Case No. CIV-17-428-HE
REPORT AND RECOMMENDATION
Plaintiff Leonardo René Brown, appearing pro se and proceeding in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights against six Defendants. See Second Am. Compl. (Doc. No. 27). Chief United States District Judge Joe Heaton has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636. The undersigned has reviewed the Second Amended Complaint and recommends dismissal of all claims against Defendants Michael D. Boothe, Sid Stell, Turnkey Health Center, Dr. William Cooper, and Lela Delozier, as well as dismissal of the official-capacity claims against Defendant Whitney Thompson.
SUMMARY OF THE PLEADING
Plaintiff's claims arise from events alleged to have occurred while he was housed at what he labels the "Shawnee Public Safety Center" (officially known as the Pottawatomie County Public Safety Center ("PCPSC")). See id. at 5. Plaintiff's Second Amended Complaint, the controlling pleading, names six defendants: Nurse Whitney Thompson, Dr. William Cooper, Nurse Lela Delozier, Turnkey Health Center ("Turn Key Health"), Pottawatomie County Sheriff Michael D. Boothe, and PCPSC Director Sid Stell. See id. at 1, 4-5. The individual Defendants are sued in both their individual and official capacities. See id. at 4-5.
See Pottawatomie County Public Safety Center (2013), http://www.pcpsct.org/.
Plaintiff alleges that these Defendants violated his rights under the Eighth Amendment by failing to provide proper medical treatment after discovering that Plaintiff's blood pressure was "dangerously low." Id. at 5, 8-10. Specifically, Plaintiff contends that in the Spring of 2016 Defendant Thompson discovered Plaintiff in distress and took his blood pressure. See id. at 5, 8. After finding that Plaintiff's blood pressure was 68/30, Defendant Thompson told Plaintiff that she would "make a phone call to find out what she should do." Id. at 8. Plaintiff contends that Defendant Thompson did not make the phone call or otherwise inform a doctor or other medical personnel of Plaintiff's low blood pressure. See id. Plaintiff alleges that he was incapacitated by his condition and lay on the floor for nine hours, until Nurse Lane found Plaintiff on the floor, measured his blood pressure, and walked him to the nurse's station. See id. at 8-9. According to Plaintiff, Nurse Lane consulted Defendant Cooper, who told Nurse Lane to give Plaintiff water and to monitor him. See id. at 9. Plaintiff also alleges that he was beaten by other inmates while incapacitated on the floor. See id. at 10.
Plaintiff states that "[w]hile he was laying there, not being able to defend himself due to his low blood pressure, he was beaten up by other inmates. Staff knew about it but did nothing." Second Am. Compl. at 10. Plaintiff, however, does not specify any staff member as one who knew of but failed to protect Plaintiff from the alleged assault and, more pointedly, does not allege that any named Defendant was such a staff member. Accordingly, the undersigned does not construe the Second Amended Complaint as asserting an Eighth Amendment failure-to-protect claim.
Plaintiff claims a variety of physical and mental conditions arose after this incident, including: "[r]ight femoral head avascular necrosis with mild flattening/subchondral collapse of the superior medial aspect of the right femoral head"; "mild tendin[o]pathy of the right gluteus minimus and medius tendons"; "trace fluid in the bilateral trachantene bursa . . . with mild associated soft tissue edema"; "intrasubstance signal in the anterior superior acetabulum"; "mild tricompartmental osteophytic spurring" of bone marrow; "cystic reactive changes of the lateral femoral condyle of the femoral attachment of the ACL with adjacent mild marrow edema"; "diminutive body and posterior horn of the medial meniscus"; "degeneration of the ACL and mild tricompartmental chondromalacia and degenerative changes"; schizophrenia; and posttraumatic stress disorder. Id. at 6-7, 10. Plaintiff states, "It is more likely than not that these chronic ailments occurred from lying on the virtual floor altogether for some fifteen (15) hours until Plaintiff's blood pressure increased slowly and he was finally able to ambulate with assistance." Id. at 7.
The 15 hours alleged in this portion of the Second Amended Complaint differs from the nine hours alleged elsewhere in that pleading. See Second Am. Compl. at 5, 8, 9. --------
Plaintiff seeks monetary damages from each Defendant. See id. at 11-12.
The Court is obligated to conduct an initial review of a prisoner's pleading to identify its cognizable claims and to dismiss the pleading, or any portion thereof, that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1); Doc. No. 5 (Order granting Plaintiff leave to proceed in forma pauperis); see also 28 U.S.C. § 1915A(b). A pro se litigant's complaint must be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). The broad construction accorded to the complaint does not, however, "relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A complaint fails to state a claim upon 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)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). In evaluating whether a plaintiff has stated a valid claim, 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). Bare legal conclusions in a complaint are not entitled to the assumption of truth; "they must be supported by factual allegations" to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A. Plaintiff's Claims Against Defendant Turn Key Health
Liberally construed, Plaintiff alleges that Defendant Turn Key Health is a private healthcare entity that contracted with PCPSC to provide medical services. See Second Am. Compl. at 5. While a private entity acting under color of state law may be a proper defendant to a § 1983 claim, the entity "'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) (omission in original) (quoting Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978)). Rather, as with municipal governments, the liability of a private entity requires a showing of: (1) the existence of an official policy or custom by which the plaintiff was denied a constitutional right, (2) that the policy or custom was the moving force behind the constitutional deprivation, and (3) that the policy or custom "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, 769-70 (10th Cir. 2013); see Dubbs, 336 F.3d at 1216 (noting that the Tenth Circuit has extended Monell's municipal-liability doctrine "to private § 1983 defendants").
To meet the last of these three elements, a plaintiff must demonstrate that the entity had "actual or constructive notice that its action or failure [was] substantially certain to result in a constitutional violation, and it consciously and deliberately [chose] to disregard the risk of harm." Schneider, 717 F.3d at 771 (internal quotation marks omitted). The facts alleged by Plaintiff are not sufficient to plausibly support such conduct. Plaintiff alleges that PCPSC and Turn Key Health had "custom[s] to save money," stating that "the nursing staff has no training . . . and Dr. Cooper lacked the training" and "the will (deliberate indifference)" "to take charge and send Plaintiff to the hospital for proper care." Second Am. Compl. at 9-11. Plaintiff alleges no facts, however, from which an inference could be drawn that Turn Key Health had actual or constructive notice that any policy or practice was substantially certain to cause a failure in medical care by its employees. Indeed, aside from the conclusory statements quoted above, Plaintiff does not allege any practice of unconstitutional conduct but focuses on a single incident: the treatment of Plaintiff over, at most, 15 hours.
A single incident of constitutionally deficient action or inaction is rarely sufficient to impose liability under Monell. See Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Only in a "narrow range of circumstances" can deliberate indifference be found "absent a pattern of unconstitutional behavior," such as a failure to train employees "in specific skills needed to handle recurring situations." Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998) (internal quotation marks omitted). The violation of federal rights must be "a highly predictable or plainly obvious consequence" of the entity's "action or inaction." Id. at 1308 (internal quotation marks omitted). Here, Plaintiff alleges no facts suggesting that this case falls within the limited subset in which a single incident is sufficient to establish deliberate indifference. See id. at 1307; Tuttle, 471 U.S. at 823-24. In fact, Plaintiff's statements regarding the prompt medical attention provided to him by Nurse Lane and Defendant Cooper undermine the suggestion that the alleged misconduct of Defendant Thompson was the result of a larger pattern of conduct or a policy of inadequate training. See Second Am. Compl. at 8-9.
B. Plaintiff's Official-Capacity Claims Against Defendants Boothe and Stell
Plaintiff's official-capacity claims against Defendants Boothe and Stell—alleged Pottawatomie County officials—are, in effect, claims against Pottawatomie County. See Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015) (holding that a suit against a county employee in his or her official capacity is "the equivalent of a suit against [the] County" (internal quotation marks omitted)). As such, they are subject to the same standards as those articulated above. See Schneider, 717 F.3d at 769-70 (explaining that municipal liability requires a showing of an official policy or custom that was the moving force behind the constitutional injury and deliberate indifference as to the policy's known or obvious consequences); see also id at 773-74 (addressing failure-to-train claims as basis for municipal liability); Winters v. Bd. of Cty. Comm'rs, 4 F.3d 848, 855 (10th Cir. 1993) (citing Monell, 436 U.S. at 694).
As noted above, Plaintiff's conclusory allegation that PCPSC and Turn Key Health had a custom of inadequately training medical personnel in order to save money is insufficient to establish liability against Pottawatomie County under Monell. The prompt medical attention provided by Nurse Lane and Defendant Cooper undercuts Plaintiff's suggestion that such a policy exists or that it resulted in a pattern of unconstitutional behavior sufficient to give actual or constructive notice to the county that the policy was "substantially certain to cause a constitutional violation." Schneider, 717 F.3d at 770-71; see Second Am. Compl. at 8-9. Nor do Plaintiff's allegations show that "the need for more or different training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights," that deliberate indifference may be found even absent a pattern of unconstitutional behavior. Schneider, 717 F.3d at 771, 773; Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 405 (1997) ("[R]igorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee."); Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").
Plaintiff's official-capacity claims against Defendants Boothe and Stell should be dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); 42 U.S.C. § 1997e(c)(1).
C. Plaintiff's Official-Capacity Claims Against Defendants Cooper, Delozier, and Thompson
As alleged employees of Turn Key Health, a private entity, Defendants Cooper, Delozier, and Thompson are "not state officials, and official capacity claims cannot be asserted against them." AlAmiin v. Patton, No. CIV-13-1001-F, 2016 WL 7217857, at *6 n.6 (W.D. Okla. Dec. 13, 2016) (citing Jones v. Barry, 33 F. App'x 967, 971 n.5 (10th Cir. 2002)). Plaintiff's official-capacity claims against these individuals should be dismissed without prejudice for failure to state a claim upon which relief may be granted. See id.; 28 U.S.C. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1).
D. Plaintiff's Individual-Capacity Claims Against Defendant Stell
In his designation of defendants, Plaintiff identifies Defendant Stell as the Director of PCPSC. See Second Am. Compl. at 4. However, Plaintiff alleges no actions taken by Defendant Stell. See id. at 5, 6-11.
To state a claim for relief under 42 U.S.C. § 1983, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). It is not sufficient to establish only that a federal right was violated. The plaintiff must allege facts to plausibly establish a causal connection between an alleged violation of a federal right and each defendant. See Iqbal, 556 U.S. at 676; Pahls v. Thomas, 718 F.3d 1210, 1225-26, 1228 (10th Cir. 2013).
Pemberton v. Patton, No. CIV-14-129-D, 2015 WL 1638638, at *14 (W.D. Okla. Apr. 13, 2015) (citation omitted), aff'd, 639 F. App'x 532 (10th Cir. 2016).
Here, Plaintiff has not stated factual allegations showing that Defendant Stell is "causally connected to any deprivation of a federal right," as this Defendant is "essentially ignored" in the Second Amended Complaint. Id. Plaintiff's claims as to Defendant Stell in his individual capacity should be dismissed without prejudice for failure to state a claim upon which relief may be granted. See id.; Iqbal, 556 U.S. at 678-79; 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); 42 U.S.C. § 1997e(c)(1).
E. Plaintiff's Individual-Capacity Claims Against Defendants Thompson and Cooper
As detailed above, Plaintiff contends that Defendant Thompson (a nurse) discovered that Plaintiff had a blood pressure level of 68/30 and, despite stating she would call someone, did not inform a doctor or other medical personnel of Plaintiff's low blood pressure; that Plaintiff then lay on the floor for nine hours until Nurse Lane found Plaintiff, measured his blood pressure, took him to the nurse's station, and consulted Defendant Cooper (a physician); and that Defendant Cooper told Nurse Lane to give Plaintiff water and to monitor him. See Second Am. Compl. at 9-10.
"A prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing Estelle, 429 U.S. at 104). Two separate prongs—one objective and the other subjective—are required to establish a claim of deliberate indifference to serious medical needs. Id. To establish the objective prong, a plaintiff must show "that the deprivation at issue was in fact 'sufficiently serious.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The Tenth Circuit has explained that
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. Where the necessity for treatment would not be obvious to a lay person, the medical judgment of the physician, even if grossly negligent, is not subject to second-guessing in the guise of an Eighth Amendment claim.
Id. (citation and internal quotation marks omitted). To establish the subjective prong, a plaintiff must show that the prison official in question acted with a "culpable state of mind." Id. at 751; see Farmer, 511 U.S. at 834, 836, 837. "The subjective component is satisfied if the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and she must also draw the inference." Mata, 427 F.3d at 751 (alteration and internal quotation marks omitted).
1. Defendant Thompson
With respect to the objective component, the Tenth Circuit has explained that "it is the harm claimed by the prisoner that must be sufficiently serious to satisfy the objective component, and not solely 'the symptoms presented at the time the prison employee has contact with the prisoner.'" Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Mata, 427 F.3d at 753). Plaintiff's allegation that, as a consequence of receiving inadequate medical care, he now suffers from schizophrenia and posttraumatic stress disorder and is taking prescribed medications for both, plausibly shows that Plaintiff's medical condition is sufficiently serious to satisfy the objective prong. See Second. Am. Compl. at 10; Mata, 427 F.3d at 751 (explaining that a medical need is sufficiently serious if it has been "diagnosed by a physician as mandating treatment"). Plaintiff also claims that a physician identified multiple physical conditions related to Plaintiff's bone marrow and tendons, and Plaintiff attributes these conditions to the alleged delay in medical care. See Second Am. Compl. at 6-7. He claims to now be in "constant pain in his shoulders, hips, knees and throughout all of his joints." Id. at 12; see Mata, 427 F.3d at 753-55 (finding objective prong was satisfied where the plaintiff alleged delay in medical care caused her to suffer "both unnecessary pain and a worsening in her condition"). Though the causal relationship between the alleged incident and the alleged harms appears unlikely, Plaintiff has plausibly pled harms sufficiently serious to satisfy the objective component of an Eight Amendment claim. See Bell Atl. Corp., 550 U.S. at 556 ("[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." (internal quotation marks omitted)).
Moreover, Plaintiff's allegation that Defendant Thompson was a nurse who "found Plaintiff in distress" and displaying low blood pressure, but over the next nine or 15 hours knowingly failed to provide treatment to Plaintiff or refer him to another medical professional, is sufficient to plausibly show that Defendant Thompson "failed to act" despite her knowledge "that a substantial risk of serious harm exist[ed]." Mata, 427 F.3d at 751, 752 (internal quotation marks omitted); see Second Am. Compl. at 5, 8-9.
Plaintiff has therefore plausibly pled both components of an Eighth Amendment claim against Defendant Thompson in her individual capacity. This claim should proceed.
2. Defendant Cooper
Plaintiff fails, however, to allege facts that would satisfy the subjective prong with respect to Defendant Cooper—i.e., facts that plausibly show that Defendant Cooper knew of and disregarded an excessive risk to Plaintiff's health. Plaintiff does not allege that Defendant Cooper knew of and failed to treat Plaintiff while Plaintiff was incapacitated; rather, Plaintiff states that, after being contacted by Nurse Lane and informed of Plaintiff's condition, Defendant Cooper immediately gave the nurse instructions regarding Plaintiff's care. See Second Am. Compl. at 9. Plaintiff's primary criticism of Defendant Cooper, then, is to the instructions given. Plaintiff contends that rather than instructing Nurse Lane to "simply. . . give Plaintiff water and watch him," the doctor should have told the nurse "to elevate Plaintiff's feet above his head to prevent oxygen deprivation to his brain." Id. at 9.
Even if Defendant Cooper's instruction was unreasonable, "a failure to exercise reasonable professional judgment does not a constitutional violation make." Clark v. Colbert, No. 17-7046, ___ F.3d ___, 2018 WL 3431971, at *9 (10th Cir. Jul. 17, 2018); see Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) ("[T]he subjective component is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his considered medical judgment."); cf. Estelle, 429 U.S. at 106 ("[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."). Relatedly, the Tenth Circuit has long held that "a mere difference of opinion between the prison's medical staff and the inmate as to the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment." Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980). Plaintiff's only allegation against Defendant Cooper regards a matter of medical judgment, and such an allegation, without more, does not establish deliberate indifference. See Self, 439 F.3d at 1232-33; Estelle, 429 U.S. at 105-07. And Plaintiff's conclusion that Defendant Cooper "lacked the training" and "the will" "to take charge and send Plaintiff to the hospital for proper care" is not supported by any well-pleaded factual allegations and thus does not "raise a right to relief above the speculative level." Bell Atl. Corp., 550 U.S. at 555.
Plaintiff's individual-capacity claim against Defendant Cooper should, therefore, be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 42 U.S.C. § 1997e(c)(1) for failure to state a claim upon which relief may be granted.
F. Plaintiff's Individual-Capacity Claims Against Defendants Boothe and Delozier
Plaintiff's assertions of wrongdoing against Defendants Boothe and Delozier are not sufficient to plausibly plead a violation of the Eighth Amendment. Plaintiff references these defendants only once in his Second Amended Complaint:
Defendants Booth[e] (Sheriff) and Delozier (Head Nurse), were both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that Defendants drew the inference. This is especially so since it was these Defendants who were inflicting the pain and obvious suffering on the part of this Plaintiff.
Here, Defendants were both subjectively and objectively cruel to Plaintiff while he stayed at [PCPSC].
Second Am. Compl. at 7-8 (citation omitted). Plaintiff does not state how Defendants Boothe and Delozier were "cruel" to him or inflicted pain upon him. Nor does he state how these Defendants became "aware of facts" suggesting a substantial risk of harm to Plaintiff, or what, specifically, those facts were. Id. at 7.
Such bare legal conclusions are not entitled to the assumption of truth. See Iqbal, 556 U.S. at 679. "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp., 550 U.S. at 555 (alteration omitted). Plaintiff presents no factual allegations to show that either of these Defendants is causally connected to any deprivation of a federal right and thus cannot show that either Defendant is liable under § 1983. See Iqbal, 556 U.S. at 678-79; Pahls, 718 F.3d at 1225-26 ("When various officials have taken different actions with respect to a plaintiff, the plaintiff's facile, passive-voice showing that his rights 'were violated' will not suffice."). Accordingly, Plaintiff's claims against Defendant Boothe and Delozier in their individual capacities should be dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1).
Accordingly, the undersigned recommends that all claims of Plaintiff's Second Amended Complaint (Doc. No. 27) against Defendants Boothe, Stell, Delozier, Cooper, and Turnkey Health Center, as well as Plaintiff's official-capacity claim against Defendant Thompson, be dismissed without prejudice for failure to state a claim upon which relief may be granted. Plaintiff's individual-capacity Eighth Amendment claim against Defendant Thompson, however, should be permitted to proceed.
NOTICE OF RIGHT TO OBJECT
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by August 21, 2018, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the present case.
ENTERED this 31st day of July, 2018.
CHARLES B. GOODWIN
UNITED STATES MAGISTRATE JUDGE