United States District Court, D. Kansas
JOE C. STUART, JR., Plaintiff,
ADVANCED CORRECTIONAL HEALTHCARE, INC., TRAVIS WRIGHT, ANNETTE BEHNEY, AND JOHN DOE, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Joe Stuart brings this action against defendants Advanced
Correctional Healthcare Inc., Travis Wright, Annette Behney,
and Dr. John Doe. He asserts claims under 42 U.S.C. §
1983 and state law for violating his right to medical care
during his incarceration with the Kansas Department of
Corrections (“KDOC”) and at various county jails
in Kansas. Mr. Wright moves to dismiss plaintiff's First
Amended Complaint under Fed.R.Civ.P. 12(b)(6). Doc. 75.
Plaintiff has never responded to the motion. For the reasons
explained below, the court grants the motion.
following facts are taken from plaintiff's First Amended
Complaint (Doc. 59), accepted as true, and viewed in the
light most favorable to plaintiff. ASARCO LLC v. Union
Pac. R.R. Co., 755 F.3d 1183, 1188 (10th Cir. 2014)
(explaining that, on a Fed.R.Civ.P. 12(b)(6) motion to
dismiss, the court must “accept as true all
well-pleaded factual allegations in the Complaint and view
them in the light most favorable to the [plaintiff].”
(citation and internal quotation marks omitted)). The court
also construes plaintiff's allegations liberally because
he proceeds pro se. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (explaining that courts must
construe pro se filings liberally and hold them to a less
stringent standard than formal pleadings drafted by lawyers).
March 2015, plaintiff was detained at the Leavenworth County
Jail (“LVCO”). There, he sustained a broken tooth
accompanied by sore, bleeding gums and a fistula that
actively was draining fluid into his mouth. After submitting
a request for a dentist, Nurse Melissa Doe examined
plaintiff. Nurse Doe informed plaintiff that dentists visited
the facility once a month and she would add his name to the
list of inmates scheduled to see the dentist during his next
visit. She advised plaintiff that jail policy prevented
plaintiff from receiving dental procedures at the facility
because the jail lacked a sterile environment necessary to
perform them. She told plaintiff that he would not receive
dental procedures until he was transported to a facility that
could provide such treatment. Nurse Doe prescribed plaintiff
a ten day course of antibiotics, three days of ibuprofen, and
peroxide rinses to treat the infection.
plaintiff met with a dentist identified as John Doe. The
dentist examined plaintiff and identified a cavity, two
broken teeth, a draining fistula, and an infection. Dr. Doe
asked how long plaintiff was expected to be detained at LVCO.
Plaintiff replied, predicting until the end of the year. Dr.
Doe told plaintiff that he could wait until he was
transferred to the next facility to have his broken teeth
extracted. The doctor prescribed a ten day course of
antibiotics, three days of ibuprofen, and peroxide rinses.
September 2015, plaintiff was transferred to the El Dorado
Correctional Facility (“EDCF”) in El Dorado,
Kansas. In November 2015, Dr. Streit examined plaintiff at
EDCF. He performed an emergency extraction of plaintiff's
two worst teeth. The dentist claimed that one of the teeth
had been neglected for so long that it had decayed beyond the
point of saving the tooth. Dr. Streit advised plaintiff to
seek medical attention immediately should he encounter more
pain, swelling, fever, or other symptoms.
December 2, 2015, plaintiff was transported to the Atchison
County Jail to appear for a court hearing. Plaintiff
requested a dentist on January 1, 2016, because he had severe
pain and swelling near a tooth on the lower right side. The
jail guard, Officer Harmon, advised plaintiff that no medical
staff was on duty because of the holiday. Officer Harmon gave
plaintiff a three-day prescription of ibuprofen. The next
day, plaintiff again requested to see a dentist because of
increased swelling and a significant increase in pain from
the previous day. Officer Harmon informed plaintiff that no
medical staff was on duty because it was the weekend, but a
nurse would be in the facility on Monday, January 4, 2016.
Officer Harmon also called Nurse Practitioner Annette Behney.
Ms. Behney prescribed antibiotics, ibuprofen, and peroxide.
January 3, 2016, plaintiff requested medical attention
complaining of blurred vision, increased heart rate, chest
pain, and an increase in pain and swelling. Officer Harmon
performed a cursory examination and noted an abnormally high
blood pressure. Plaintiff requested to be taken to an
emergency room. Officer Harmon denied the request and stated
that a nurse would be available the next morning.
next day, Nurse Martin examined plaintiff. She noted a
blister on plaintiff's gums, and she denied
plaintiff's request for a dentist to remove his problem
tooth. On January 8, Nurse Martin examined plaintiff again
and noticed foreign matter protruding from his gums, but she
took no further action.
submitted a grievance to Mr. Wright on January 7, 2016.
Plaintiff never received a response. Plaintiff alleges that
Mr. Wright is responsible for scheduling transportation of
inmates to and from facilities to appear for scheduled court
hearings. These are the only two factual allegations that
plaintiff makes about Mr. Wright's involvement in this
was sentenced in the District Court of Atchison County,
Kansas on December 28, 2016. He was returned to KDOC custody
on January 19, 2016, and transferred to the Norton
Correctional Facility. On January 25, 2016, Dr. Streit
performed a second emergency extraction at Norton to remove
plaintiff's broken tooth and repair the fistula.
8(a)(2) of the Federal Rules of Civil Procedures provides
that a Complaint must include a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” While the requirements do not demand
“detailed factual allegations, ” the Complaint
must contain more than “labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)).
survive a motion to dismiss, 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 Twombly, 550 U.S. at 570). A
claim is plausible on its face when the pleadings contain
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged” by the plaintiff. Id.
(citing Twombly, 550 U.S. at 556). This standard
requires that the Complaint “must give the court reason
to believe that this plaintiff has a reasonable
likelihood of mustering factual ...