.3d 984, 996 (10th Cir. 2020) (citing Johnson v. Leonard, 929 F.3d 569, 576 (8th Cir. 2019) (reasoning that a “mere difference of opinion over matters of expert medical judgment or a course of medical treatment fails to rise to the level of a constitutional violation” (citation omitted)).
As for Defendant Turn Key, Plaintiff has failed to allege sufficient facts to state a claim against this private entity based, as it must be, on vicarious liability. Tenth Circuit law holds that “a private actor [acting under color of state law] ‘cannot be held liable solely because it employs a tortfeasor-or, in other words . . . cannot be held liable under § 1983 on a respondeat superior theory.'” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (quoting Monell v. N.Y. City Dep.'t Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, “the Monell doctrine [extends] to private § 1983 defendants” acting under color of state law. Id. The court of appeals has summarized the doctrine as follows:
[A] plaintiff must show the existence of [an official] policy or custom which directly caused the alleged injury. A policy or custom includes a formal regulation or policy statement, an informal custom that amounts to a widespread practice, decisions of municipal employees with final policymaking authority, ratification by final policymakers of the decisions of subordinates to whom authority was delegated, and the deliberately indifferent failure to adequately train or supervise employees.Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017) (citation omitted). “[T]he longstanding interpretation of § 1983's standards for imposing municipal liability” requires that “a plaintiff must identify a . . . policy or custom that caused the injury” and “show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (quotations omitted) (citing Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997); City of Canton v. Harris, 489 U.S. 378, 389 (1989)). For causation, “the challenged policy or practice must be closely related to the violation of the plaintiff's federally protected right.” Id. at 770 (quotations omitted). Dismissal of a § 1983 claim against a private party that is otherwise subject to suit under the statute is appropriate where the plaintiff “has failed to identify any custom or practice of [the party] that has a direct causal link to the alleged constitutional violations.” See Sherman v. Klenke, 653 Fed.Appx. 580, 592-93 (10th Cir. 2016) (affirming dismissal of § 1983 action against contractor that provided inmate medical services).
RECOMMENDATION
For the reasons stated herein, it is recommended Defendants' Motion to Dismiss (Doc. No. 13) be granted, and Plaintiff's Amended Complaint be dismissed without prejudice. It is also recommended Plaintiff's Motion for Jury Trial, Doc. No. 27, be denied. It is further recommended Plaintiff be allowed to file a Second Amended Complaint, should he choose to do so. The parties are hereby advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by November 15th , 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation waives appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
Plaintiff set forth additional factual allegations in his Response to Defendants' Motion to Dismiss that were not included in his Amended Complaint. He should be provided an opportunity to assert those allegations in a Second Amended Complaint as they may support viable claims. See Moore v. Thomas, No. CIV-16-397-F, 2017 WL 4414739, at *1 n.2 (W.D. Okla. Aug. 24, 2017) (noting that a court may only consider additional factual allegations set forth in a plaintiff's response to a motion to dismiss to the extent those allegations are “consistent with the facts and theories advanced in the [Amended Complaint].” (quoting Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001)).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motions not specifically addressed herein are denied.