Stuart v. Advanced Correctional Care et al

Filing 102

MEMORANDUM AND ORDER ENTERED: Defendants Advanced Correctional Healthcare, Inc. and Annette Behney's Motion for Judgment on the Pleadings 90 is granted. Defendants Advanced Correctional Healthcare, Inc. and Annette Behney's Motion for J udgment 96 is denied as moot. Defendants Advanced Correctional Healthcare, Inc. and Annette Behney's Motion to Dismiss For Failure to Notify Parties and Court of Change of Address 99 is denied as moot. Signed by District Judge Daniel D. Crabtree on 01/17/18. Mailed to pro se party Joe C. Stuart, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOE C. STUART, JR.,
Plaintiff,
v.

Case No. 16-3097-DDC-KGG

ADVANCED CORRECTIONAL
HEALTHCARE, INC., et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Joe Stuart brings this action against defendants Advanced Correctional
Healthcare, Inc. and Annette Behney. Plaintiff asserts claims under 42 U.S.C. § 1983 and state
law against defendants for allegedly violating his right to medical care during his incarceration
with the Kansas Department of Corrections (“KDOC”) and in various county jails in Kansas.
This matter comes before the court on defendants Advanced Correctional Healthcare, Inc.
(“ACH”) and Annette Behney’s Motion for Judgment on the Pleadings and/or to Dismiss. Doc.
90. The court granted plaintiff an extension of time to file a response until September 29, 2017.
That deadline passed long ago, and plaintiff never has filed a response to defendants’ motion.
For the reasons explained below, the court grants defendants’ motion.
I.

Factual Background
The following facts are taken from plaintiff’s First Amended Complaint (Doc. 59) and

viewed in the light most favorable to him. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014).
The court construes plaintiff’s allegations liberally because he proceeds pro se. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (explaining that courts must construe pro se

filings liberally and hold them to a less stringent standard than formal pleadings drafted by
lawyers).
In March 2015, plaintiff was detained at the Leavenworth County Jail (“LVCO”). There,
he sustained a broken tooth accompanied by sore, bleeding gums and a fistula that actively
drained fluid into his mouth. After submitting a request to see a dentist, Nurse Melissa Doe
examined plaintiff. Nurse Doe informed plaintiff that dentists visited the facility once a month
and she would add his name to the list of inmates scheduled to see the dentist during his next
visit. She advised plaintiff that jail policy prevented plaintiff from receiving dental procedures at
the facility because the jail lacked a sterile environment necessary to perform them. She told
plaintiff that he would not receive dental procedures until he was transported to a facility that
could provide such treatment. To treat the infection, Nurse Doe prescribed plaintiff a ten day
course of antibiotics, three days of ibuprofen, and peroxide rinses.
In May, plaintiff met with a dentist identified as John Doe. The dentist examined
plaintiff and identified a cavity, two broken teeth, a draining fistula, and an infection. Dr. Doe
asked how long plaintiff was expected to be detained at LVCO. Plaintiff replied, predicting until
the end of the year. Dr. Doe told plaintiff that he could wait until he was transferred to the next
facility to have his broken teeth extracted. The doctor prescribed a ten day course of antibiotics,
three days of ibuprofen, and peroxide rinses.
In September 2015, plaintiff was transferred to the El Dorado Correctional Facility
(“EDCF”) in El Dorado, Kansas. In November 2015, Dr. Streit examined plaintiff at EDCF. He
performed an emergency extraction of plaintiff’s two worst teeth. The dentist claimed that one
of the teeth had been neglected for so long that it had decayed beyond the point of saving the

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tooth. Dr. Streit advised plaintiff to seek medical attention immediately should he encounter
more pain, swelling, fever, or other symptoms.
On December 2, 2015, plaintiff was transported to the Atchison County Jail to appear for
a court hearing. Plaintiff requested a dentist on January 1, 2016, because he had severe pain and
swelling near a tooth on the lower right side. The jail guard, Officer Harmon, advised plaintiff
that no medical staff was on duty because of the holiday. Officer Harmon gave plaintiff a threeday prescription for ibuprofen. The next day, plaintiff again requested to see a dentist because of
increased swelling and significantly increased pain from the previous day. Officer Harmon
informed plaintiff that no medical staff was on duty because it was the weekend, but a nurse
would be in the facility on Monday, January 4, 2016. Officer Harmon also called Nurse
Practitioner Annette Behney, an employee of ACH.1 Defendant Behney prescribed plaintiff with
antibiotics, ibuprofen, and peroxide.
On January 3, 2016, plaintiff requested medical attention complaining of blurred vision,
increased heart rate, chest pain, and an increase in pain and swelling. Officer Harmon performed
a cursory examination and noted an abnormally high blood pressure. Plaintiff requested to be
taken to an emergency room. Officer Harmon denied the request and stated that a nurse would
be available the next morning.
The next day, Nurse Martin (an ACH employee) examined plaintiff. She noted a blister
on plaintiff’s gums, and she denied plaintiff’s request for a dentist to remove his problem tooth.
On January 4, Nurse Martin examined plaintiff again and noticed foreign matter protruding from
his gums, but she took no further action. By January 8, the swelling had subsided some, but
there was still considerable pain and swelling. Plaintiff states that he could feel foreign mater

1
Plaintiff alleges that ACH is a private corporation who contracted with the Atchison County Jail
to provide medical care and services to inmates.

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protruding from the swollen gum area. Nurse Martin responded that she could see something
there, but took no further corrective action. Plaintiff received no more medical attention during
the rest of his time spent at the Atchison County Jail.
Plaintiff was sentenced in the District Court of Atchison County, Kansas on December
28, 2016. He was returned to KDOC custody on January 19, 2016, and transferred to the Norton
Correctional Facility. On January 25, 2016, while still incarcerated at Norton, Dr. Streit
performed a second emergency extraction to remove plaintiff’s broken tooth. He also repaired
the fistula.
On July 26, 2017, defendants filed a Motion to Dismiss/For Judgment on the Pleadings
for Failure to State a Claim under Fed. R. Civ. P. 12(c) (Doc. 90). Plaintiff filed a Motion for
Extension of Time to File a Response to defendants’ motion (Doc. 92). The court granted
plaintiff’s Motion for Extension of Time to File a Response (Doc. 94), allowing him until
September 29, 2017 to file his response. On October 11, 2017, 13 days after plaintiff’s new
deadline had expired, defendants filed a Motion for Judgment on the Pleadings (Doc. 96)
because plaintiff failed to respond timely to defendants’ motion. Plaintiff never responded to
that motion. Also, plaintiff still has never filed a response to defendants’ original motion seeking
judgment on the pleadings.
II.

Legal Standard
When a party brings a lawsuit pro se, the court construes the party’s pleadings liberally

and holds them to a less stringent standard than formal pleadings drafted by lawyers. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court does not assume the role of a pro
se litigant’s advocate. Id. Also, plaintiff’s pro se status does not excuse him from “the burden of
alleging sufficient facts on which a recognized legal claim could be based.” Id. Nor is plaintiff

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relieved from complying with the rules of the court or facing the consequences of
noncompliance. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).
Courts evaluate a Fed. R. Civ. P. 12(c) motion for judgment on the pleadings under the
same standard as a Rule 12(b)(6) motion to dismiss. See Turner v. City of Tulsa, 525 F. App’x
771, 772 (10th Cir. 2013). The court will grant a motion for judgment on the pleadings only
when the factual allegations in the complaint fail to “state a claim for relief that is plausible on its
face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is
dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). “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)
(citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for
these claims.’” Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009) (quoting
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
III.

Analysis
The court grants defendants’ Motion for Judgment on the Pleadings for two reasons: (1)

plaintiff never has responded to the motion, even after securing an extension of time to file one,
making defendants’ motion an uncontested one, and (2) plaintiff’s First Amended Complaint
(“Complaint”) fails to state a plausible claim for relief against defendants ACH and Behney. The
court explains its ruling below.

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A. Plaintiff’s failure to respond to defendants’ Motion for Judgment on the
Pleadings makes the motion an uncontested one.
As noted above, the court granted plaintiff’s Motion for Extension of Time to File a
Response to defendants’ Motion for Judgment on the Pleadings—ordering that his response was
due by September 27, 2017. Doc. 94. But, plaintiff never complied with this new deadline. The
new response deadline has long passed and still, plaintiff never has filed a response to
defendants’ motion. D. Kan. Rule 7.4(b) provides: “a party or attorney who fails to file a
responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the
right to later file such brief or memorandum” absent a showing of excusable neglect. “If a
responsive brief or memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements,
the court will consider and decide the motion as an uncontested motion.” D. Kan. Rule 7.4(b).
“Ordinarily, the court will grant the motion without further notice.” Id.
The court recognizes that plaintiff brings this action pro se, but a plaintiff’s pro se status
does not excuse him from complying with the court’s rules or facing the consequences of
noncompliance. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Thus, as a consequence of plaintiff’s failure to
respond, even after this court granted plaintiff’s Motion for Extension of Time to File a
Response, the court considers the motion an uncontested one under D. Kan. Rule 7.4(b). For this
reason and the reasons below, the court grants defendants’ Motion for Judgment on the
Pleadings.
B. Plaintiff’s Complaint fails to state a plausible claim against defendants.
While the court properly can grant defendants’ motion because it is uncontested, the court
also addresses the merits of their motion. The merits analysis leads to the same conclusion: The
court should grant defendants’ motion.
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Defendants assert several arguments supporting dismissal of plaintiff’s claims. First,
defendant Behney argues that plaintiff never alleges facts establishing a violation of an Eighth
Amendment right. Second, defendant ACH argues that plaintiff has failed to state a claim
against it in its official capacity. Third, defendants argue, plaintiff’s Complaint fails to establish
a plausible state law tort claim. The court addresses these three arguments in the following three
subsections.
1. Plaintiff’s Complaint fails to allege that defendants deprived plaintiff of
any constitutional right.
Plaintiff’s Complaint fails to allege facts sufficient to show a violation of his Eighth
Amendment constitutional rights. To allege that a defendant has violated a clearly established
Eighth Amendment right, plaintiff must allege facts that a prison official acted with “deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). This test
“involves both an objective and a subjective component.” Mata v. Saiz, 427 F.3d 745, 751 (10th
Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).
The objective component requires plaintiff to allege that the deprivation at issue was
sufficiently serious. Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980). This standard requires
that the actions of the defendant “must result in the denial of the minimal civilized measure of
life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical or dental need is
sufficiently serious “if it is one that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Ramos, 639 F.2d at 575.
The subjective prong requires that the prisoner allege that the official was deliberately
indifferent to a serious medical need. Farmer, 511 U.S. at 834. This requires the prison official
to have a culpable mental state. Id. A plaintiff sufficiently alleges a culpable mindset when the
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facts alleged show that a prison official “knows of and disregards 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 serious harm exists, and he must also draw the inference.” Id. at
837.
a. Objective Component
Here, plaintiff’s Complaint never alleges facts that, if true, are capable of supporting an
inference that his condition was objectively serious. The Complaint asserts that Dr. Doe told
plaintiff that he could wait until he was transported to his next facility to have his procedures
performed. No other doctors mandated extraction of teeth. When plaintiff arrived at the
Atchison County Jail, he first requested a dentist for tooth pain and swelling on January 1, 2016.
On January 4, within three days of plaintiff’s initial request, a nurse examined him at the facility.
In the meantime, on the same day he made his request to see a dentist, Officer Harmon gave
plaintiff ibuprofen for his pain and swelling. The following day, Saturday, January 2, Officer
Harmon facilitated a phone consultation between plaintiff and defendant Behney, who prescribed
antibiotics. On Monday, January 4, plaintiff met with a nurse to discuss his dental concerns.
The nurse noted a blister on plaintiff’s gums, but denied his request to extract one of his teeth.
Four days later, plaintiff again consulted with a nurse to address his symptoms. The nurse noted
foreign matter protruding from plaintiff’s gum, but determined that plaintiff’s dental condition
required no other action than the treatment already prescribed. Accepting all of plaintiff’s
allegations as true, these facts cannot support a finding that plaintiff suffered an objectively
serious medical condition while detained at the Atchison County Jail.
Plaintiff’s Complaint also appears to allege that officials at the Atchison County Jail,
including defendant Behney, should have provided him different treatment. But, a disagreement

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about procedures or prescribed treatment is not a proper basis to support a constitutional claim.
Perkins v. Kan. Dep’t. of Corr., 165 F.3d 803, 811–12 (10th Cir. 1999) (explaining that a
prisoner who disagrees with the treatment prescribed does not state a constitutional violation). A
prisoner’s belief that he should have received more care or a different form of treatment does
not, under the Eighth Amendment, require a prison official to provide the requested treatment.
Taylor v. Ortiz, 410 F. App’x 76, 79 (10th Cir. 2010). Accepting plaintiff’s allegations as true,
he received treatment from defendant Behney for his alleged dental condition. Defendant
Behney inspected his teeth, and she provided peroxide and medication. He simply disagrees
with the procedures she selected. Plaintiff’s Complaint thus fails to meet the objective
component of an Eighth Amendment constitutional violation.
b. Subjective Component
The subjective prong requires the prisoner to allege that the official was deliberately
indifferent to a serious medical need. Farmer, 511 U.S. at 834. This requires the prison official
to have a culpable mental state. Id. A plaintiff sufficiently alleges a culpable mindset when he
alleges facts showing that a prison official “knows of and disregards 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 serious harm exists, and he must also draw the inference.” Id. at
837.
Plaintiff’s Complaint makes the conclusory allegation that defendant Behney knew of
and disregarded the excessive risk to the plaintiff’s safety. But the Supreme Court has
emphasized that artfully worded conclusions won’t carry the day. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (explaining that “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” to state a plausible claim). Also, the

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facts alleged in the Complaint don’t support this conclusory assertion. Instead, the Complaint’s
alleged facts establish defendant Behney provided antibiotics, ibuprofen, and peroxide to treat
the patient’s dental pain. Defendant Behney knew plaintiff was in pain, but no facts alleged
suggest that a substantial risk to plaintiff’s safety existed. Plaintiff thus has alleged no facts
showing that defendant Behney was aware of an excessive risk to plaintiff’s safety.
2. Plaintiff’s Complaint fails to state a claim against defendant ACH in its
official capacity.
Plaintiff’s Complaint fails to assert official capacity claims against ACH because plaintiff
never alleges that an official policy or custom caused plaintiff’s injury.
A private healthcare company who contracts to provide medical services to prison
inmates may be sued under 42 U.S.C. § 1983. West v. Akins, 487 U.S. 42, 54 (10th Cir. 1988).
Thus, a nongovernmental provider of prison medical care may incur liability for violating a
prisoner’s Eighth Amendment rights. Id. But supervisory liability is not an available cause of
action for prisoners suing medical providers. City of Canton v. Harris, 489 U.S. 378, 385
(1989). Instead, to succeed on a claim against defendant ACH, plaintiff must show that ACH
had adopted or regularly applied a policy, custom, or official action that caused plaintiff’s
injuries. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 695 (1978). And, the
Complaint must assert that the policy was a “direct cause” or “moving force” behind the
constitutional violations. Id.
Here, plaintiff alleges in conclusory fashion that defendant ACH had a policy of
deliberately ignoring dental needs of patients. But, a claim for relief demands more than “[a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action’” which, as the Supreme Court explained, “‘will not do.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare
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recitals of elements of a cause of action, supported by mere conclusory statements, do not
suffice” to state a claim for relief. Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting
Iqbal, 556 U.S. at 678).
Plaintiff never alleges facts supporting the conclusory allegations made against defendant
ACH. Simply, he alleges that “per policy” a dentist would not be made available over the
holiday weekend and that ACH has a policy of “deliberate indifference by denying or delaying
prisoner’s access to necessary dental treatment.” But plaintiff alleges that he had access to
nurses and prison officials who repeatedly gave him antibiotics, ibuprofen, and treated him
multiple days in a row. So, reciting bald conclusory statements does not establish that defendant
ACH had an official policy that was the moving force behind his injuries.
3. Plaintiff’s Complaint fails to state a negligence claim against
defendants.
Last, the Complaint alleges defendants were negligent because they delayed plaintiff’s
access to dental care. To state an actionable claim of negligence in Kansas, the plaintiff must
allege that the defendants he has sued owed him a duty, a breach of that duty, injury, and a causal
link between the duty breached by the defendant and the injury suffered. McGee v. Chalfant,
806 P.2d 980, 983 (Kan. 1991). To provide a basis for the requisite causation, the plaintiff must
allege that the defendant’s actions are the proximate and actual cause of the plaintiff’s injury.
Baker v. City of Garden City, 731 P.2d 278, 280 (Kan. 1987). The Complaint here alleges that
defendant Behney failed to take appropriate steps to secure a dental appointment for plaintiff and
that this delay caused significant injury. But, the Complaint alleges no facts, other than
conclusions, that could support a finding that defendants breached a duty owed to plaintiff and
that this breach caused plaintiff injury.

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The court recognizes that the Federal Rules allow a party to amend the Complaint by
leave of court or with the written consent of the opposing party, and that it freely should grant
leave when justice so requires. Fed. R. Civ. P. 15(a). But, the court already has afforded
plaintiff the opportunity to amend his Complaint once, and his Amended Complaint (Doc. 59)
still fails to plead “factual content” that allows the court to “draw the reasonable inference that
defendants are liable” for this state claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Also,
plaintiff never has responded to defendants’ Motion for Judgment on the Pleadings. So, the
court declines to provide another opportunity to allege facts that could support a plausible
negligence claim against defendants. Instead, the court grants defendants’ Motion for Judgment
on the Pleadings against plaintiff’s negligence claim.
IV.

Conclusion

In sum, the court grants defendants’ Motion for Judgment on the Pleadings for two
reasons. First, plaintiff never has responded to defendants’ motion, making it an uncontested
motion. Second, plaintiff fails to state a plausible claim for relief against defendants ACH and
Annette Behney. The court thus grants defendants’ Motion for Judgment on the Pleadings.2
IT IS THEREFORE ORDERED BY THE COURT THAT defendants Advanced
Correctional Healthcare, Inc. and Annette Behney’s Motion for Judgment on the Pleadings (Doc.
90) is granted.

2
On December 8, 2017, defendants ACH and Annette Behney filed a Motion to Dismiss for
Failure to Notify Parties and Court of Change of Address. Doc. 99. Defendants assert that plaintiff has
not updated his information with the court to provide his current address. Defendants explain that they
and the court have attempted to serve documents on plaintiff at his address on file with the court, but the
documents have been “returned to sender.” Defendants thus ask the court to dismiss the case as a
sanction for plaintiff’s failure to notify the court and the parties of his current address. Because the court
grants defendants’ Motion for Judgment on the Pleadings, it denies defendants’ Motion to Dismiss as
moot.

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IT IS FURTHER ORDERED THAT defendants Advanced Correctional Healthcare,
Inc. and Annette Behney’s Motion for Judgment (Doc. 96) is denied as moot.
IT IS FURTHER ORDERED THAT defendants Advanced Correctional Healthcare,
Inc. and Annette Behney’s Motion to Dismiss For Failure to Notify Parties and Court of Change
of Address (Doc. 99) is denied as moot.
IT IS SO ORDERED.
Dated this 17th day of January, 2018, at Topeka, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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