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Bradley v. United States

United States District Court, D. Kansas

September 27, 2017

OTIS L. BRADLEY, JR., Deceased, By and Through TIMOTHY KING, Special Administrator, and LaTASHA BRADLEY, Heir of Decedent, Plaintiffs,



         Otis Bradley, Jr., by and through Timothy King, special administrator of his estate, and LaTasha Bradley, Otis Bradley's wife and heir, bring this suit against the United States of America, Dr. Kristine Aulepp, Amber McCafferty, Dr. Jason Clark, Jason Troll, Justin Alexander, Claude Maye, and two unknown individuals for failing to provide adequate medical care to Bradley while he was incarcerated at the United States Penitentiary in Leavenworth, Kansas (“USP Leavenworth”). Plaintiffs assert four claims in their Amended Complaint: (1) a Bivens claim for violation of Bradley's Eighth Amendment rights; (2) a wrongful death claim under the Federal Tort Claims Act (“FTCA”); (3) a survival claim for personal injuries under the FTCA; and (4) a breach of duty to provide reasonable care under the FTCA.

         In response to Plaintiffs' Amended Complaint, Defendants filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. 25).[1] Plaintiffs responded to Defendants' motion, but also filed a Motion to Defer Ruling on Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. 39) under Federal Rule of Civil Procedure 56(d). Because Defendants' motion is a hybrid motion, the Court will first consider its Motion to Dismiss. As explained below, the Court grants in part and denies in part this motion. Then, the Court will turn to Plaintiffs' motion under Rule 56(d) to defer ruling on the summary judgment aspect of Defendants' motion. Because the Court concludes that it should grant this motion, it denies Defendants' motion for summary judgment without prejudice.

         I. Factual and Procedural Background[2]

         Otis Bradley was incarcerated at USP Leavenworth from mid-2014 through early 2015 as a result of his conviction in the United States District Court for felon in possession of a firearm. Defendant Dr. Aulepp conducted an initial health screen for Bradley on May 21, 2014. The results did not indicate that he was ill or had any congenital diseases. Another USP Leavenworth employee conducted a health screen on Bradley on June 3, 2014, which also showed no chronic health issues.

         In early December 2014, Bradley was placed in solitary confinement or “SHU” after he exchanged words with a corrections officer. On December 15, he collapsed in his cell. He was transferred to St. Luke's Cushing Hospital in Leavenworth, Kansas, where he presented with abdominal pain, facial and hand numbness, drooling, and eye twitching. His lab results were abnormal. Dr. Christopher Warholic reported: “Discuss with jail medical need for further evaluation such as neurology evaluation or possible need for holter monitor.” On December 16, Bradley was transported back to USP Leavenworth. In a follow-up appointment with Defendant Aulepp, she noted: “No further intervention needed.” Bradley's health continued to deteriorate throughout December without further intervention from Defendant Aulepp, other Leavenworth medical personnel, or corrections workers. In addition, he continued to have contact with Defendants McCafferty, Alexander, Clark, and Troll, all of whom are medical personnel at USP Leavenworth, from December 16 through January 11, 2015. Plaintiffs allege that none of these individuals provided sufficient care to ensure that Bradley's condition was appropriately treated after his hospitalization. Plaintiffs also allege that Defendant Maye, the warden at USP Leavenworth during the relevant time period, did not ensure that Bradley's condition was treated appropriately.

         Bradley continued to be ill during January 2015. From January 4 to January 11, he did not eat due to extreme abdominal pain, nausea, and vomiting. USP Leavenworth personnel did not perform an evaluation. As of January 11, 2015, Bradley had been ill for almost a month. He had lost 20 pounds, was nauseous for many days, and had not had a bowel movement in over a week.

         On January 11, 2015, Otis reported to the prison medical clinic with blood in his vomit and extreme abdominal pain. He was transported to St. Luke's Cushing Hospital, where he was diagnosed with gallstones, pancreatitis, and diabetes. The next day, he was transferred to St. Luke's Hospital in Kansas City, Missouri. He remained there until his death from pancreatitis on February 6, 2015. Bradley's family was notified on February 4 that he was on life support and they needed to come to the hospital to “make decisions.” Until that time, his family did not know that he was ill. Plaintiff alleges that Bradley was allowed to become so ill at USP Leavenworth that his condition upon arrival at the hospital prevented any treatment from being effective.

         Following Bradley's death, Plaintiffs filed a Freedom of Information Act (“FOIA”) Request attempting to obtain prison records related to his death. The Bureau of Prisons (“BOP”) responded to Plaintiffs' request on December 9, 2015, proving 299 pages of documents released in full and 18 pages released with some redactions. The BOP withheld 29 documents in their entirety. The BOP maintains that Plaintiff received the majority of documents related to Bradley, including his Inmate Central File, his medical file, and his Psychology File. Plaintiffs maintain that while some of these documents were helpful, Plaintiffs had already received many of them from St. Luke's Hospital, and others did not specifically address the issues involved in the case.

         On May 12, 2016, Plaintiffs' counsel filed an administrative demand under the FTCA and served the demand on the BOP. The 180 day deadline for BOP to investigate the claim expired on November 22, 2016, without any documents being provided.

         Plaintiffs filed this lawsuit on December 15, 2016, against Defendants United States, Dr. Aulepp, and two unknown individuals. On February 16, 2017, Plaintiffs filed an Amended Complaint. Using information from the documents produced in response to the FOIA request, Plaintiffs added McCafferty, Dr. Clark, Troll, Alexander, and Maye as Defendants. Plaintiffs' Amended Complaint asserts a Bivens claim against the six individual Defendants for violation of his Eighth Amendment rights and three tort claims against the United States under the FTCA. In response, Defendants filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment arguing that the individual Defendants are entitled to qualified immunity and that Plaintiffs did not administratively exhaust certain aspects of their FTCA claims. Plaintiffs responded to Defendants' motion, and also filed a Motion to Defer Ruling on Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. Plaintiffs argue that they do not have sufficient facts to justify its opposition to Defendants' summary judgment motion. Defendants then filed a Motion to Stay Discovery, which the Court denied. In this Order, Magistrate Judge James specifically noted that Plaintiffs may conduct discovery limited to the threshold issue of qualified immunity and on matters bearing on Defendants' Motion to Dismiss, or in the Alternative Motion for Summary Judgment. The docket does not indicate whether the parties have conducted any discovery since this Order.

         II. Defendants' Motion to Dismiss

         A. Legal Standard

         Under Rule 12(b)(6), a defendant may move for dismissal of any claim where the plaintiff has failed to state a claim upon which relief may be granted. Upon such motion, the court must decide “whether the compliant contains ‘enough facts to state a claim to relief that is plausible on its face.' ”[3] “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[4] “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.”[5] In determining whether a claim is facially plausible, the court must draw on its judicial experience and common sense.[6] All well-pleaded facts in the complaint are assumed to be true and are viewed in the light most favorable to the plaintiff.[7] Allegations that merely state legal conclusions, however, need not be accepted as true.[8]

         Under Rule 12(b)(1), a court may dismiss a complaint based on lack of jurisdiction over the subject matter of the complaint. Because federal courts are courts of limited jurisdiction, they presume a lack of jurisdiction.[9] Plaintiffs bear the burden of alleging sufficient facts to overcome this presumption.[10]

         B. Analysis

         Defendants ask the Court to dismiss Plaintiffs' claims for two reasons. First, Defendants argue that Plaintiffs' Bivens claim should be dismissed for failure to state a claim upon which relief can be granted because they are entitled to qualified immunity and Plaintiffs' Amended Complaint does not state that Defendants violated a constitutional right. Second, Defendants argue that the Court does not have subject matter jurisdiction over certain aspects of Plaintiffs' FTCA claims because Plaintiffs did not fully exhaust their administrative remedies. The Court will consider each of these arguments below.

         1. Failure to State a Claim

         Plaintiffs allege Defendants Aulepp, Clark, Maye, McCafferty, Alexander, and Troll violated Bradley's Eighth Amendment right to be free from cruel and unusual punishment due to inadequate medical care. In response, Defendants assert the defense of qualified immunity. Summary judgment is the “typical vehicle” for asserting a qualified immunity defense, but the Court will also review it on a motion to dismiss.[11] When a defendant asserts a qualified immunity defense in a motion to dismiss, the defendant subjects himself to a more challenging standard of review.[12] This standard requires the plaintiff to plausibly allege that (1) the defendant deprived the plaintiff of a constitutional right; and (2) that right was clearly established at the time.[13] The court may consider either prong of this two-part inquiry in any order.[14] If one aspect is not satisfied, then qualified immunity is appropriate and no further inquiry need be undertaken.[15]

         a. Whether There Was a Violation of a Constitutional Right

         The Eighth Amendment protects prisoners from “deliberate indifference to serious medical needs.”[16] Prison guards and doctors may thus be held liable for “indifference . . . manifested . . . in their response to the prisoner's needs or by . . . intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed.”[17]

         To state a denial of medical care claim, a plaintiff must satisfy an objective and subjective component.[18] Under the objective component, the plaintiff must allege that the deprivation was sufficiently serious.[19] “[A] medical need is sufficiently serious if it is one . . . that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.”[20] Under the subjective component, the plaintiff must allege that the prison official was deliberately indifferent to a serious medical need.[21] A plaintiff sufficiently alleges a culpable mindset when the facts alleged show that the prison “official acted or failed to act despite his knowledge of a substantial risk of serious harm.”[22] In other words, a prison official acts with a culpable state of mind when he “knows of and disregards an excessive risk to inmate health or safety.”[23] “[T]he official must be both aware of the facts from which the inference could be drawn that substantial risk of serious harm exists, and he must also draw the inference.”[24]

         i. Defendants Aulepp, McCafferty, Alexander, Troll, and Clark

         Plaintiffs' Amended Complaint alleges sufficient facts to state an Eighth Amendment claim against Defendants Aulepp, McCafferty, Alexander, Troll, and Clark. With regard to the objective component, Plaintiffs allege that Bradley requested medical treatment after returning to USP Leavenworth from the hospital on December 16 until January 11, 2015. Plaintiffs allege that during that period, Bradley was ill, lost 20 pounds, was nauseous for many days, and had not had a bowel movement for over a week. Plaintiffs further allege that Defendants allowed Bradley to grow so ill that despite St. Luke's treatment of him for several weeks, he died. Accepting Plaintiffs' Amended Complaint as true, Bradley's condition was sufficiently serious that even a lay person in this situation would recognize the need for a doctor's intervention. Thus, Plaintiff has satisfied the objective component.

         Plaintiffs' allegations are not nearly as specific with regard to the subjective component, but they are sufficient to state an Eighth Amendment claim against Defendants McCafferty, Alexander, Troll, Clark, and Aulepp. Plaintiffs allege that (1) Defendants had contact with Bradley from December 16 to January 11; (2) Bradley's physical condition continued to deteriorate from December 2014 to early January 2015; and (3) from January 4 through January 11, 2015, Bradley did not receive any medical treatment even though he was not eating and suffering extreme abdominal pain, nausea, and vomiting. Plaintiffs further allege that these Defendants did not provide any treatment to Bradley until he began repeatedly vomiting on January 11. In addition, with regard to Defendant Aulepp, Plaintiffs allege that she did not follow up on Dr. Warholic's notes that Bradley needed further evaluation after returning from the hospital on December 16 and that she did not further evaluate or treat Bradley when his condition continued to worsen during December 2014. Plaintiffs have sufficiently alleged that Defendants knew of Bradley's medical condition and disregarded it. Therefore, they have satisfied the subjective component of an Eighth Amendment claim.

         ii. Defendant Maye

         Plaintiffs' Amended Complaint does not allege sufficient facts to state an Eighth Amendment claim against Defendant Maye. Defendant Maye was the warden at USP Leavenworth at the time of Bradley's incarceration. As warden, he is not liable for any of the alleged constitutional violations of his employees under the doctrine of respondeat superior.[25]Indeed, to hold a Defendant Maye liable under Bivens, the Eighth Amendment violation must be traceable to Defendant Maye's own actions.[26] Here, Plaintiffs do not allege that Bradley advised Defendant Maye of his medical condition or any issue concerning his medical care. Instead, Plaintiffs merely assert that Maye failed to assist Bradley and that he was deliberately indifferent to Bradley's need for medical care. These conclusory allegations do not satisfy the subjective component of an Eighth Amendment claim. Thus, Defendant Maye is entitled to qualified immunity and is dismissed from this lawsuit.

         b. Whether the Constitutional Right Was Clearly Established

         The Court will defer ruling on the second prong of the qualified immunity analysis until it addresses Defendants' motion for summary judgment. The only argument Defendants make in their motion to dismiss is that Plaintiffs have not sufficiently alleged that Defendants violated a constitutional right. Furthermore, when addressing this prong of the qualified immunity analysis, both parties refer to documents outside the pleadings in their arguments. Therefore, the Court declines to address this portion of the qualified immunity analysis at this time.

         2. Failure to Exhaust Administrative Remedies

         Defendants move for the dismissal of all claims Plaintiffs asserted under the FTCA that were not administratively exhausted through Administrative Claim No. TRT-NCR-2016004492. Specifically, the United States argues that Plaintiffs have not exhausted their claims related to paragraphs 48-49 and 80(e) of the Amended Complaint. Paragraphs 48 and 49 allege that USP Leavenworth staff advised Bradley's family that they were not allowed to notify families about an inmate's severe medical illness until the inmate was dead and that Defendant Maye supervised the correctional officers and implemented the policy that prevented families from having contact with an inmate when suffering life threatening injuries and illnesses. Paragraph 80(e) alleges that the United States breached a duty to provide reasonable care by failing to properly instruct, supervise, train, or control corrections officers to communicate health related emergencies, observe and report on medical conditions, and provide information to medical staff in a timely manner for proper medical care of inmates. In response, Plaintiffs argue that its administrative claim provided sufficient notice to the United States of the facts and circumstances underlying their claims.

         The FTCA is a waiver of sovereign immunity that authorizes suits against the United States for damages for certain torts committed by federal employees acting within the scope of their employment.[27] The FTCA generally provides that the United States is liable, to the same extent as a private party, “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”[28]

         To bring a tort claim under the FTCA against the United States, that claim must be presented to the appropriate federal agency and be finally denied by that agency.[29] The filing of an administrative claim is a jurisdictional requirement, and the failure to do so, leaves the Court without subject matter jurisdiction.[30] If a claim is not presented to the agency before a civil judicial action is filed, the case must be dismissed.[31]

         The Tenth Circuit applies a pragmatic test in determining whether an administrative claim is sufficiently exhausted under the FTCA. This test asks “whether the claim's language serves due notice that the agency should investigate the possibility of particular (potentially tortious) conduct.”[32] In addition, “a claim should give notice of the underlying facts and circumstances rather than the exact grounds upon which [the claimant] seeks to hold the government liable.”[33] “[T]he FTCA's notice requirements should not be interpreted inflexibly.”[34]

         The Court first turns to the allegations in paragraphs 48 and 49 of the Amended Complaint. As an initial matter, the Court notes that these allegations are not “claims” but facts relevant to Plaintiffs' claims. The Court is not clear to which claim or claims these allegations pertain, and the parties do not provide this information in their briefs. To the extent these facts support Plaintiff's survival claim under the FTCA, the Court concludes that they have been administratively exhausted. Attached to Plaintiffs' administrative complaint is a 19 page letter setting forth the facts of the case, a summary of Plaintiffs' claims, and the damages Plaintiffs seek for Bradley's death. In the factual section of the letter, Plaintiffs state that USP Leavenworth officials did not officially notify Bradley's family that he was critically ill until February 4, 2015-three and half weeks after he was transferred to the hospital. The facts further state that because the Warden had not called them to inform them that Bradley could have visitation, the family still believed at this time that he was in solitary confinement for disciplinary problems. They were allegedly shocked when they arrived at the hospital to find him in a coma, intubated, and brain dead. In the damages section of the letter, Plaintiffs state that they will seek damages for Bradley's conscious pain and suffering and emotional distress, describing it as follows:

There is no question that [Bradley] felt conscious pain, suffered and endured an extensive illness prior to succumbing to his pancreatitis caused by gall stones. This aspect of the claim traumatizes his family the most. That as he lay dying in a hospital bed, suffering from sepsis and other ...

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