United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
matter is before the Court on motions to dismiss filed by
Defendants Kansas Department of Corrections (KDOC), James
Heimgartner, Deane Donley, and Doug Burris (“KDOC
Defendants”) (ECF No. 54) and Defendants Corizon, LLC,
Connie Delperdang, and Mary Einerson (“Corizon
Defendants”) (ECF No. 57). Plaintiff has not filed a
response to either motion. For the reasons described herein,
Defendants' motions are granted. Plaintiff has also filed
a motion for status (ECF No. 59), which is addressed by this
Order, and the KDOC Defendants have filed a motion to stay
discovery (ECF No. 56), which is denied as moot.
alleges that his Eighth Amendment rights are being violated
by Defendants' deliberate indifference to his medical
needs. Mr. Dickerson further alleges a violation of the
Americans with Disabilities Act (“ADA”).
Plaintiff complains Defendants have not provided him with
proper treatment for his end-stage cirrhosis of the liver,
that he has not been treated by qualified medical providers,
and that the pain he suffers as a result of his medical
condition has been largely ignored by Defendants. He seeks an
injunction ordering that he be seen by the liver transplant
team at the University of Kansas and to follow the directions
resulting from that consult. Plaintiff also seeks
to Dismiss by KDOC Defendants (ECF No. 54)
their Motion to Dismiss and Memorandum in Support, the KDOC
Defendants first argue that Plaintiff has failed to state an
actionable claim under the ADA (Count II of the Complaint)
because the ADA does not provide a means for prisoners to
challenge medical decisions regarding appropriate treatment.
Defendants also point out that individuals, such as
Defendants Heimgartner, Donley, and Burris, cannot violate
addition, Defendants argue KDOC is not a proper party to a
§ 1983 action and should be dismissed; Defendants
Heimgartner, Donley, and Burris are entitled to Eleventh
Amendment immunity from claims Plaintiff makes against them
in their official capacities; the same defendants should be
dismissed because Plaintiff fails to allege they personally
participated in the alleged civil rights violations; and the
same defendants are entitled to qualified immunity on
Plaintiff's deliberate indifference claim.
to Dismiss by Corizon Defendants (ECF No. 58)
their Motion to Dismiss and Memorandum in Support, the
Corizon Defendants also argue that Count II should be
dismissed because failure to provide medical treatment an
inmate desires is not actionable under the ADA. Defendants
further argue that neither the individuals nor Corizon are
subject to the ADA.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain ‘enough facts to state a claim to relief
that is plausible on its face.'” Schrock v.
Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). When applying this
standard, a court must accept as true all well-pleaded
factual allegations and then ask whether those facts state a
plausible claim for relief. See Id. at 679. Viewing
the complaint in this manner, the Court must decide whether
the plaintiff's allegations give rise to more than
speculative possibilities. Id. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief.'” Id.
(quoting Fed.R.Civ.P. 8(a)(2)).
U.S.C. § 1915(e)
U.S.C. § 1915 applies to cases, such as this, that are
filed in forma pauperis. Under subsection (e)(2)(B),
such cases must be dismissed if the Court determines the
action is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C.