United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE.
case, Plaintiff Christopher Scott Rohan, proceeding pro se,
alleges excessive force and deliberate indifference claims
against law enforcement and medical personnel in violation of
his Eighth and Fourteenth Amendment rights. Plaintiff's
claims stem from injuries sustained during his arrest on
March 7, 2019, and the subsequent treatment of those
injuries. Six of the seven remaining defendants to this
case-Jamie Nutz, Lou Miller, Michael Sutton, Sarah Shaft,
David Wallace, and Tina Miller-seek dismissal of
Plaintiff's claims against them. There are two motions
pending before the Court: (1) the Rule 12(c) motion for
judgment on the pleadings filed by Defendants Nutz and Lou
Miller (Doc. 29); and (2) the Rule 12(b)(6)
motion to dismiss filed by Defendants Sutton, Shaft, Wallace,
and Tina Miller (Doc. 33). Although the procedural posture of
the two motions is different, the principal argument is the
same: Defendants allege that Plaintiff fails to state a claim
against them. For the following reasons, the Court agrees.
March 7, 2019, in an effort to evade law enforcement,
Plaintiff attempted to hide in the trunk of a vehicle. Doc.
13 at 2. After Officer Austin Baker arrived on the scene with
his police dog, Maggie, Plaintiff alleges he verbally
surrendered from inside the trunk. Id. Plaintiff
then proceeded to open the trunk, but, as he was attempting
to surrender, Plaintiff alleges Officer Baker ordered Maggie
to attack. Id. Plaintiff suffered multiple bite
wounds to his right foot, thigh, arm, and hand. Id.
was subsequently taken to the Salina Regional Hospital, where
he received “minor treatment” for his injuries.
Id. But Plaintiff alleges that, when he was
ultimately released into the custody of the Saline County
Jail (“SCJ”), he still had open wounds and was
“covered in dog slobber.” Id. While at
SCJ, Plaintiff claims he was “denied antibiotics and
[a] shower” by multiple members of the SCJ staff:
specifically, Defendants Nutz, Shaft, Wallace, Sutton, Lou
Miller, and Tina Miller. Id. Plaintiff alleges he
was allowed to shower four days after his arrest.
Id. But Plaintiff claims that, when he continued to
ask for antibiotics, the above-identified SCJ staff claimed
they had “to order” or “go get” the
medication even though, as Plaintiff alleges, a doctor had
already placed an order for the medication several days
earlier. Id. Plaintiff ultimately received the
requested antibiotics on March 13, 2019. Id. at 2-3.
claims the purported lack of antibiotics, coupled with the
denial of his requests for a shower, caused him to develop an
infection in his wounds, which has resulted in pain and
disability. Id. Plaintiff also claims that, while at
SCJ, he repeatedly asked for an MRI of his right arm.
Id. at 3. However, Plaintiff alleges Lou Miller told
him “there's nothing we can do.” Id.
Approximately two months later, on May 8, 2019, Plaintiff
claims he again asked Lou Miller about an MRI. Id.
But Plaintiff claims Lou Miller again denied his request,
telling him to “just let [the] prison handle it,
” despite observing that Plaintiff had “lost
feeling in [his] right thumb.” Id.
on these allegations, Plaintiff filed this action pursuant to
42 U.S.C. § 1983, alleging his Eighth and Fourteenth
Amendment rights were violated as a result of
“deliberate indifference” and “excessive
forth above, six of the seven remaining defendants have filed
motions asserting Plaintiff's claims are legally
deficient. Docs. 29, 33. Defendants Sutton, Shaft, Wallace,
and Tina Miller move pursuant to Rule 12(b)(6), arguing
Plaintiff fails to state a claim upon which relief can be
granted. Defendants Nutz and Lou Miller also argue Plaintiff
fails to state a claim, but bring their motion pursuant to
Rule 12(c), rather than Rule 12(b)(6), because they have
already filed an answer. See Arnold v. City of Olathe,
Kan., 2019 WL 4305132, at *3 (D. Kan. 2019) (noting that
Rule 12(h)(2) allows the court to consider a defense of
failure to state a claim within a Rule 12(c) motion for
judgment on the pleadings). A motion for judgment on the
pleadings under Rule 12(c), however, is essentially the same
as a motion to dismiss under Rule 12(b)(6)-the distinction
between the two rules is “purely one of procedural
formality.” Id. Therefore, courts evaluate a
Rule 12(c) motion under the same standard used to analyze a
Rule 12(b)(6) motion. Id.
court will dismiss a cause of action pursuant to Rule
12(b)(6) under two circumstances. First, dismissal is
warranted where an issue of law precludes recovery.
Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Second, dismissal is likewise appropriate where the factual
allegations fail to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible if its factual allegations allow the court to draw
the reasonable inference that the opposing party is liable
for the alleged misconduct. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Although the court must accept
well-pleaded factual allegations as true, this obligation
does not extend to legal conclusions or to “threadbare
recitals of the elements of the cause of action.”
Id. at 678-79. Complaints drafted by pro se
litigants, however, are held to a less stringent standard
than those drafted by legal counsel and will only be
dismissed if it appears beyond doubt that the plaintiff can
prove no set of facts supporting the claim for relief.
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Nevertheless, it is not the proper function of the courts to
assume the role of advocate for a pro se litigant. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The
Court examines Plaintiff's claims with these criteria in
Failure to Oppose Defendants' Motions
addressing the merits of the arguments raised in
Defendants' motions, the Court first addresses
Plaintiff's failure to respond to those motions.
Defendants Nutz and Lou Miller filed their Rule 12(c) motion
for judgment on the pleadings on July 10, 2019, and
Defendants Sutton, Shaft, Wallace, and Tina Miller followed
suit with their Rule 12(b)(6) motion to dismiss on July 22,
2019. Docs. 29, 33. Plaintiff did not timely respond to
either motion. See D. Kan. R. 6.1(d)(2) (responses
to dispositive motions must be filed and served within 21
days). Nonetheless, recognizing Plaintiff's pro se status
and the fact that he had recently been transferred to a
different facility, the Court extended Plaintiff's
deadline for response to September 12, 2019. Doc. 35. But the
Court advised Plaintiff that failure to respond to the
pending motions could result in the Court taking up the
motions without the benefit of his position. Id. To
date, Plaintiff still has not responded to either motion.
pro se status neither excuses him from compliance with
procedural rules nor shields him from the consequences of his
noncompliance. See Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994) (noting the Tenth Circuit has
“repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants”).
Because Plaintiff failed to respond to the motions by the
deadline for doing so, and because he has not made any
showing of excusable neglect, ...