Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ellison v. English

United States District Court, D. Kansas

August 7, 2019

WYATT J. ELLISON, Plaintiff,
v.
N. C. ENGLISH, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         This 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.

         Motion for Ruling Granting Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment as Uncontested (ECF No. 29)

         Defendants 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.

         Summary of Complaint

         Mr. 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.

         Plaintiff 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.

         Motion to Dismiss (ECF No. 27)

         In 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.

         Because, 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.

         Legal Standards

         Rule 12(b)(6)

         “To 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)).

         Summary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.