Luttrell v. Grote
| Decision Date | 08 December 2011 |
| Docket Number | No. 10-3137-KHV,10-3137-KHV |
| Parties | CHARLES LUTTRELL, Plaintiff, v. DR. STEWART GROTE, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiff, a former pretrial detainee and inmate at the Corrections Corporation of America ("CCA") facility in Leavenworth, Kansas, brings suit against John and Jane Doe defendants, the Managing Director of Facility Operations at CCA, the Regional Medical Director at CCA, Warden Shelton Richardson, Mindy Graham (CCA Health Services Administrator), Dr. Stewart Grote, Dr. Linda McCandless, Nurse Amanda LNU, Nurse Katy LNU and Nurse Thelma LNU.1 In his amended complaint, plaintiff asserts that by denying him adequate medical care, defendants violated his right to due process under the Fifth Amendment and his right to be free from cruel and unusual punishment under the Eighth Amendment.2 See Amended Complaint (Doc. #5) filed July 28, 2010. Liberally construed, plaintiff seeks damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. §§ 1981, 1983, 1985 and 1986.On January 14, 2011, the Court dismissed the John and Jane Doe defendants, the Managing Director of Facility Operations at CCA, the Regional Medical Director at CCA, Warden Shelton Richardson and Mindy Graham (CCA Health Services Administrator). See Order (Doc. #13) (Crow, J.). This matter is before the Court on the Motion To Dismiss Of Defendants Corrections Corporation Of America (CCA), Dr. Grote, Dr. McCandless, et al. (Doc. #28) filed April 5, 2011, which the Court considers only as to Dr. Grote, Dr. McCandless, Nurse Amanda LNU, Nurse Katy LNU and Nurse Thelma LNU,3 and plaintiff's Motion For Leave To Amend, Add Defendants, Causes Of Action And Change The Caption (Doc. #33) filed April 27, 2011. For reasons stated below, the Court sustains defendants' motion to dismiss and overrules plaintiff's motion to amend.
In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible - and not merely conceivable - on its face. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The specific allegations in the complaint must plausibly support a legal claim for relief. Kay v.Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). Rather than deciding whether a claim is "improbable," the Court determines whether the factual allegations in the complaint sufficiently raise a right to relief above the speculative level. See id. (quoting Twombly, 550 U.S. at 556). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 129 S. Ct. at 1950.
The Court need not accept as true those allegations which state only legal conclusions. See id. Plaintiff bears the burden to frame his complaint with enough factual matter to suggest that he is entitled to relief; it is not enough for him to make threadbare recitals of a cause of action accompanied by mere conclusory statements. Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim when he pleads factual content from which the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949. Plaintiff must show more than a sheer possibility that defendants have acted unlawfully - it is not enough to plead facts that are "merely consistent with" defendants' liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Id. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged - but not "shown" - that the pleader is entitled to relief. Id. at 1950. Finally, the degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2) depends upon the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
Because plaintiff proceeds pro se, the Court construes his complaint liberally and holds it to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d1106, 1110 (10th Cir. 1991). The Court does not, however, assume the role of advocate for a pro se litigant. See id.
The First Amended Complaint (Doc. #5) alleges the following facts:4
On February 12, 2010, plaintiff arrived at the CCA facility in Leavenworth, Kansas. Upon plaintiff's arrival and pursuant to CCA policy, three nurses (Amanda, Katy and Thelma) destroyed plaintiff's medications. As a result, plaintiff went several days without prescribed medications for pain, depression, anxiety, bipolar disorder and attention deficit disorder ("ADD").
Four days after his arrival, on February 16, 2010, Dr. Grote examined plaintiff and prescribed certain medications. On February 20, 2010, Dr. McCandless examined plaintiff and prescribed certain medications.5 For some undefined period of time, the Managing Director of Facility Operations at CCA, the Regional Medical Director at CCA, Warden Richardson and Mindy Graham denied plaintiff the medications prescribed by Drs. Grote and McCandless.
On March 4, 2010, plaintiff transferred to a Bureau of Prisons ("BOP") facility in Fort Worth, Texas. On April 22, 2010, plaintiff returned to the CCA facility in Leavenworth. From April 22 to May 1, 2010, the Managing Director of Facility Operations at CCA, the Regional Medical Directorat CCA, Warden Richardson, Mindy Graham, Dr. Grote and Dr. McCandless "facilitated" the denial of plaintiff's medications. First Amended Complaint (Doc. #5) ¶ 12. From April 26 to June 3, 2010, all defendants except Dr. McCandless denied plaintiff prescribed anxiety medications.
On May 1, 2010, Dr. McCandless re-ordered plaintiff's medications. That day, Dr. Grote also operated on plaintiff's leg to remove a tumor. On May 4, 2010, Dr. Grote drained a large amount of clotted blood from plaintiff's leg after he noted that plaintiff's leg was swollen and his wound had re-opened. On May 5, 2010, nurse Katy gave plaintiff the wrong medication. From May 5 through 11, 2010, plaintiff could not get clean bandages for his leg wound. As a result, plaintiff acquired a severe staph infection, Methicillin-resistant Staphylococcus aureus (MRSA). On May 11, 2010, nurse Thelma gave plaintiff the wrong dosage of Benadryl. On May 13, 2010, nurse Amanda did not enter correct orders in plaintiff's medical file.
From July 18 to 23, 2010, plaintiff did not receive prescribed pain medications.
Plaintiff asserts claims for denial of adequate medical care against Dr. Grote, Dr. McCandless, Nurse Amanda LNU, Nurse Katy LNU and Nurse Thelma LNU.6
Plaintiff asserts claims under multiple civil rights statutes, 42 U.S.C. § 1981, 1983, 1985 and 1986, but he has not alleged a factual basis for any such claims. First, plaintiff asserts a claim underSection 1981,7 which requires that plaintiff allege that because of race, defendants deprived him of one of four protected interests: (1) the right to make and enforce contracts; (2) the right to sue, be a party and give evidence; (3) the right to the full and equal benefit of the laws; and (4) the right to be subjected to the same "pains and punishments" as white persons. Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989). Because the amended complaint has not alleged plaintiff's race, he cannot state a claim under Section 1981.
To recover on a claim under Section 1983,8 plaintiff must prove that defendants deprived him of a constitutional right and that they acted under color of state law in doing so. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970); see Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (). Plaintiff has not alleged that defendants represented the state in anycapacity.9 Accordingly, he has not stated a claim under Section 1983.
Plaintiff asserts a civil conspiracy claim under 42 U.S.C. § 1985(3), which prohibits conspiracies that are (1) motivated by racial or other class-based discriminatory animus and (2) aimed at rights protected against public and private interference. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993), cert. denied, 510 U.S. 1093 (1994). Because plaintiff has not alleged that he belongs to a protected class, he cannot maintain a civil conspiracy claim under Section 1985. Accordingly, the Court dismisses plaintiff's claims to the extent they are brought under 42 U.S.C. § 1985(3).
Plaintiff also asserts a claim under Section 1986, which provides as follows:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented.
42 U.S.C. § 1986. To bring a Section 1986 claim, plaintiff must first show a conspiracy in violation of Section 1985(3). Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir. 1990). Becauseplaintiff has not stated a claim under Section 1985(3), he likewise has...
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