Opinion
CIV-20-957-D
11-05-2021
CHARLES R. STEWART, Plaintiff, v. TURN KEY HEALTH, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff Charles R. Stewart, while a pretrial detainee at the Logan County Detention Center, filed a complaint under 42 U.S.C. § 1983. Doc. 1., Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). Doc. 4. Plaintiff sues Turn Key Health, Logan County Sheriff Damon Devereaux, Assistant Jail Administrator Leandra James, and Lieutenant Matthew Sumner alleging they subjected him to cruel and unusual punishment by denying him access to a dentist. Doc. 1, at 3, 5-6. Before the Court is Defendant Turn Key Health's motion to dismiss for failure to state a claim upon which relief may be granted. Doc. 41. Plaintiff has not responded to the motion even after the Court sua sponte granted him an extension of time to do so. See Doc. 42. The undersigned recommends granting Defendant Turn Key Health's motion to dismiss.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff is now a convicted prisoner housed at the Oklahoma State Reformatory in Granite, Oklahoma. See Doc. 29.
When the non-moving party fails to file a response to a motion to dismiss for failure to state a claim, “the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.” Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003); see Persik v. Manpower Inc., 85 Fed.Appx. 127, 130 (10th Cir. 2003) (where “pro se litigant fail[ed] to comply with local rules requiring a response to a motion to dismiss his complaint, ” the district court satisfied procedural requirements for dismissing the complaint under Rule 12(b)(6) by sufficiently analyzing the reasons the complaint failed to state a claim, and noting plaintiff's failure to respond and deeming it a concession of defendant's arguments after analyzing the issue). The Court may not grant such a motion “merely because [plaintiff] failed to file a response.” Issa, 354 F.3d at 1177 (quoting Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002)) (internal quotation marks omitted); cf. Houck v. Okla. Workers' Comp. Court, 193 Fed.Appx. 772, 773 (10th Cir. 2006) (noting plaintiff's untimely response to motions to dismiss his complaint “was not a sufficient basis for dismissal”).
I. Standard of review.
“To state a claim under § 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). The complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiffs must “nudge[ ] their claims across the line from conceivable to plausible” to survive a motion to dismiss. Bell, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010).
When considering a motion to dismiss, this Court looks to the complaint and those documents attached or referred to in the complaint, accepts as true all allegations in the complaint, and draws all reasonable inferences from the pleading in favor of Plaintiff. Pace v. Swerdlow, 519 F.3d 1067, 1073 (10th Cir. 2008). This Court is not bound to accept as true a plaintiff's legal assertions. Iqbal, 556 U.S. at 678 . “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
This Court construes “[a] pro se litigant's pleadings. . . liberally, ” holding them “to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims against Defendant Turn Key Health.
Defendant Turn Key Health is a private contractor that provides inmate healthcare services. See Autry v. Cleveland Cty. Sheriff's Dep't, No. CIV-151167-D, 2018 WL 719044, at *1 (W.D. Okla. Feb. 5, 2018). Plaintiff sues Defendant Turn Key Health in its official capacity and does not name any individual health care provider. See Doc. 1, at 5.
Plaintiff alleges he was “denied the right to access medical [care] creating a deliberate indifference” and “Defendants actions violate[d] the Eighth Amendments['] ban against cruel and unusual punishment and the Fourteenth Amendment to the United States Constitution.” Id. at 7. In his complaint, Plaintiff references a “sick call slip” he said he submitted “on or about 7/25/20” “seeking medical/dental treatment for two broken teeth causing him acute pain.” Id. at 9. Plaintiff asserts the health care provider who treated him told him that “regardless of the pain” and “per policy” he would “have to undergo and complete (3) treatments of Ibuprofen and Amoxicillin” and “if the pain continued” he “would be prescribed additional perscription.” Id. Plaintiff contends that because his “chronic pain” “could not be adequately treated by continuously administering Ibuprofen and Amoxicillin” he “continued to seek administrative relief.” Id.
Plaintiff states that Defendant James responded to Plaintiff's request to staff by reiterating that the health care provider had treated Plaintiff and prescribed him medication on August 6, 2020, for his toothache. Id. at 10. She instructed Plaintiff to submit another sick call request to the nurse if he had any further issues with his teeth. Id. Plaintiff does not state he submitted another sick call slip. Instead, Plaintiff complained again to staff and Defendant Deveraux responded that he could either follow the health care provider's orders or provide payment for an outside dentist visit and they would transport him there. Id. Plaintiff responded that he did not have the money for a dentist visit and he did not like the health care provider's option because it would “require [him] (per policy) to complete several treatments of several medications” that “could take up to (90) days to complete!” Id.
Plaintiff asks the Court to order Defendants to “immediately” send him to a dentist and award him “$75,000 for [his] pain and suffering.” Id. at 3.
Plaintiff's request for injunctive relief is moot as he is now in the custody of the Oklahoma Department of Corrections and is incarcerated at the Oklahoma State Reformatory in Granite, Oklahoma. See Toevs v. Milyard, 563 Fed.Appx. 640, 645 (10th Cir. 2014) (“Transfer generally moots an inmate's claims for remedies of declaratory and injunctive relief.”).
III. Plaintiff fails to state a claim that Defendant Turn Key Health's application of its alleged policy deprived him of his constitutional rights.
A. Defendant Turn Key Health's municipal liability.
A municipality or a county can only be held liable for constitutional violations committed pursuant to official policy or custom. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (“[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”); Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015) (applying Monell to a county). An entity working on a county's behalf to perform a county function (such as Defendant Turn Key Health providing medical care to inmates at the Logan County Detention Center) can be liable for the same types of Monell violations. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (“Although the Supreme Court's interpretation of § 1983 in Monell applied to municipal governments and not to private entities acting under color of state law, caselaw from this and other circuits has extended the Monell doctrine to private § 1983 defendants.”).
To state a § 1983 claim against Defendant Turn Key Health in its official capacity, Plaintiff must first identify a “‘policy or custom' that caused [him] injury.” See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (quoting Monell, 436 U.S. at 694). “A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Id. at 770.
Secondly, Plaintiff must establish “a direct causal link between the policy or custom and the injury alleged.” Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Finally, Plaintiff must show “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider, 717 F.3d at 769; see, e.g., Quintana v. Santa Fe Cty. Bd. of Comm'rs, 973 F.3d 1022, 1034 (10th Cir. 2020) (explaining that to state a claim under the municipal liability theory, a plaintiff “must allege facts showing: (1) an official policy or custom, (2) causation, and (3) deliberate indifference.”).
These standards apply to Plaintiff's claims for both monetary and injunctive relief against Defendant Turn Key Health. See Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1210 (10th Cir. 2006) (“[A] municipality can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where ‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'”) (quoting Monell, 436 U.S. at 690).
Dismissal of a municipal liability claim “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.'” Autry, 2018 WL 719044, at *9 (quoting Sherman v. Klenke, 653 Fed.Appx. 580, 592-93 (10th Cir. 2016)).
B. Plaintiff has sufficiently alleged a policy but has not sufficiently alleged Defendant Turn Key Health's application of the policy deprived him of a constitutional right.
Plaintiff alleges Defendant Turn Key Health had a policy of denying or delaying dental treatment which caused him pain and suffering, and stemmed from Defendant's deliberate indifference to his serious dental needs. Doc. 1, at 7, 9. “The Fourteenth Amendment prohibits deliberate indifference to a pretrial detainee's serious medical needs.” Crowson v. Wash. Cty., 983 F.3d 1166, 1178 (10th Cir. 2020) (internal quotation marks and citation omitted). This Court applies “the two-part Eighth Amendment inquiry” to Plaintiff's deliberate indifference claim. Quintana, 973 F.3d at 1028; see also Strain v. Regalado, 977 F.3d 984, 993 (10th Cir. 2020) (applying “our two-prong test” to the plaintiff's deliberate indifference claims).
Objectively, the harm Plaintiff complains of must be “sufficiently serious to be cognizable under the Cruel and Unusual Punishment Clause of the Eighth Amendment.” Quintana, 973 F.3d at 1029 (internal quotation marks and citation omitted). A medical need is considered 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.'” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)).
Subjectively, a defendant must know of a substantial risk to an inmate's health or safety and act in purposeful disregard of that risk. Strain, 977 F.3d at 990. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [he] must also draw the inference.” Id. (internal quotation marks and citation omitted).
“[A] delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (internal quotation marks and citation omitted). “The substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Id. (internal quotation marks and citation omitted).
Broadly construing Plaintiff complaint, he asserts Defendant Turn Key Health's “policy” of requiring three rounds of Ibuprofen and Amoxicillin before allowing him to see an outside dentist violated his right to medical treatment for his pain. Doc. 1, at 9. See, e.g., Bowlds v. Turn Key Health, No. CIV-19-726-SLP, 2019 WL 6652084, at *2 (W.D. Okla. Dec. 6, 2019) (finding a Logan County Detention Center detainee's similar allegations sufficient to “identify a policy or custom that plausibly supports a claim for § 1983 relief”). Assuming, as the Court must when reviewing the motion to dismiss, that such a policy exists, Plaintiff's allegations fail to establish that Defendant Turn Key Health's application of the policy to him resulted in a constitutional injury.
Defendant Turn Key Health argues Plaintiff's allegations of municipal liability against it are “conclusory” and “insufficient to establish Monell liability.” Doc. 41, at 16. But at the motion to dismiss stage, Plaintiff need only allege liability, not establish it. Pace, 519 F.3d at 1073.
While Plaintiff's initial allegations of “acute” tooth pain could be considered sufficiently serious at this stage, he does not allege either that he was ever denied or received delayed treatment for his condition based on the policy. In fact, he admits the medical staff promptly prescribed pain medication and a course of antibiotics to treat him. Doc. 1, at 9. While Plaintiff may have disagreed with his initial course of treatment, he does not assert that the treatment the medical staff gave him was ineffective to treat his condition. He also does not assert either that his condition continued or worsened or that he requested further treatment and the medical staff denied his request. This is fatal to his claims because, while he may suspect that he would not have seen a dentist for months per Defendant's alleged policy if his condition had continued, his own allegations suggest his condition either improved or was resolved after treatment. So, the fact that Plaintiff thought he needed to immediately see an outside dentist was a mere disagreement with his diagnosis or prescribed course of treatment, and that is not enough to state a constitutional violation for deliberate indifference. See Perkins v. Kan. Dep't of Corrs., 165 F.3d 803, 811 (10th Cir. 1999) (“[A] prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.”); see also Strain, 977 F.3d at 994 (“To be sure, whether [the prisoner] received some care does not foreclose the possibility of a deliberate indifference claim . . ., but an individual who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.”) (internal quotation marks and citations omitted). The undersigned therefore recommends the Court grant Defendant Turn Key Health's motion to dismiss Plaintiff's claims against it for failure to state a claim. Doc. 41. The Court's dismissal should be without prejudice.
See, e.g., Ramos, 639 F.2d at 576 (“[D]ental care is one of the most important medical needs of inmates.”). Cf. Brooks v. Colo. Dep't of Corrs., 715 Fed.Appx. 814, 822 (10th Cir. 2017) (holding that the plaintiff's evidence of delayed dental care for his cavity “could lead a reasonable fact-finder to conclude that [the treating dentist] had turned a blind eye to a sufficiently serious dental condition”).
In its motion to dismiss, Defendant Turn Key Health asserts Plaintiff's allegations show he never submitted another sick call slip regarding his tooth pain to medical staff, even though Defendant James told him he could do so. Doc. 41, at 14. Plaintiff has not responded to the motion to dismiss to dispute this characterization of his claims.
IV. Recommendation and notice of right to object.
The undersigned recommends granting Defendant Turn Key Health's motion to dismiss. Doc. 41. The undersigned advises Plaintiff of his right to object to this Report and Recommendation by November 29, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make timely objection waives his 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 terminate the referral to the undersigned Magistrate Judge in this matter.