HOLLY L. TEETER, District Judge.
In this 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.
On 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.
Plaintiff 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.
Plaintiff 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.
Based 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 force." Id.
As set 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.
The 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 mind.
Before 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.
Plaintiff's 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, the Court considers and decides the motions without the benefit of Plaintiff's position as to the arguments raised by Defendants.
As discussed above, Plaintiff asserts a claim against Defendants pursuant to 42 U.S.C. § 1983.
The Eighth Amendment confers upon the government an obligation to provide medical care for those whom it is punishing by incarceration. Estelle, 429 U.S. at 103. The infliction of unnecessary suffering on a prisoner by failing to treat his medical needs "is inconsistent with contemporary standards of decency" and violates the Eighth Amendment. Id. at 103-04. Accordingly, prison officials are held to have violated the Eighth Amendment when they are "deliberately indifferent to the serious medical needs of prisoners in their custody." Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
To establish an Eighth Amendment deliberate indifference claim, Plaintiff must meet two requirements—an "objective" and a "subjective" requirement. Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the alleged deprivation of the medical need must be, from an objective standpoint, "sufficiently serious." Id. Second, for the subjective component, Plaintiff must show that Defendants exhibited a "sufficiently culpable state of mind"—namely, one of "deliberate indifference" to Plaintiff's health or safety. Id.; Wilson v. Seiter, 501 U.S. 294, 297 (1991). Ultimately, "[f]or a prison official to be found liable of deliberate indifference under the Eighth Amendment, the official must know of and disregard an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must draw the inference." Perkins, 165 F.3d at 809 (internal quotations omitted). But "[a] negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation." Id. at 811.
Here, Plaintiff has not pleaded facts sufficient to establish a constitutional violation by Defendants. First, with respect to the objective prong, Plaintiff has not established that he was deprived of a serious medical need sufficient to state his claim. In his complaint, Plaintiff alleges that, following his arrest, he was taken to the Salina Regional Hospital where he received treatment for his injuries, including an x-ray. Doc. 13 at 2. Plaintiff's complaint alleges that, once he arrived at SCJ, he was denied a shower, antibiotics, and an MRI, which resulted in an infection and disability. Id. at 2-3. Yet Plaintiff concedes he was allowed to shower four days after his arrest. Id. at 2. The allegations likewise do not establish that Defendants denied him medication. Rather, as Plaintiff alleges, when he asked for antibiotics Defendants stated simply that they had "to order" or "go get" the medication. Id. Plaintiff admits he received the requested antibiotics on March 13, 2019, six days after his arrest. Id. at 2-3.
Plaintiff ultimately appears to take issue with the
Second, turning to the subjective analysis, Plaintiff has not pleaded facts showing that Defendants were deliberately indifferent to his health or safety. Here, Plaintiff's allegations regarding Defendants are exceedingly general and vague. Plaintiff's complaint simply alleges: "I was denied antibiotics and [a] shower by the following [SCJ] staff: Jamie Nutz, Sara [sic] Shaft, Lou Miller, David Wallace, Michael Sutton [and] Tina Miller." Doc. 13 at 2. The Tenth Circuit has noted that, where a plaintiff asserts § 1983 claims against multiple defendants, there is a greater likelihood of failures in notice and plausibility, and, therefore, "it is particularly important . . . that the complaint make clear exactly
Plaintiff does allege more specific allegations against Lou Miller—that Lou Miller denied his request for an MRI, telling him "there's nothing we can do" and to "just let [the] prison handle it," despite observing that Plaintiff had "lost feeling in [his] right thumb" (Doc. 13 at 3)—but these allegations do not plausibly establish conduct rising to the level of deliberate indifference. The Tenth Circuit has held that "[a] difference of opinion with medical staff about treatment is not actionable under the Eighth Amendment." Toler v. Troutt, 631 F. App'x 545, 547 (10th Cir. 2015); see also Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992) (in case involving a dispute as to what medications were prescribed, noting that matters of medical judgment do not give rise to a § 1983 claim). Indeed, "the subjective component is not satisfied,
For all of these reasons, Plaintiff has not met his burden and has failed to plausibly allege a violation of his Eighth and Fourteenth Amendment rights against Defendants as a result of deliberate indifference. Because Plaintiff's complaint lacks the factual support necessary for the Court to reasonably infer that he has a plausible claim for relief against Defendants under § 1983, the Court grants the pending motions.
THE COURT THEREFORE ORDERS that the Motion for Judgment on the Pleadings filed by Defendants Jamie Nutz and Lou Miller (Doc. 29) is GRANTED.
THE COURT FURTHER ORDERS that the Motion to Dismiss filed by Defendants Michael Sutton, Sarah Shaft, David Wallace, and Tina Miller (Doc. 33) is GRANTED.
IT IS SO ORDERED.
