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Kershaw v. Jones

United States District Court, D. Colorado

April 27, 2016

VITO JOSEPH KERSHAW, Plaintiff,
v.
DAVID JONES, Doctor, Defendant.

ORDER ON MOTION TO DISMISS

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant’s Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6)[filed March 14, 2016; docket #37]. The parties have not requested oral argument and the Court finds it will not assist in the adjudication of the motion. Based upon the record herein and for the reasons that follow, the Defendant’s motion is granted.[1]

BACKGROUND

Plaintiff initiated this lawsuit pursuant to 42 U.S.C. § 1983 as a pro se litigant currently incarcerated in the Arkansas Valley Correctional Facility. Plaintiff filed the operative Amended Complaint on October 13, 2015. (Docket #6.)

I. Facts

The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiff in his Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).[2]

In or about April 2015 while he was incarcerated at the Arapahoe County Detention Center, Plaintiff told the Defendant, David Jones, M.D., that his right hip had been replaced and his left hip needed replacement. Plaintiff had his prescription for pain medication faxed from Dr. Denise Hunter at Kaiser Permanente to Dr. Jones and asked for the medication, but Dr. Jones refused to provide it to him. Instead, Dr. Jones gave the Plaintiff Tylenol, Aleve, and a medication for gout (Indocin), but they did not work for his pain. A record attached to the Amended Complaint[3] reflects that on August 5, 2015, Elaine Meyer responded to Plaintiff’s electronic message asking for the status of his request for “Tramadol and a follow up to any orthopedic” (docket #6 at 26) saying she saw “where [Dr. Jones] reordered your Tramadol. He ordered it 3 times per day, PRN (as needed). So, you will need to ask for it from the nurse at the med passes” (id. at 22).

In addition, Plaintiff requested x-rays “to show how bad his hip and spine [were]” and asked to see an “orthopedic” but “Dr. Jones refused both requests.” Dr. Jones stated it was “his policy, no narcotics, and n[either] he nor the sheriff will pay for [Plaintiff] to have follow up treatment.” A record attached to the Amended Complaint reflects a “request” by “David M. Jones MD MHP” on August 13, 2015 on behalf of the Plaintiff saying “P[atien]t would like to get his hip replaced while in jail d/t severe DJD.” Docket #6 at 23. The same record indicates a response from “MGeppert MD” saying, “I don’t feel an elective surgery of this nature should be done while in jail due to potential for infection and complications. P[atien]t will need to pursue this elective surgery at release.” Id. Plaintiff alleges he suffers “severe chronic pain with possible permanent hip damage.”

II. Procedural History

Based upon these factual allegations, Plaintiff alleges that Defendant deprived him of his Eighth and/or Fourteenth Amendment rights against cruel and unusual punishment by Defendant’s deliberate indifference to Plaintiff’s serious medical needs, and also violated the Americans with Disabilities Act (“ADA”). Amended Complaint, docket #6. Plaintiff requests compensatory damages as relief against the Defendant, and asks that Defendant be ordered to approve follow-up treatment by an orthopedic specialist and to “change his policy of no narcotics when prescribed. Id. at 16. Finally, Plaintiff attests that he is “under a life sentence[;] no release date as of yet.” Id.

Defendant responded to the Amended Complaint by filing the present motion on March 14, 2016 arguing that Plaintiff fails to state plausible claims for violation of the ADA and the Eighth Amendment. Plaintiff counters that he is “declared disabled by the disability court on Speer Blvd. in downtown Denver”; Defendant has many complaints and/or lawsuits pending against him; Defendant never examined him despite his complaints of severe pain; he suffers a “serious medical need” under the law; and Plaintiff was not a detainee as suggested by Defendant, but a “sentenced inmate” at the Arapahoe County Jail at all times relevant to the operative complaint. See docket #39. Defendant replies that Plaintiff’s allegations and argument fail to demonstrate he is a qualified individual with a disability as required under the ADA, and the pleading fails to allege the Defendant’s requisite state of mind and a “serious medical need” as required for the Eighth Amendment.

LEGAL STANDARDS

I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual ...


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