Opinion
CIV-21-346-SLP
03-10-2022
AARON N. LEWIS, Plaintiff, v. DR. KENT KING, et al., Defendants.
SUPPLEMENTAL 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 appropriate 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). Before the Court is Defendants' Joint Motion to Dismiss for Failure to State a Claim upon which Relief May Be Granted. For the following reasons, it is recommended that the Motion to Dismiss be granted as to Defendant Turn Key Clinics. It is further 1 recommended that, as to Defendant Kent King, M.D., the Motion to Dismiss be converted to a Motion for Summary Judgment and that summary judgment be granted to Defendant King.
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 March 8, 2022.
I. Factual Background
On July 7, 2020, Plaintiff crashed his motorcycle into a tree, resulting in a broken right distal tibia and fibula and road rash over several parts of his body. Following the crash, he was arrested. Plaintiff was taken to the emergency room at the University of Oklahoma Medical Center. Medical staff splinted his ankle, and he was released as a patient, told not to bear weight on the right foot, and incarcerated in the Oklahoma County Detention Center (“OCDC”) where he was assigned to the medical unit so the medical staff could attend him as needed. According to Plaintiff, the doctor who splinted his ankle prescribed Oxycodone for his pain.
Plaintiff contends the medical staff at OCDC did not administer the Oxycodone he contends was prescribed, substituting Tylenol and Naproxen for his pain. Plaintiff alleges that he was in constant pain. On July 30, 2020, Plaintiff underwent surgery on his ankle during which screws were inserted to hold his ankle in position while the bones healed. Doc. No. 31 at 3.
Plaintiff states that several X-rays were taken of his ankle in the medical unit of OCDC after the surgery, and these indicated his ankle was not healing properly. 2 According to Plaintiff, however, OCDC medical staff did not take any action to help his ankle mend, nor alleviate his pain.
Plaintiff filed this action against Defendants Dr. Kent King and Turn Key Health Clinics (“Turn Key”) alleging his due process rights were violated based on these Defendants' alleged deliberate indifference to his serious medical needs while he was a pre-trial detainee. Defendant King is an employee of Turn Key, a private entity under contract to provide medical services to OCDC inmates.
Previously, Defendants filed a Special Report (Doc. No. 17) and a Motion to Dismiss (Doc. No. 19) the Plaintiff's First Amended Complaint. Doc. No. 12. This Court granted the Motion (Doc. No. 32), but recognizing that Plaintiff had a potentially viable claim, allowed him the opportunity to amend his Complaint.
In response to the Court's order, Plaintiff filed a Second Amended Complaint. Doc. No. 31. Defendants King and Turn Key then filed what is purportedly a Motion to Dismiss, alleging as they had in their previous Motion, that Plaintiff failed to state a claim upon which relief may be granted. Doc. No. 34. In their Motion, however, Defendants rely heavily on documents attached to the Special Report in an attempt to demonstrate Defendant King was not deliberately indifferent to Plaintiff's serious medical needs. 3
Apparently, Defendants do not grasp the difference between a motion to dismiss for failure to state a claim upon which relief may be granted and a motion for summary judgment. Ironically, in their Reply to Plaintiff's Response to their Motion, Defendants accuse Plaintiff of confusing the two, stating, “Plaintiff again confuses the legal standard for a motion to dismiss, citing to the evidentiary burden for a motion for summary judgment in his Response brief.” Doc. No. 43 at 1. Indeed, as explained in further detail below, the Court finds it necessary to convert Defendants' Motion to Dismiss to a Motion for Summary Judgment, at least as it pertains to claims against Defendant King, given that the Court has examined the documents attached to the Special Report to which Defendants refer.
In his Response, Plaintiff attached his verified Affidavit and medical records generated after he was transferred to the custody of the Oklahoma Department of Corrections (“ODOC”). He refers to Defendants' Motion as a “Motion for Summary Judgment.” Because the Court has reviewed the documents upon which Defendant King relies, as well as the documents attached to Plaintiff's Response, the Motion to Dismiss must be converted to a Motion for Summary Judgment as it pertains to Defendant King.
II. Standards of Review
A. Motion to Dismiss
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 4 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). 5
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.
B. Summary Judgment
A court shall grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 6
“[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
III. Claims Against Turn Key
In his Second Amended Complaint, Plaintiff has again 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” 7 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 Cnty. 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[.]” Sherman v. Klenke, 653 Fed.Appx. 580, 59293 (10th Cir. 2016) (affirming dismissal of § 1983 action against contractor that provided inmate medical services).
In his Response, Plaintiff cites cases for the proposition that “[w]hen a local government or its officials possessing final policymaking authority delegate their authority, the delegated authority then becomes the policymaker.” Doc. No. 42 at 2. Plaintiff's statement is correct, but he misses the point. Plaintiff “has failed to identify any [policy, ] custom[, ] or practice of” Defendant Turn Key responsible for the alleged deliberate indifference of Defendant King. Sherman, 653 Fed.Appx. at 592-93. Accordingly, Plaintiff has failed to state a claim against Defendant Turn Key, and his claims against this Defendant should be dismissed. 8
IV. Claims Against Defendant King
Plaintiff's claim against Defendant King is based on King's alleged deliberate indifference to Plaintiff's 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 demonstrate “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 9 requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Requena, 893 F.3d at 1216 (quotations omitted).
To overcome Defendant King's Motion for Summary Judgment, Plaintiff must demonstrate there is a genuine issue of material fact as to whether Defendant King's care-or lack of care-demonstrates deliberate indifference to a serious medical need. In his Second Amended Complaint, Plaintiff alleges he had sustained a broken ankle before he was incarcerated in the OCDC. He alleges he suffered considerable pain while he was incarcerated as a pretrial detainee. The Intake Screening Forms attached to the Special Report note that Plaintiff had sustained an “acute fx [fracture] right distal tibia and fibula” of the right lower extremity. Doc. No. 17-11 at 1. The form notes that “Dr. Jason Lees at OU medical center wrote oxycodone 5mg Q4hr prn pain, [T]ylenol, [R]obaxin 1G Q 8hr. OU did not provide any prescriptions.” Id. at 2. The uncontroverted information on the Intake Screening Form is sufficient to demonstrate there is no genuine issue of material fact regarding the severity of Plaintiff's pain-producing injury.
The uncontroverted facts do not, however, support a conclusion that Defendant King was deliberately indifferent to Plaintiff's broken ankle or the pain it caused. Plaintiff contends he should have been given oxycodone rather than Tylenol and Naproxen. According to Defendant King's Affidavit, “Generally, medical providers do not prescribe narcotics to inmates housed within jails, including the 10 OCDC, because these prescriptions can pose a significant safety and security threat to staff and other inmates due to the risk of diversion and/or abuse.” Doc. No. 17-5 at 4. Defendant King states, however, that in his opinion Plaintiff's pain levels were appropriately treated with “prescription Acetaminophen, Ibuprofen and Naproxen while at OCDC.” Doc. No. 17-5 at 4.
The general policy to refrain from prescribing narcotics in a jail setting appears to be a policy of OCDC rather than a policy of Defendants King or Turn Key. The danger of prescribing narcotics in a correctional setting is reasonably related to a legitimate governmental interest in maintaining security and safety-a determination “peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Bell v. Wolfish, 441 U.S. 520, 540 n.23 (1979) (citations omitted). Notably, Dr. King did prescribe Tylenol 3 after Plaintiff's surgery when his pain would naturally have been expected to have worsened.
The record establishes that Defendant King was attentive to Plaintiff's injury. He ordered X-rays of Plaintiff's ankle two weeks after the accident. When he noted a slight displacement of the medial malleolus fracture, he concluded Plaintiff might need to undergo open reduction internal fixation surgery (“ORIF”) as the splinting previously performed at the OU Medical Center seemed inadequate. To that end, he immediately consulted with Dr. John Hughes, an orthopedic specialist. Dr. Hughes concurred with Defendant King's assessment, payment for the surgery was approved by Turn Key, and surgery was performed on July 30, 2020. Doc. No. 17-5 at 6-7.
After the surgery, Plaintiff was given Tylenol 3, a narcotic, for his increased pain. Although Dr. Hughes initially ordered a follow-up visit ten days after surgery, 11 Dr. Hughes' staff instructed medical personnel at OCDC that Plaintiff's sutures could be removed on site. Doc. No. 17-5 at 9.
Defendant King continued to monitor the progress of Plaintiff's healing. Defendant King again ordered X-rays of Plaintiff's ankle on August 7, 2020, five weeks after surgery. Plaintiff had not made any complaints about ankle pain during the five-week period between surgery and the follow-up X-rays. Doc. No. 17-5 at 910. Defendant King noted mild subluxation, though the ankle appeared to be healing.
X-rays taken on September 8, 2020, showed some lucency around the screw, a common finding after such surgeries. Nevertheless, Defendant King sought a consultation with Dr. Hughes. Because Dr. Hughes had been out of the office and was dealing with the disruption in medical care caused by the Covid pandemic, it took a few weeks for Dr. Hughes to consult with Defendant King. This delay was, however, solely attributable to Dr. Hughes and does not indicate any deliberate indifference on the part of Defendant King. Dr. Hughes eventually informed Defendant King that the X-rays did not indicate the need for further surgical intervention. As directed by Dr. Hughes, Defendant King removed Plaintiff's cast. Doc. No. 17-5 at 11.
In October, Plaintiff complained of nerve pain, and a nurse practitioner prescribed an appropriate medication. Another nurse practitioner saw Plaintiff on October 13, 2020. During that visit, Plaintiff abruptly left because he was upset by 12 the slow progress of his recovery and refused medical treatment until October 28, 2020, at which time he sought treatment because his ankle was swollen and numb. He was given an injection of Toradol for the pain. Doc. No. 17-5 at 12.
In November 2020, Defendant King sought another consultation with Dr.m Hughes because of Plaintiff's continued complaints of pain. Defendant King forwarded a letter from Dr Hughes to Plaintiff. The letter stated Plaintiff should continue to walk and that he would see improvement in time. Doc. No. 17-5 at 13. Dr. King attended Plaintiff on November 11, 2020, at which time Plaintiff continued to complain of pain. Defendant King noted:
I had (Plaintiff) brought to clinic. He is still upset that his right ankle ORIF/Fracture hasn't healed as he thought it should. In July, he drove a motorcycle 110 MPH into a tree. Was taken to OU ER then arrested.
I consulted Dr. Hughes and he underwent ORIF of the 2 bone ankle fracture. There is good alignment. He has some turning in of the foot and this may be from ligament damage. I have sent the X-rays to Dr. Hughes and his office stated it was healing and would take time. In his frustration, Mr. Lewis has refused care, meds, Naproxen-stating “yall messed up.” I asked him to [be] cooperative with medical staff and to take responsibility for his actions, his injury, etc. Redirected him several times. I told him that if he wasnted [sic] a second ortho opinion that his family could arrange this and we would arrange the appointment and transportation thru the jail. He agreed and I told him I would see him in 2 weeks for followup [sic]. I want the best outcome for his ankle fracture but it may not return to normal at this point.Doc. No. 17-11 at 283.
On November 24, 2020, Defendant King attended Plaintiff for a follow-up appointment. Plaintiff informed Defendant King that his ankle had “popped” after 13 which it felt much better. Defendant King surmised that some adhesions or scar tissue had released when the popping occurred. Doc. No. 17-5 at 13-14. According to Dr King, the traumatic injury itself, rather than the attempts made to mend the ankle, was responsible for Plaintiff's continued pain. Doc. No. 17-5 at 14.
Plaintiff was transferred to the custody of ODOC on February 24, 2021. Doc. No. 17-1. Medical documents attached to Plaintiff's Response demonstrate that Plaintiff continued to experience pain as the result of the traumatic injury to his ankle. He was unable to flex his ankle and walked with pronounced external rotation of his ankle. Doc. No. 42-1 at 7.
A telemedicine visit report dated June 8, 2021, demonstrated Plaintiff had developed post-traumatic ankle osteoarthritis with potentially painful hardware. The reporting doctor, like Defendant King, noted the aftermath of the traumatic accident:
Unfortunately, his ankle appears quite traumatized. Although physical therapy may help his gait, I feel he will have difficulties irregardless [sic]. If he has a considerable amount of discomfort within the ankle, he might be best served by follow-up with a foot and ankle orthopedic specialist to undergo hardware removal and arthrodesis at the same time[.]Doc. No. 42-2 at 2.
Plaintiff underwent surgery to remove the syndesmotic screw that was penetrating the bone preventing him from flexing his ankle and forcing him to walk with an external rotation of his ankle. On August 2, 2021, a follow-up examination 14 demonstrated Plaintiff had no pain or bruising. Plaintiff exhibited good flexion and was able to walk with minimal external rotation of his ankle. Doc. No 42-1 at 3.
The medical documents attached to Plaintiff's Response support only his contention that his medical need was serious. Even though further surgery was needed after his transfer to OCDC custody, nothing in the records supports a conclusion that Defendant King knew of and disregarded an excessive risk to Plaintiff's health and/or serious medical needs, as required to support Plaintiff's claim. Additionally, though Plaintiff complains of delay in medical care, which the record does not support, it is equally clear from his latest medical records that Plaintiff did not suffer lifelong handicap or permanent loss. Requena, 893 F.3d at 1216; Garrett, 254 F.3d at 950. To the extent Plaintiff suffered substantial pain, this was to be expected from his injury and was not likely the result of the care he received. Id. Thus, summary judgment should be entered in favor of Defendant King.
RECOMMENDATION
For the reasons stated herein, it is recommended that Defendant Turn Key's Motion to Dismiss (Doc. No. 34) be granted and Plaintiff's claims against Turn Key be dismissed without prejudice for failure to state a claim upon which relief may be granted. It is also recommended the Motion to Dismiss (Doc. No. 34) be converted to a Motion for Summary Judgment as to Plaintiff's claims against Defendant King and that summary judgment be entered in Defendant King's favor. Finally, in light 15 of these recommendations, Plaintiff's Motion for Jury Trial (Doc. No. 40) should be denied.
The parties are hereby advised of their right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by March 30th , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental 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.”).
This Supplemental 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. 16