Bower v. Kelley
ORDER granting 7 MOTION to Dismiss filed by Wendy Kelley; pltf's claims against Kelley are DISMISSED WITH PREJUDICE; pltf's 12 Motion to Amend Complaint to add defts Asutin, Zoldessy, and Doe is GRANTED; the U.S. Marshal is directed to serve summons, complaints 2 12 , and this Order on defts Asutin and Zoldessy without prepayment of fees and costs; pltf's 16 MOTION for Summary Judgment is DENIED. Signed by Magistrate Judge H. David Young on 11/30/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RICHARD J. BOWER
NO: 5:11CV00248 HDY
Plaintiff Richard J. Bower, currently incarcerated at the Cummins Unit of the Arkansas
Department of Correction (“ADC”) filed this complaint on September 21, 2011, alleging that he was
being denied adequate medical care for his dentures. On October 17, 2011, Defendant Wendy
Kelley filed a motion to dismiss, along with a brief in support (docket entries #7 & #8). Plaintiff
filed a response and brief in support on October 25, 2011 (docket entries #12 & #13). In his
response, Plaintiff included a motion to amend to add additional parties.
I. Standard of review
Fed.R.Civ.P. 8(a)(2) requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief.” In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007)
(overruling Conley v. Gibson, 355 U.S. 41 (1967), and setting new standard for failure to state a
claim upon which relief may be granted), the Court stated, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment]to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do....Factual allegations must be enough to
raise a right to relief above the speculative level,” citing 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-236 (3d ed. 2004). A complaint must contain enough facts to state
a claim to relief that is plausible on its face, not merely conceivable. Twombly at 570.
Nevertheless, in Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Supreme Court emphasized
that when ruling upon a motion to dismiss in a § 1983 action, a pro se complaint must be liberally
construed and held to less stringent standards than formal pleadings drafted by lawyers. However,
such liberal pleading standards apply only to a plaintiff’s factual allegations. Neitzke v. Williams,
490 U.S. 319, 330 n. 9 (1989).
According to Plaintiff’s complaint, medical personnel at the ADC did not remove his
dentures to clean them for more than two years, which resulted in him having poor dental health and
two infections. Kelley asserts that Plaintiff’s claims against her should be dismissed because he
named her only in her official capacity, and, because she does not provide dental care herself, any
dental claims should be brought against the dental providers themselves.
The Eighth Amendment’s proscription of cruel and unusual punishment obligates prison
officials to provide adequate medical care to inmates in their custody. Estelle v. Gamble, 429 U.S.
97, 102-03 (1976). To succeed with an inadequate medical care claim, a plaintiff must allege and
prove that: (1) he had objectively serious medical needs; and (2) prison officials subjectively knew
of, but deliberately disregarded, those serious medical needs. Dulany v. Carnahan, 132 F.3d 1234,
1239 (8th Cir. 1997). Additionally, the Eighth Circuit has held that a “prisoner must show more
than negligence, more even than gross negligence, and mere disagreement with treatment decisions
does not rise to the level of a constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35,
37 (8th Cir. 1995). However, “‘Grossly incompetent or inadequate medical care can constitute
deliberate indifference, as can a doctor’s decision to take an easier and less efficacious course of
treatment.’” Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991) (quoting Smith v. Jenkins, 919
F.2d 90, 93 (8th Cir. 1990)). As Kelley notes, Plaintiff asserted in his complaint that medical
officials were unable to locate tools to adjust the dentures, and advised him to have the implants
removed. Although Plaintiff did not consent to the removal, his decision to not follow the medical
providers’ recommendation does not mean that Kelley was deliberately indifferent to his medical
needs. Kelley is not a medical provider, and had no role in devising Plaintiff’s treatment plan.
There is no allegation in Plaintiff’s complaint, or in his response to her motion, to suggest that
Kelley had any role in denying or delaying medical treatment. Accordingly, Kelley’s motion to
dismiss will be granted.
As part of his response to Kelley’s motion to dismiss, Plaintiff has moved to amend his
complaint to name as new Defendants Mrs. Asutin, a Cummins Unit case administrator, Dr.
Zoldessy, a dentist, and a John Doe dentist. Plaintiff’s motion to amend will be granted, and he may
proceed with his claims against Asutin, Zoldessy, and Doe. Plaintiff has also filed a motion for
summary judgment (docket entry #16) asserting that his dentures have now been fixed, and the only
issue remaining is his claim for damages.1 According to Plaintiff, the fact that the dentures were
fixed shortly after he filed his lawsuit demonstrates that medical providers were not really interested
in fixing the problem. Because Plaintiff’s motion offers only conclusory allegations against
unnamed parties, it must be denied. Furthermore, a motion for summary judgment is premature at
this point, as neither Asutin, Zoldessy, nor Doe, have been served with, or responded to, Plaintiff’s
Plaintiff originally sought an order directing the ADC to find the appropriate tool to tighten
his dentures, as well as damages.
IT IS THEREFORE ORDERED THAT:
The motion to dismiss filed by Defendant Wendy Kelley (docket entry #7) is
GRANTED, Plaintiff’s claims against Kelley are DISMISSED WITH PREJUDICE, and Kelley’s
name is removed as a party Defendant.
Plaintiff’s motion to amend (docket entry #12) is GRANTED, and the Clerk is
directed to add as Defendants Asutin, Zoldessy, and Doe.
Service is appropriate for appropriate for Asutin and Zoldessy, and the United States
Marshal is directed to serve a copy of the complaint (docket entry #2), amendment (docket entry
#12), this order, and summons, upon them, without prepayment of fees and costs or security therefor.
Plaintiff’s motion for summary judgment (docket entry #16) is DENIED.
DATED this 30
day of November, 2011.
UNITED STATES MAGISTRATE JUDGE
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