Hoogerhuis v. Birnbaum
| Decision Date | 23 March 2021 |
| Docket Number | No. CIV 20-0435 JB/CG,CIV 20-0435 JB/CG |
| Parties | Jeff HOOGERHUIS, Plaintiff, v. Dr. BIRNBAUM; Dr. Castrajon; Dr. Boynton; R.N. Pleasant; M. Ortega ; Jane Doe 1; Jane Doe 2; John Doe; M. Valiriano and E. Franco, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Jeff Hoogerhuis, Hobbs, New Mexico, Plaintiff pro se.
Alfred A. Park, Taylor M. Lueras, Park & Associates, LLC, Albuquerque, New Mexico, Attorneys for the Defendant Karen Pleasant.
April D. White, Yenson, Allen & Wosick, P.C., Albuquerque, New Mexico, Attorneys for the Defendant M. Valiriano.
THIS MATTER comes before the Court on (i) Plaintiff Jeff Hoogerhuis’ Complaint (Tort), filed May 6, 2020 (Doc. 1-1)("Complaint"), under 28 U.S.C. § 1915A ; and (ii) Defendant Karen Pleasant's Motion to Dismiss for Failure to State a Claim on Which Relief can be Granted, filed May 13, 2020 (Doc. 5)("MTD"). The Court concludes that it will: (i) dismiss the Complaint without prejudice for failure to state a claim upon which relief can be granted; (ii) grant in part and deny it in part the MTD; and (iii) grant Hoogerhuis leave to file an amended complaint within thirty days after this Memorandum Opinion and Order's ("MOO") entry.
Hoogerhuis is a prisoner in the New Mexico Department of Corrections’ custody.
See Complaint ¶ I(3), at 1. Hoogerhuis filed his Complaint in the Fifth Judicial District Court, Lea County, State of New Mexico, on December 10, 2019. See Complaint ¶ I(2), at 1. The Complaint was docketed as Fifth Judicial District cause no. D-506-CV-2019-02041. See Complaint at 1. Pleasant1 removed the case on May 6, 2020, arguing that the "Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1331 as the Complaint alleges claims for violations of federal rights." Notice of Removal at 2, filed May 6, 2020 (Doc. 1). Pleasant states: "Plaintiff's Complaint, as amended, alleges deliberate indifference and violations to his due process rights under the Fourteenth Amendment and the Eighth Amendment to the U.S. Constitution, as well as state court claims." Notice of Removal at 2 (citing the Complaint).
Hoogerhuis alleges that, in late December 2017, he suffered a sinus infection while incarcerated at Lea County Correctional Facility. See Complaint ¶ I(14), at 2. Hoogerhuis alleges that he was examined by Defendant Dr. Birnbaum, a contract prison doctor, and that Hoogerhuis requested that Dr. Birnbaum prescribe antibiotics, but Dr. Birnbaum declined to give him antibiotics. See Complaint ¶ I(15), at 2. Hoogerhuis alleges that his sinus infection turned into Guillain-Barré Syndrome ("GBS").2 Complaint ¶ I(15), at 2.
On January 18, 2017, Hoogerhuis alleges that he went to the prison medical unit complaining of severe pain, muscle weakness, and difficulty swallowing. See Complaint ¶ IV(18), at 5. Hoogerhuis alleges that he saw Pleasant, a Registered Nurse ("RN"), and alleges that she accused him of "malingering." Complaint ¶¶ IV(19-26), at 5-6. On January 20, 2017, Pleasant again saw Hoogerhuis and contacted Defendant Dr. Boynton or Defendant Dr. Castrajon, who ordered Hoogerhuis to be admitted to the prison medical unit. See Complaint ¶¶ IV(15-28), at 6-7. On January 23, 2017, Hoogerhuis saw Dr. Castrajon, who ordered that Hoogerhuis be taken to the local hospital. See Complaint ¶ IV(35), at 8. Later that same day, Hoogerhuis was flown from the Lea County hospital in Hobbs, New Mexico, to Presbyterian Hospital in Albuquerque, New Mexico. See Complaint ¶ IV(36), at 8. On February 3, 2017, Hoogerhuis was taken from Presbyterian Hospital to the long-term care facility at Central New Mexico Correctional Facility. See Complaint ¶ IV(38), at 8. On March 3, 2017, Hoogerhuis was returned to Lea County Correctional Facility. See Complaint ¶ IV(39), at 9.
Hoogerhuis further alleges that, after his return to Lea County Correctional Facility, Defendant Health Services Administrator Mr. Ortega refused to provide him with diabetic orthopedic shoes despite his feet swelling and his regular shoes causing him pain. See Complaint ¶ IV(42), at 9. Hoogerhuis filed an informal complaint followed by a second grievance, both of which Defendant Grievance Officer Valiriano denied. See Complaint ¶¶ IV(43-45), at 9-10. Hoogerhuis appealed the denials to the New Mexico Department of Corrections and Defendant Director of Adult Prisons Mr. Franco denied his appeal. See Complaint ¶¶ IV(43-45), at 9-10.
In his Complaint, Hoogerhuis asserts one claim: "Deliberate indifference to serious medical needs which denied Plaintiff adequate medical care under the Eighth Amendment, U.S. Constitution." Complaint ¶¶ I(1), at 1. Hoogerhuis seeks: (i) a declaratory judgment that the Defendants’ actions constitute deliberate indifference and violate the Eighth Amendment; (ii) injunctive relief that the Defendants provide Hoogerhuis with a proper evaluation of his medical condition and treatment for GBS including diabetic orthopedic shoes; (iii) compensatory damages in the amount of $400,000.00; and (iv) and punitive damages in the amount of $350,000.00. See Complaint ¶ V(48-54), at 11-12.
Following removal to this Court, Pleasant filed her MTD. See MTD at 1. Pleasant argues that Hoogerhuis’ allegations are insufficient to state an Eighth Amendment claim for relief. See MTD at 7-10. Pleasant asks the Court to dismiss the claims against her, with prejudice. See MTD at 10.
A court has the discretion to dismiss a complaint sua sponte for failure to state a claim upon which relief may be granted under rule 12(b)(6). See Fed. R. Civ. P. 12(b)(6). Under rule 12(b)(6), the court must accept all well-pled factual allegations, but not conclusory, unsupported allegations, and may not consider matters outside the pleading. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Twombly"); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989). The court may dismiss a complaint under rule 12(b)(6) for failure to state a claim if "it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney v. Oklahoma Dep't of Human Services, 925 F.2d 363, 365 (10th Cir. 1991) ). A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A claim should be dismissed where it is legally or factually insufficient to state a plausible claim for relief. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
In reviewing a pro se complaint, the court liberally construes the factual allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff's pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff must abide by the applicable rules of court. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). The Court is not obligated to craft legal theories for the plaintiff or to supply factual allegations to support the plaintiff's claims. Nor may the Court assume the role of advocate for the pro se litigant. See Hall v. Bellmon, 935 F.2d at 1110.
In deciding whether to dismiss the complaint, in whole or in part, the Court is to consider whether to allow plaintiff an opportunity to amend the complaint. See Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). Pro se plaintiffs should be given a reasonable opportunity to remedy defects in their pleadings. See Reynoldson v. Shillinger, 907 F.2d at 126. The opportunity to amend should be granted unless amendment would be futile. See Hall v. Bellmon, 935 F.2d at 1109. An amendment is futile if the amended claims would also be subject to immediate dismissal under the rule 12(b)(6) standards. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004).
Section 1983 is the exclusive vehicle for vindication of substantive rights under the U.S. Constitution. See Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) ; Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (); Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006). Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ....
42 U.S.C. § 1983.
A state is not a "person" within the meaning of 42 U.S.C. § 1983, and, therefore, there is no remedy against states under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 63-64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Section 1983 is a "remedial vehicle for raising claims based on the violation of constitutional rights." Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016) (quotation marks omitted). It does not abrogate the states’ sovereign immunity, and the states, their agencies, and their officials who are sued solely in their official capacity do not qualify as "persons" under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. at 67, 71, 109 S.Ct. 2304.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must assert acts by government officials acting under color of law that result in a deprivation of rights which the Constitution of the United States secures. See 42 U.S.C. § 1983 ; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). There must be a connection between official conduct and...
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