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Stuart v. Advanced Correctional Healthcare, Inc.

United States District Court, D. Kansas

July 13, 2017

JOE C. STUART, JR., Plaintiff,


          Daniel D. Crabtree United States District Judge.

         Plaintiff 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.

         I. Facts

         The 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).

         In 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.

         In May, 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.

         In 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.

         On 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.

         On 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.

         The 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.

         Plaintiff 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 matter.

         Plaintiff 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.

         II. Legal Standard

         Rule 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)).

         To 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 ...

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