Opinion
CIVIL ACTION No. 04-2083-GTV
June 1, 2004
MEMORANDUM AND ORDER
Plaintiff Benny Canady brings this action against Defendants Roger Werholtz, Secretary of the Kansas Department of Corrections, State of Kansas, Prison Health Services, Inc., and unknown and unidentified employees of the State of Kansas and Prison Health Services, Inc., seeking damages under 42 U.S.C. § 1983 and under pendent state claims of negligence. Specifically, Plaintiff alleges that Defendants Roger Werholtz, State of Kansas, and unknown and unidentified employees of the State of Kansas acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Plaintiff also contends that all Defendants provided negligent treatment and diagnosis for his medical condition. This action is before the court on Defendants Roger Werholtz and State of Kansas's ("Defendants") motion to dismiss (Doc. 3). For the following reasons, Defendants' motion is granted in part and denied in part.
I. FACTUAL BACKGROUND
The following facts are taken from the allegations in Plaintiffs complaint. In September 2001, Plaintiff was incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas. At some point during his imprisonment, Plaintiff began experiencing severe back and leg pain and sought treatment from a medical professional at the prison. The examiner conducted a range of motion test and informed him that he had a bulging disc in his back.In the Fall of 2001, prison officials transferred Plaintiff to the Norton Correctional Facility ("NCF") in Norton, Kansas. While at NCF, Plaintiff contends that: he was forced to walk and climb stairs, causing him great pain; he was compelled to work in the cafeteria as other healthy prisoners were; and he was disciplined several times, including being placed in solitary confinement, for collapsing and not performing his job duties due to his back and leg pain. Plaintiff claims that he sought medical attention at NCF, but was told that nothing was wrong with him.
Prison officials eventually transferred Plaintiff to the Lansing Correctional Facility ("LCF") in Lansing, Kansas. During this period, Plaintiff alleges that he was placed in solitary confinement because of his inability to work and that he was denied proper medical care and treatment from the prison's health clinic.
On March 4, 2002 Plaintiff was released from LCF. Still suffering from back and leg pain, Plaintiff obtained a medical examination from the Veterans Administration Hospital. Medical professionals at the hospital found a cancerous growth in stage four located in Plaintiff's back and spine.
II. STANDARD OF REVIEW
Defendants move to dismiss Plaintiff's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In their motion to dismiss, Defendants argue that: (1) this court lacks subject matter jurisdiction because Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (" PLRA"); (2) Plaintiffs complaint fails to state a viable § 1983 claim under the Eighth Amendment; (3) the Eleventh Amendment deprives this court of subject matter jurisdiction concerning Plaintiff's § 1983 claims against Defendants State of Kansas and Roger Werholtz in his official capacity; and (4) Plaintiffs complaint fails to state a § 1983 claim against Defendant Werholtz in his individual capacity because § 1983 liability requires personal participation.A. Rule 12(b)(1)
Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citation omitted). A court reviewing a facial challenge must accept the plaintiffs factual allegations regarding jurisdiction as true. Id at 1002. In contrast, a court reviewing a factual attack may not presume that the plaintiff's allegations are true. Id.
Initially, the court observes that Defendants improperly argue that this court is deprived of subject matter jurisdiction under Rule 12(b)(1) because Plaintiff failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a) of the PLRA. In Steele v. Federal Bureau of Prisons, the Tenth Circuit held that because § 1997e(a) is not jurisdictional, "a motion under Fed. R Civ. P. 12(b)(1) is not an appropriate avenue for questioning an inmate's exhaustion of administrative remedies." 355 F.3d 1204, 1208-09 (10th Cir. 2003). The Tenth Circuit further concluded that in most instances, "[t]he proper procedural mechanism for such a dispositive motion" is a motion to dismiss under Rule 12(b)(6). Id. at 1212. Accordingly, the court will consider Defendants' exhaustion argument under the Rule 12(b)(6) standard. Deiendants' Eleventh Amendment immunity defense is a facial attack on the allegations of subject matter jurisdiction contained in Plaintiffs complaint. Accordingly, under Rule 12(b)(1), the court will accept the allegations in Plaintiffs complaint as true. See Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
B. Rule 12(b)(6)
A rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling him to relief under his theory of recovery. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984) (citation omitted). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. Id. (citation omitted). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L.Ed.2d 90, 94 S.Ct. 1683 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982).
IV. DISCUSSION A. Exhaustion of Administrative Remedies
Defendants first contend that Plaintiffs claims are barred for failure to exhaust administrative remedies under § 1997e(a) of the PLRA. That section provides, in pertinent part, that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). The statute defines a "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h).Defendants acknowledge that at the time Plaintiff filed the present action, he was no longer confined in a correctional facility. Defendants also concede that courts in other circuits have concluded that the provisions of the PLRA do not apply to former prisoners. Despite the existence of authority contrary to their position, Defendants maintain that the United States Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002), "strongly suggests" that the PLRA's exhaustion requirement should apply to a former prisoner's claims that arose during incarceration. The court disagrees.
Defendants' brief correctly points out that the Tenth Circuit has yet to consider whether the PLRA's exhaustion requirement applies to the claims of former prisoners. The court's research reveals that the Second and Ninth Circuits, and one judge in this district, have specifically addressed the issue and determined that § 1997e(a)'s exhaustion requirement does not apply to former prisoners. See Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000) (stating that "only individuals who, at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentenced for criminal offenses are `prisoners'"); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (holding that "litigants . . . who file prison condition actions after release from confinement are no longer `prisoners' for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this provision");Smith v. Bd. of County Comm'rs of the County of Lyon, No. 01-4018-SAC, 2002 WL 31928433, at *1 (D. Kan. Nov. 5, 2002) (concluding "that the PLRA's exhaustion requirement is inapplicable to suits brought by one who is not incarcerated at the time suit is filed"); but see Morgan v. Maricopa County, 259 F. Supp.2d 985, 992 (D. Ariz. 2003) ("Interpreting the PLRA as inapplicable to former prisoner's claims which arose during the prisoner's incarceration if a prisoner waits to file suit . . . would nullify Congress' intent in passing the PLRA.").
The court also observes that several courts of appeals have determined that other provisions of the PLRA do not apply to former prisoners. See e.g., Harris v. Garner, 216 F.3d 970, 979-80, (11th Cir. 2000) (en banc) ("Because section 1997e(e) applies only to claims filed while an inmate is confined, it does not prevent a former prisoner from filing after release a monetary damages claim for mental and emotional injury suffered while confined, without a prior showing of physical injury."); Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998) (holding that the PLRA is inapplicable to former prisoners in the context of § 1997e(d)'s limitation on attorney fees); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (determining that § 1997e(e)'s physical injury requirement does not apply to a released prisoner).
The court finds that Defendants' reliance on Porter is unpersuasive. In Porter, the Supreme Court reversed the Second Circuit's ruling that a state prisoner did not have to exhaust his administrative remedies for an Eighth Amendment excessive force claim. 534 U.S. at 519-20. The Supreme Court held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. at 532 (citation omitted). The court acknowledges that thePorter decision reinforces the PLRA's sound policies requiring exhaustion, but the Supreme Court did not have the opportunity to address the PLRA's application to released prisoners. The plaintiff inPorter was an incarcerated prisoner. See Kritenbrink v. Crawford, No. CV-N-03-0235-ECR (RAM), 2004 WL 826014, at *4 (D. Nev. Apr. 6, 2004) (recognizing the policy reasons requiring exhaustion that were outlined in Booth v. Churner, 532 U.S. 731 (2001) andPorter, but holding that the plain language of the PLRA compels the conclusion that § 1997e(a) does not apply to former prisoners).
Congress enacted the PLRA's exhaustion requirement "to reduce the quantity and improve the quality of prisoner suits." Porter, 534 U.S. at 524. Section 1997e(a) effectuates this purpose by "1) allowing prison officials an opportunity to satisfy the inmate's complaint, thus potentially obviating the need for litigation; 2) filtering out some frivolous claims; and 3) creating an administrative record that facilitates review of cases that are ultimately brought to court." Ross v. County of Bernalillo, No. 02-2337, 2004 WL 902322 (10th Cir. Apr. 28, 2004).
Following the majority of courts to address the issue, the court holds that § 1997e(a)'s exhaustion requirement does not apply to former prisoners, even if the particular claim arose during incarceration. The plain language of the statute indicates that Congress did not intend to apply the exhaustion requirement in these circumstances.
B. Eighth Amendment Deliberate Indifference Claim
Defendants next assert that Plaintiffs Eighth Amendment claim should be dismissed because it is essentially a medical malpractice claim, which is not actionable under § 1983.
"A prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment." Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (citing Estelle v. Gamble, 429 U.S. 97, 102 (1976)). "`Deliberate indifference' involves both an objective and a subjective component." Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002) (citation omitted). "In regard to the objective element, a medical need is considered `sufficiently serious' if the condition `has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (citations omitted). "The subjective component is met if a prison official `knows of and disregards an excessive risk to inmate health or safety.'" Sealock, 218 F.3d at 1209 (citation omitted).
In Estelle v. Gamble, the Supreme Court held that "denying or delaying access to medical care" could constitute deliberate indifference. 429 U.S. at 104. The Court cautioned, however, that not "every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." Id. at 105. The Court went on to explain:
Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment.Id. at 106. Thus, "negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation." Perkins v. Kansas Dep't of Corrs., 165 F.3d 803, 811 (10th Cir. 1999) (citation omitted).
First, the court notes that Plaintiff concedes that his complaint is "replete with allegations of medical malpractice." In his complaint, Plaintiff states that a medical examiner at the El Dorado Correctional Facility diagnosed him with a bulging disc. He also asserts that a medical examiner at the Norton Correctional Facility told him that nothing was wrong with him. As a result of not being evaluated, treated, or diagnosed properly, Plaintiff contends that his cancer worsened and became harder to treat. The court concludes that these allegations do not state a claim of deliberate indifference under the Eighth Amendment. At most, these contentions form a claim of negligent diagnosis or medical malpractice. The court's determination is further bolstered by the fact that Plaintiff, in support his two claims of state law negligence, similarly alleges that Defendants were negligent in the evaluation, treatment and diagnosis of his medical condition. Accordingly, the court dismisses Plaintiffs § 1983 claim to the extent that he alleges Defendants violated the Eighth Amendment as a result their improper evaluation, treatment, or diagnosis of his medical condition.
Plaintiff also argues that his § 1983 claim contains more than mere allegations of medical malpractice. He asks the court to consider his allegations that: (1) upon being transferred to NCF, he was forced to wait three days to see a medical professional; (2) while at NCF, he was disciplined several times after he collapsed due to his leg and back pain; (3) while at NCF, he was put in solitary confinement because he was unable to perform assigned work due to his condition; (4) upon being transferred to LCF, he was put in solitary confinement because he was unable to perform assigned work due to his condition; and (5) while at LCF, he was denied proper medical care because the prison health clinic rejected his requests for treatment several times.
Viewing all reasonable inferences in favor of Plaintiff, the court concludes that his complaint, construed as a whole, does contain allegations sufficient to state a § 1983 claim for delay or denial of medical care.
The court first determines that Plaintiffs assertion that the prison health clinic at LCF repeatedly denied his requests for medical care states a claim under the Eighth Amendment. Plaintiffs ongoing complaints of severe leg and back pain during his incarceration in the state prison system, coupled with his diagnosis of cancer, are sufficiently serious to satisfy the objective component of the deliberate indifference test. Also, from these allegations it could be inferred that the prison health clinic at LCF was aware of Plaintiff's medical ailments and disregarded a substantial risk to his health.
The court believes that Plaintiff's other allegations present a much closer question, but concludes that it would be premature to dismiss them at this time. For instance, the court finds it difficult to determine whether Plaintiff has stated a claim based on his allegations that prison officials at LCF and NCF placed him in solitary confinement because he was unable to perform his job due to his medical condition. Noticeably absent from Plaintiffs complaint are any allegations that prison officials deprived him of medical care while he was placed in solitary confinement. See Sealock, 218 F.3d at 1211 (recognizing that "deliberate indifference occurs when prison officials prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment"). Also, the court is doubtful that Plaintiff's claim that he had to wait three days to see a doctor after being transferred to NCF, standing alone, states a claim for delay of medical care under the Eighth Amendment. See Olson, 9 F.3d at 1477 (quotingMendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) ("`Delay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference which results in substantial harm.'")).
Accordingly, the court dismisses Plaintiffs § 1983 claim to the extent he claims Defendants improperly evaluated or diagnosed his medical condition, but does not dismiss his allegations that Defendants denied or delayed his access to medical care.
C. Eleventh Amendment Immunity
Defendants next argue that Plaintiff's § 1983 claim against the State of Kansas and Roger Werholtz in his official capacity must fail because (1) both Defendants are entitled to Eleventh Amendment immunity; and (2) neither Defendant qualifies as a "person" under § 1983. Plaintiff does not contest Defendants' arguments, and the court agrees that Plaintiff may not maintain a § 1983 claim against these Defendants. See Quern v. Jordan, 440 U.S. 332, 345 (1979) (holding that Congress did not abrogate states' Eleventh Amendment immunity when it enacted § 1983); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either a State nor its officials acting in their official capacities are `persons' under § 1983."); Eastwood v. Dep't of Corrs., 846 F.2d 627, 632 (10th Cir. 1988) (citations omitted) (stating that "immunity under the Eleventh Amendment remains in effect when state officials are sued for damages in their official capacity"). Accordingly, the court grants Defendants' motion to dismiss Plaintiffs § 1983 claim against Defendants State of Kansas and Roger Werholtz in his official capacity.
D. Individual Capacity Claim Against Defendant Werholtz
Finally, Defendants maintain that Plaintiffs § 1983 claim against Defendant Werholtz in his individual capacity should be dismissed because Plaintiff fails to allege the requisite personal participation to hold Defendant Werholtz liable as a supervisor.As a supervisor, Roger Werholtz may be held individually liable under § 1983 only if an "`affirmative link' exists between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993) (citing Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)).
At this time, the court will not dismiss Defendant Werholtz in his individual capacity. Plaintiff admits that he "is without specific knowledge of Defendant Roger Werholtz's individual involvement," but requests the court to allow him to determine through discovery whether Defendant Werholtz prevented him from having access to adequate and meaningful medical care. Defendant Werholtz may renew this argument on a future motion for summary judgment.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' motion to dismiss (Doc. 3) is granted in part and denied in part.
Copies of this order shall be transmitted to counsel of record.