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Edminster v. Dedeke

United States District Court, D. Kansas

April 18, 2018

SHERIFF DEDEKE, et al., Defendants.


          CARLOS MURGUIA United States District Judge

         Pro se plaintiff David Bently Edminster filed suit against Leavenworth County defendants Sheriff Dedeke, Lt. Lorenzo, Lt. O'Brien, Sgt. Sibold, Sgt. Masoner, Sgt. Patterson, and Major Dedeke; and defendants Advanced Correctional Healthcare, Melissa Wardrop, and “Doctor Bob, ” alleging violations of his Eighth and Fourteenth Amendment rights for deliberate indifference and retaliation while he was incarcerated in the Leavenworth County jail. The matter is now before the court on defendants Advanced Correctional Healthcare and Melissa Wardrop's Motion for Judgment on the Pleadings (Doc. 41). Plaintiff failed to timely respond to defendants' motion and did not respond to the Order to Show Cause (Doc. 49) issued by this court on January 23, 2018, in which plaintiff was given until February 2, 2018 to respond to defendants' motion. Because plaintiff failed to comply with the court's order, the court will consider defendants' motion as uncontested pursuant to D. Kan. Rule 7.4(b).

         The court, however, cannot grant defendants' motion solely based on plaintiff's failure to respond. See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003) (“[E]ven if a plaintiff does not 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.”). The court, therefore, will review defendants' motion while liberally interpreting the allegations in plaintiff's pro se complaint. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

         I. Background

         The following facts are summarized from plaintiff's second amended complaint. Plaintiff began serving a one-year commitment at the Leavenworth County jail on March 2, 2016. Upon arrival, plaintiff was housed in “med holding” so that jail staff could assess his many medical issues including rheumatoid arthritis, degenerative disc disease, scoliosis, sciatica, and dental issues. Defendant Wardrop, a nurse working for defendant Advanced Correctional Healthcare, told plaintiff he would not be given painkillers unless he had chronic “life threatening” pain, otherwise he could purchase painkillers from the commissary. Defendant Wardrop eventually prescribed plaintiff an anti-depressant and antibiotics for his teeth. Plaintiff was “denied dental call out” in April 2016 and his tooth infection returned after he took his prescribed antibiotics. After plaintiff fell walking to the bathroom and broke his jaw, he was referred to KU Medical Center for oral surgery. He was again denied dental call out and was only given his morning antibiotics despite being prescribed both morning and evening antibiotics. After plaintiff filed a grievance, he began getting his morning and evening medications.

         Plaintiff was placed on a dental diet and was restricted from purchasing any sweet items from the commissary. His access to over-the-counter pain medication was restricted. Plaintiff first saw the dentist on August 16, 2016, who he claims told him he should have his teeth removed but refused to remove them. The dentist instead placed him on another regimen of antibiotics.

         Plaintiff continued to experience pain from his dental issues and filed an emergency grievance, which he claims was denied. He continued to submit grievances claiming he was denied over-the- counter pain medication. After experiencing extreme pain for two weeks, plaintiff finally saw the dentist, who prescribed him an antibiotic and said he would remove his teeth. Plaintiff asked to have his antibiotics changed as he felt they were not helping his infection, which he claims was denied by defendant Wardrop. On November 29, 2016, defendant “Dr. Bob” arrived and stated he would not extract plaintiff's teeth because of the infection in his mouth.

         On August 18, 2016, plaintiff filed the present case in this court. In his second amended complaint, filed March 29, 2017, plaintiff alleges defendants violated his Eighth and Fourteenth Amendment rights because he was denied medical and dental care and he accuses defendants of retaliation by denying dental visits, denying him sweets at meals and access to sweets at the commissary, and for “stone-wall[ing]” his attempts to use the grievance process to address his issues. On April 18, 2017, United States Senior District Court Judge Sam A. Crow dismissed plaintiff's claims for injunctive relief and claims against defendants in their official capacities. On January 26, 2018, this court granted the county defendants' Motion for Summary Judgment (Doc. 50).

         II. Legal Standards

         The court reviews a Rule 12(c) motion for judgment on the pleadings under the same standards as a Rule 12(b)(6) motion to dismiss. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992) (citation omitted). To withstand a motion to dismiss under 12(b)(6), a complaint must contain “enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.'” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible when “the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). When the complaint contains well-pled factual allegations, a court should “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         III. Analysis

         Defendants move for judgment on the pleadings, arguing plaintiff has failed to allege any facts that give rise to relief.

         Plaintiff first claims his Eighth and Fourteenth Amendment rights were violated as a result of “deliberate indifference” and “cruel and unusual punishment, ” arguing generally that he was denied adequate dental and medical care.

         The government has an obligation to “provide medical care for those who it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Prison officials' failure to provide proper medical care only violates the Eighth Amendment if a plaintiff can prove a “deliberate indifference to serious medical needs.” Id. at 106 (“It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.'”). To prove deliberate indifference, a plaintiff must meet both subjective and objective components. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The subjective component is met if “a prison official ‘knows of and disregards an ...

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