United States District Court, D. Kansas
WYATT J. ELLISON, Plaintiff,
N. C. ENGLISH, et al., Defendants.
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
matter is before the Court on two motions filed by the
defendants: 1) a Motion to Dismiss, or in the alternative,
Motion for Summary Judgment (ECF No. 27) filed by Defendants
Nicole English, Kristine McAllister, and Justin Blevins on
April 8, 2019; and 2) a Motion for Ruling Granting
Defendants' Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment as Uncontested (ECF No. 29).
Plaintiff has not filed a response to either motion, and the
time to do so has long expired. For the reasons described
herein, Defendants' motion for summary judgment is
granted, and the motion for a ruling granting the motion for
summary judgment as uncontested is denied.
for Ruling Granting Defendants' Motion to Dismiss, or in
the Alternative, Motion for Summary Judgment as Uncontested
(ECF No. 29)
ask the Court to grant their dispositive motion as
uncontested pursuant to D. Kan. Rule 7.4(b). Local Rule
7.4(b) provides that if a response to a motion is not filed
within twenty-one (21) days, the Court will consider and
decide the motion as an uncontested motion. Ordinarily, the
Court will grant the motion without further notice. However,
the Tenth Circuit has directed that a district court may not
grant a motion to dismiss or a motion for summary judgment
based solely on the plaintiff's failure to respond.
Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir.
2003). Instead, it “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.” Id. Consequently, Defendants'
Motion for Ruling Granting Defendants' Motion to Dismiss,
or in the Alternative, Motion for Summary Judgment as
Uncontested (ECF No. 29) is denied.
Ellison's amended complaint (ECF No. 10) alleges the
defendants were deliberately indifferent to Plaintiff's
medical needs in violation of the Eighth Amendment and
discriminated against him because of his race. According to
the amended complaint and Plaintiff's statement (ECF No.
2 at 12-14) filed with his original complaint, Plaintiff had
five eye surgeries prior to his transfer to USP Leavenworth
to attempt to remedy a tear duct problem with his left eye.
The surgeries were not completely successful, and Plaintiff
continued to experience problems with his eye, including
pain, excessive tearing, redness, and sensitivity to light.
Upon his arrival at USP Leavenworth, Plaintiff requested
assistance from medical staff due to pain and irritation of
his eye. Plaintiff was seen by Dr. Aulepp, who examined Mr.
Ellison and referred him to Dr. Qayum, a contract
optometrist. Dr. Qayum saw Plaintiff several times, and
eventually referred him to an ophthalmologist to evaluate
treatment options based on Plaintiff's request for
surgery. The Utilization Review Committee at USP Leavenworth,
including Defendants Aulepp and Blevins, denied the consult
request, concluding Plaintiff had already had five surgeries
to attempt to correct the eye problem without long-term
improvement. Plaintiff then asked Dr. Qayum to demand that
Plaintiff see a specialist surgeon, and Dr. Qayum refused.
Plaintiff alleges he also complained to Defendant English,
and she responded that Plaintiff was getting what was needed
for his eye.
alleges he has suffered nerve damage to his eye, glaucoma,
thinning of the eye skin, and cataracts due to the
defendants' deliberate indifference in delaying and
denying him medical care. He seeks compensatory damages of
$5, 000, 000 and unspecified injunctive relief.
to Dismiss (ECF No. 27)
their Motion to Dismiss and Memorandum in Support, Defendants
make the following arguments: 1) Defendant Blevins should be
dismissed for failure to serve; 2) the injunctive relief
requested by Plaintiff is not available in a Bivens
action; 3) Plaintiff's claim for injunctive relief
against the federal government is also prohibited by
sovereign immunity; 4) Plaintiff did not exhaust his
administrative remedies; 5) Defendant Blevins is immune as an
officer of the Public Health Service; and 6) all of
Plaintiff's claims should be dismissed because all
defendants are entitled to qualified immunity as Plaintiff
has not shown a constitutional violation.
as discussed below, the Court finds Plaintiff has failed to
state a claim upon which relief may be granted, there is no
need to address Defendants' other arguments.
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)).