King et al v. United States of America et al

Filing 48

MEMORANDUM AND ORDER granting in part and denying in part 25 DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT; granting 39 MOTION TO DEFER RULING ON DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. Defendant Maye is dismissed from this lawsuit. Defendants' Motion for Summary Judgment is denied without prejudice. Signed by District Judge Eric F. Melgren on 9/27/2017. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

OTIS L. BRADLEY, JR., Deceased,
By and Through TIMOTHY KING,
Special Administrator, and
LaTASHA BRADLEY, Heir of Decedent,
Plaintiffs,

vs.

Case No. 16-1435-EFM-TJJ

UNITED STATES OF AMERICA, DR.
KRISTINE AULEPP, AMBER
MCCAFFERTY, DR. JASON CLARK,
JASON TROLL, JUSTIN ALEXANDER,
CLAUDE MAYE, JANE DOE & JOHN
DOE,
Defendants.

MEMORANDUM AND ORDER
Otis Bradley, Jr., by and through Timothy King, special administrator of his estate, and
LaTasha Bradley, Otis Bradley’s wife and heir, bring this suit against the United States of
America, Dr. Kristine Aulepp, Amber McCafferty, Dr. Jason Clark, Jason Troll, Justin
Alexander, Claude Maye, and two unknown individuals for failing to provide adequate medical
care to Bradley while he was incarcerated at the United States Penitentiary in Leavenworth,
Kansas (“USP Leavenworth”). Plaintiffs assert four claims in their Amended Complaint: (1) a
Bivens claim for violation of Bradley’s Eighth Amendment rights; (2) a wrongful death claim

under the Federal Tort Claims Act (“FTCA”); (3) a survival claim for personal injuries under the
FTCA; and (4) a breach of duty to provide reasonable care under the FTCA.
In response to Plaintiffs’ Amended Complaint, Defendants filed a Motion to Dismiss, or
in the Alternative, Motion for Summary Judgment (Doc. 25).1

Plaintiffs responded to

Defendants’ motion, but also filed a Motion to Defer Ruling on Defendants’ Motion to Dismiss,
or in the Alternative, Motion for Summary Judgment (Doc. 39) under Federal Rule of Civil
Procedure 56(d). Because Defendants’ motion is a hybrid motion, the Court will first consider
its Motion to Dismiss. As explained below, the Court grants in part and denies in part this
motion. Then, the Court will turn to Plaintiffs’ motion under Rule 56(d) to defer ruling on the
summary judgment aspect of Defendants’ motion. Because the Court concludes that it should
grant this motion, it denies Defendants’ motion for summary judgment without prejudice.
I.

Factual and Procedural Background2

Otis Bradley was incarcerated at USP Leavenworth from mid-2014 through early 2015 as
a result of his conviction in the United States District Court for felon in possession of a firearm.
Defendant Dr. Aulepp conducted an initial health screen for Bradley on May 21, 2014. The
results did not indicate that he was ill or had any congenital diseases. Another USP Leavenworth
employee conducted a health screen on Bradley on June 3, 2014, which also showed no chronic
health issues.

1

The Court disfavors hybrid motions such as the one Defendants filed because the standard governing a
motion to dismiss is drastically different from the standard governing a motion for summary judgment. Indeed,
Defendants’ give lip service to its Fed. R. Civ. P. 12(b)(6) motion by stating in a footnote that Plaintiffs have not
alleged a violation of a constitutional right and combining their arguments concerning Plaintiffs’ allegations in the
same section as those referring to evidence outside the Amended Complaint.
2

In accordance with the standards governing Rule 12(b)(6) motions, the factual background is taken from
Plaintiffs’ Amended Complaint and accepted as true.

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In early December 2014, Bradley was placed in solitary confinement or “SHU” after he
exchanged words with a corrections officer. On December 15, he collapsed in his cell. He was
transferred to St. Luke’s Cushing Hospital in Leavenworth, Kansas, where he presented with
abdominal pain, facial and hand numbness, drooling, and eye twitching. His lab results were
abnormal. Dr. Christopher Warholic reported: “Discuss with jail medical need for further
evaluation such as neurology evaluation or possible need for holter monitor.” On December 16,
Bradley was transported back to USP Leavenworth. In a follow-up appointment with Defendant
Aulepp, she noted: “No further intervention needed.”
Bradley’s health continued to deteriorate throughout December without further
intervention from Defendant Aulepp, other Leavenworth medical personnel, or corrections
workers. In addition, he continued to have contact with Defendants McCafferty, Alexander,
Clark, and Troll, all of whom are medical personnel at USP Leavenworth, from December 16
through January 11, 2015. Plaintiffs allege that none of these individuals provided sufficient
care to ensure that Bradley’s condition was appropriately treated after his hospitalization.
Plaintiffs also allege that Defendant Maye, the warden at USP Leavenworth during the relevant
time period, did not ensure that Bradley’s condition was treated appropriately.
Bradley continued to be ill during January 2015. From January 4 to January 11, he did
not eat due to extreme abdominal pain, nausea, and vomiting. USP Leavenworth personnel did
not perform an evaluation. As of January 11, 2015, Bradley had been ill for almost a month. He
had lost 20 pounds, was nauseous for many days, and had not had a bowel movement in over a
week.
On January 11, 2015, Otis reported to the prison medical clinic with blood in his vomit
and extreme abdominal pain. He was transported to St. Luke’s Cushing Hospital, where he was

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diagnosed with gallstones, pancreatitis, and diabetes. The next day, he was transferred to St.
Luke’s Hospital in Kansas City, Missouri. He remained there until his death from pancreatitis on
February 6, 2015. Bradley’s family was notified on February 4 that he was on life support and
they needed to come to the hospital to “make decisions.” Until that time, his family did not
know that he was ill. Plaintiff alleges that Bradley was allowed to become so ill at USP
Leavenworth that his condition upon arrival at the hospital prevented any treatment from being
effective.
Following Bradley’s death, Plaintiffs filed a Freedom of Information Act (“FOIA”)
Request attempting to obtain prison records related to his death. The Bureau of Prisons (“BOP”)
responded to Plaintiffs’ request on December 9, 2015, proving 299 pages of documents released
in full and 18 pages released with some redactions. The BOP withheld 29 documents in their
entirety.

The BOP maintains that Plaintiff received the majority of documents related to

Bradley, including his Inmate Central File, his medical file, and his Psychology File. Plaintiffs
maintain that while some of these documents were helpful, Plaintiffs had already received many
of them from St. Luke’s Hospital, and others did not specifically address the issues involved in
the case.
On May 12, 2016, Plaintiffs’ counsel filed an administrative demand under the FTCA
and served the demand on the BOP. The 180 day deadline for BOP to investigate the claim
expired on November 22, 2016, without any documents being provided.
Plaintiffs filed this lawsuit on December 15, 2016, against Defendants United States, Dr.
Aulepp, and two unknown individuals. On February 16, 2017, Plaintiffs filed an Amended
Complaint. Using information from the documents produced in response to the FOIA request,
Plaintiffs added McCafferty, Dr. Clark, Troll, Alexander, and Maye as Defendants. Plaintiffs’

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Amended Complaint asserts a Bivens claim against the six individual Defendants for violation of
his Eighth Amendment rights and three tort claims against the United States under the FTCA. In
response, Defendants filed a Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment arguing that the individual Defendants are entitled to qualified immunity and that
Plaintiffs did not administratively exhaust certain aspects of their FTCA claims. Plaintiffs
responded to Defendants’ motion, and also filed a Motion to Defer Ruling on Defendants’
Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. Plaintiffs argue that
they do not have sufficient facts to justify its opposition to Defendants’ summary judgment
motion. Defendants then filed a Motion to Stay Discovery, which the Court denied. In this
Order, Magistrate Judge James specifically noted that Plaintiffs may conduct discovery limited
to the threshold issue of qualified immunity and on matters bearing on Defendants’ Motion to
Dismiss, or in the Alternative Motion for Summary Judgment. The docket does not indicate
whether the parties have conducted any discovery since this Order.
II.
A.

Defendants’ Motion to Dismiss

Legal Standard
Under Rule 12(b)(6), a defendant may move for dismissal of any claim where the

plaintiff has failed to state a claim upon which relief may be granted. Upon such motion, the
court must decide “whether the compliant contains ‘enough facts to state a claim to relief that is
plausible on its face.’ ”3 “[T]he mere metaphysical possibility that some plaintiff could prove
some set of facts in support of the pleaded claims is insufficient; the complaint must give the
court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support
3

Ridge at Red Hawk, LLC v. Schneider, 493, F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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for these claims.”4 “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint
alone is legally sufficient to state a claim for which relief may be granted.”5 In determining
whether a claim is facially plausible, the court must draw on its judicial experience and common
sense.6 All well-pleaded facts in the complaint are assumed to be true and are viewed in the light
most favorable to the plaintiff.7 Allegations that merely state legal conclusions, however, need
not be accepted as true.8
Under Rule 12(b)(1), a court may dismiss a complaint based on lack of jurisdiction over
the subject matter of the complaint. Because federal courts are courts of limited jurisdiction,
they presume a lack of jurisdiction.9 Plaintiffs bear the burden of alleging sufficient facts to
overcome this presumption.10
B.

Analysis
Defendants ask the Court to dismiss Plaintiffs’ claims for two reasons. First, Defendants

argue that Plaintiffs’ Bivens claim should be dismissed for failure to state a claim upon which
relief can be granted because they are entitled to qualified immunity and Plaintiffs’ Amended
Complaint does not state that Defendants violated a constitutional right. Second, Defendants
argue that the Court does not have subject matter jurisdiction over certain aspects of Plaintiffs’
4

Ridge at Red Hawk, 493 F.3d at 1177.

5

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003).

6

Iqbal, 556 U.S. at 678.

7

See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).

8

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

9

Marcus v. Kan. Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999).

10

Id.

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FTCA claims because Plaintiffs did not fully exhaust their administrative remedies. The Court
will consider each of these arguments below.
1.

Failure to State a Claim

Plaintiffs allege Defendants Aulepp, Clark, Maye, McCafferty, Alexander, and Troll
violated Bradley’s Eighth Amendment right to be free from cruel and unusual punishment due to
inadequate medical care. In response, Defendants assert the defense of qualified immunity.
Summary judgment is the “typical vehicle” for asserting a qualified immunity defense, but the
Court will also review it on a motion to dismiss.11 When a defendant asserts a qualified
immunity defense in a motion to dismiss, the defendant subjects himself to a more challenging
standard of review.12

This standard requires the plaintiff to plausibly allege that (1) the

defendant deprived the plaintiff of a constitutional right; and (2) that right was clearly established
at the time.13 The court may consider either prong of this two-part inquiry in any order.14 If one
aspect is not satisfied, then qualified immunity is appropriate and no further inquiry need be
undertaken.15
a.

Whether There Was a Violation of a Constitutional Right

The Eighth Amendment protects prisoners from “deliberate indifference to serious
medical needs.”16 Prison guards and doctors may thus be held liable for “indifference . . .

11

Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004).

12

Choate v. Lemmings, 294 F. App’x 386, 391 (10th Cir. 2008) (citing Petersen, 371 F.3d at 1201)).

13

Petersen, 371 F.3d at 1202.

14

Pearson v. Callahan, 555 U.S. 223, 242 (2009).

15

See id. at 242, 244 (analyzing only whether the defendants violated clearly established law).

16

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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manifested . . . in their response to the prisoner’s needs or by . . . intentionally denying or
delaying access to medical care or intentionally interfering with treatment once prescribed.”17
To state a denial of medical care claim, a plaintiff must satisfy an objective and
subjective component.18

Under the objective component, the plaintiff must allege that the

deprivation was sufficiently serious.19 “[A] medical need is sufficiently serious if it is one . . .
that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.”20 Under the subjective component, the plaintiff must allege that the prison official
was deliberately indifferent to a serious medical need.21

A plaintiff sufficiently alleges a

culpable mindset when the facts alleged show that the prison “official acted or failed to act
despite his knowledge of a substantial risk of serious harm.”22 In other words, a prison official
acts with a culpable state of mind when he “knows of and disregards an excessive risk to inmate
health or safety.”23 “[T]he official must be both aware of the facts from which the inference
could be drawn that substantial risk of serious harm exists, and he must also draw the
inference.”24
i.

Defendants Aulepp, McCafferty, Alexander, Troll, and Clark

17

Id. at 104-05.

18

Estate of Booker v. Gomez, 745 F.3d 405, 430 (10th Cir. 2014).

19

Id. (quoting Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)).

20

Id.

21

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

22

Id. at 842.

23

Id. at 837.

24

Id.

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Plaintiffs’ Amended Complaint alleges sufficient facts to state an Eighth Amendment
claim against Defendants Aulepp, McCafferty, Alexander, Troll, and Clark. With regard to the
objective component, Plaintiffs allege that Bradley requested medical treatment after returning to
USP Leavenworth from the hospital on December 16 until January 11, 2015. Plaintiffs allege
that during that period, Bradley was ill, lost 20 pounds, was nauseous for many days, and had not
had a bowel movement for over a week. Plaintiffs further allege that Defendants allowed
Bradley to grow so ill that despite St. Luke’s treatment of him for several weeks, he died.
Accepting Plaintiffs’ Amended Complaint as true, Bradley’s condition was sufficiently serious
that even a lay person in this situation would recognize the need for a doctor’s intervention.
Thus, Plaintiff has satisfied the objective component.
Plaintiffs’ allegations are not nearly as specific with regard to the subjective component,
but they are sufficient to state an Eighth Amendment claim against Defendants McCafferty,
Alexander, Troll, Clark, and Aulepp. Plaintiffs allege that (1) Defendants had contact with
Bradley from December 16 to January 11; (2) Bradley’s physical condition continued to
deteriorate from December 2014 to early January 2015; and (3) from January 4 through January
11, 2015, Bradley did not receive any medical treatment even though he was not eating and
suffering extreme abdominal pain, nausea, and vomiting. Plaintiffs further allege that these
Defendants did not provide any treatment to Bradley until he began repeatedly vomiting on
January 11. In addition, with regard to Defendant Aulepp, Plaintiffs allege that she did not
follow up on Dr. Warholic’s notes that Bradley needed further evaluation after returning from
the hospital on December 16 and that she did not further evaluate or treat Bradley when his
condition continued to worsen during December 2014. Plaintiffs have sufficiently alleged that

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Defendants knew of Bradley’s medical condition and disregarded it. Therefore, they have
satisfied the subjective component of an Eighth Amendment claim.
ii.

Defendant Maye

Plaintiffs’ Amended Complaint does not allege sufficient facts to state an Eighth
Amendment claim against Defendant Maye.

Defendant Maye was the warden at USP

Leavenworth at the time of Bradley’s incarceration. As warden, he is not liable for any of the
alleged constitutional violations of his employees under the doctrine of respondeat superior.25
Indeed, to hold a Defendant Maye liable under Bivens, the Eighth Amendment violation must be
traceable to Defendant Maye’s own actions.26 Here, Plaintiffs do not allege that Bradley advised
Defendant Maye of his medical condition or any issue concerning his medical care. Instead,
Plaintiffs merely assert that Maye failed to assist Bradley and that he was deliberately indifferent
to Bradley’s need for medical care. These conclusory allegations do not satisfy the subjective
component of an Eighth Amendment claim. Thus, Defendant Maye is entitled to qualified
immunity and is dismissed from this lawsuit.
b.

Whether the Constitutional Right Was Clearly Established

The Court will defer ruling on the second prong of the qualified immunity analysis until
it addresses Defendants’ motion for summary judgment. The only argument Defendants make in
their motion to dismiss is that Plaintiffs have not sufficiently alleged that Defendants violated a
constitutional right.

Furthermore, when addressing this prong of the qualified immunity

analysis, both parties refer to documents outside the pleadings in their arguments. Therefore, the
Court declines to address this portion of the qualified immunity analysis at this time.
25

Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 676).

26

Id.

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2.

Failure to Exhaust Administrative Remedies

Defendants move for the dismissal of all claims Plaintiffs asserted under the FTCA that
were not administratively exhausted through Administrative Claim No. TRT-NCR-2016004492.
Specifically, the United States argues that Plaintiffs have not exhausted their claims related to
paragraphs 48-49 and 80(e) of the Amended Complaint. Paragraphs 48 and 49 allege that USP
Leavenworth staff advised Bradley’s family that they were not allowed to notify families about
an inmate’s severe medical illness until the inmate was dead and that Defendant Maye
supervised the correctional officers and implemented the policy that prevented families from
having contact with an inmate when suffering life threatening injuries and illnesses. Paragraph
80(e) alleges that the United States breached a duty to provide reasonable care by failing to
properly instruct, supervise, train, or control corrections officers to communicate health related
emergencies, observe and report on medical conditions, and provide information to medical staff
in a timely manner for proper medical care of inmates. In response, Plaintiffs argue that its
administrative claim provided sufficient notice to the United States of the facts and
circumstances underlying their claims.
The FTCA is a waiver of sovereign immunity that authorizes suits against the United
States for damages for certain torts committed by federal employees acting within the scope of
their employment.27 The FTCA generally provides that the United States is liable, to the same
extent as a private party, “for injury or loss of property, or personal injury or death caused by the

27

28 U.S.C. § 1346(b); Berkovitz v. United States, 486 U.S. 531, 535 (1988).

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negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment.”28
To bring a tort claim under the FTCA against the United States, that claim must be
presented to the appropriate federal agency and be finally denied by that agency.29 The filing of
an administrative claim is a jurisdictional requirement, and the failure to do so, leaves the Court
without subject matter jurisdiction.30 If a claim is not presented to the agency before a civil
judicial action is filed, the case must be dismissed.31
The Tenth Circuit applies a pragmatic test in determining whether an administrative
claim is sufficiently exhausted under the FTCA. This test asks “whether the claim’s language
serves due notice that the agency should investigate the possibility of particular (potentially
tortious) conduct.”32

In addition, “a claim should give notice of the underlying facts and

circumstances rather than the exact grounds upon which [the claimant] seeks to hold the
government liable.”33

“[T]he FTCA’s notice requirements should not be interpreted

inflexibly.”34
The Court first turns to the allegations in paragraphs 48 and 49 of the Amended
Complaint. As an initial matter, the Court notes that these allegations are not “claims” but facts

28

28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674.

29

28 U.S.C. § 2675(a); see also Morrison v. Kache, 576 F. App’x 715, 717 (10th Cir. 2014).

30

Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994).

31

Williams v. U.S. Post Office, 866 F. Supp. 1320, 1321 (D. Kan. 1994).

32

Staggs v. United States ex rel. Dept. of Health & Human Servs., 425 F.3d 881, 884 (10th Cir. 2005)
(quotation marks and citation omitted).
33

Id. (citing Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 853 (10th Cir. 2005)).

34

Estate of Trentadue, 397 F.3d at 853.

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relevant to Plaintiffs’ claims. The Court is not clear to which claim or claims these allegations
pertain, and the parties do not provide this information in their briefs. To the extent these facts
support Plaintiff’s survival claim under the FTCA, the Court concludes that they have been
administratively exhausted. Attached to Plaintiffs’ administrative complaint is a 19 page letter
setting forth the facts of the case, a summary of Plaintiffs’ claims, and the damages Plaintiffs
seek for Bradley’s death.

In the factual section of the letter, Plaintiffs state that USP

Leavenworth officials did not officially notify Bradley’s family that he was critically ill until
February 4, 2015—three and half weeks after he was transferred to the hospital. The facts
further state that because the Warden had not called them to inform them that Bradley could have
visitation, the family still believed at this time that he was in solitary confinement for
disciplinary problems. They were allegedly shocked when they arrived at the hospital to find
him in a coma, intubated, and brain dead. In the damages section of the letter, Plaintiffs state
that they will seek damages for Bradley’s conscious pain and suffering and emotional distress,
describing it as follows:
There is no question that [Bradley] felt conscious pain, suffered and endured an
extensive illness prior to succumbing to his pancreatitis caused by gall stones.
This aspect of the claim traumatizes his family the most. That as he lay dying in a
hospital bed, suffering from sepsis and other illnesses, he suffered alone, without
the comfort and care of his loved ones.
These statements are certainly not identical to paragraphs 48 and 49 in the Amended
Complaint. They do not specifically mention any policy that the Warden may or may not
enforce regarding when prison officials may notify families of an inmate’s illness. However,
they do allege that Bradley’s family was not notified by USP Leavenworth officials of his illness
until he was essentially in a coma and brain dead. This is sufficient to put the United States on
notice that Plaintiffs may bring a survival action under the FTCA based on any alleged pain and

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suffering Bradley experienced by suffering a prolonged illness and dying without his family by
his side.
To the extent the allegations in paragraphs 48 and 49 fall under paragraph 80(e) or
otherwise support Plaintiffs’ reasonable care claim, they have not been administratively
exhausted. Nothing in the letter attached to the administrative complaint indicates that there was
a policy that prevented USP Leavenworth guards from contacting an inmate’s family about a
severe medical illness. And nothing in the letter indicates that Defendant Maye implemented
this policy or supervised the correctional officers’ execution of it.
Looking solely at the allegations in paragraph 80(e), the Court concludes that they also
have not been administratively exhausted. Plaintiffs have failed to identify any language in their
letter indicating that Defendants failed to instruct, supervise, train, or control correctional
officers on a continuing basis to communicate health-related emergencies or to observe and
report on medical conditions and timely provide information to medical staff. Plaintiffs claim
that the letter goes into extreme detail outlining Bradley’s medical care and providing a timeline
of events relevant to Plaintiffs’ theories of liability. While this is true, nothing in the letter
mentions the possibility that Bradley’s injuries were caused by inadequate training and
supervision of USP Leavenworth staff.
Plaintiffs cite Bethel v. United States35 in support of their argument that the letter attached
to its administrative complaint contains sufficient information to put the government on notice of
its claims. But Plaintiff’s reliance on this case is misplaced as it actually supports Defendants’
argument that Plaintiffs did not administratively exhaust their claims. In Bethel, the Colorado

35

495 F. Supp. 2d 1121 (D. Colo. 2007).

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district court found that the plaintiff’s administrative claim, which centered around the alleged
negligent treatment of Bethel during surgery, did not put the government on notice of claims
related to negligent credentialing and monitoring of the doctor’s competency.36 The court found
the case to be analogous to the Tenth Circuit’s decision in Kikumura v. Osagie.37 In that case,
the Tenth Circuit concluded that a prisoner failed to exhaust administrative remedies for his
FTCA claim of “negligent failure to provide adequate training and supervision to staff” because
although his administrative claim alleged that he received negligent care while he was ill, it
“failed to mention the possibility that his injuries were caused by the inadequate training and
supervision of [prison] staff.”38
The court in Bethel also found the Tenth Circuit’s decision in Staggs v. United States39
instructive.40 In Staggs, “the plaintiff’s administrative claim alleged a ‘substantial departure
from the standard of care’ and ‘negligent management of her pregnancy [and] labor.’ ”41 The
Tenth Circuit concluded that the plaintiff’s administrative claim did not contain sufficient facts
to raise the possibility of lack of informed consent and thus the district court did not have
jurisdiction to hear the claim.42 The Tenth Circuit noted that “given the length and factual
specificity of [plaintiff’s] description of her claim without a mention of ‘consent’ or a suitable

36

Id. at 1124.

37

461 F.3d 1269 (10th Cir. 2006).

38

Bethel, 495 F. Supp. 2d at 1124 (quoting Kikumura, 461 F.3d at 1302) (internal quotation marks

omitted).
39

425 F.3d 881.

40

Bethel, 495 F. Supp. 2d at 1125.

41

Id. (quoting Staggs, 425 F.3d at 884).

42

Id. (citing Staggs, 425 F.3d at 885).

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synonym, [the agency] could have reasonably concluded that a claim of lack of informed consent
was not intended and that an investigation into lack of informed consent was not necessary.”43
Relying on this reasoning, the Bethel court similarly concluded that given the length and factual
specificity of the plaintiff’s administrative claim, the fact that there was no mention of facts
relating to the supervision, credentialing, or monitoring of the doctor could lead the government
to reasonably conclude that an investigation into these issues was unnecessary.44
Like the plaintiffs in Staggs and Bethel, Plaintiffs went into great detail in the letter
attached to their administrative claim regarding Bradley’s medical care. But, their letter does not
contain any language indicating that USP Leavenworth staff failed to instruct supervise, train, or
control corrections officers regarding communicating and reporting health-related emergencies
and medical conditions. Therefore, the BOP could not have reasonably concluded that an
investigation into these claims was necessary. As the court in Bethel noted, “[a]lthough the
FTCA’s notice requirements should not be interpreted inflexibly, neither should an
administrative claim place a federal agency on notice of every conceivable legal theory or cause
of action that could potentially be brought in relation to an injury described in that claim.”45
Plaintiffs failed to exhaust their administratively remedies with regard to the allegations
set forth in paragraph 80(e), and thus, the Court does not have subject matter jurisdiction over
them. In addition, to the extent the facts alleged in paragraphs 48 and 49 fall under paragraph
80(e), or otherwise support Plaintiffs’ breach of duty of reasonable care claim, the Court also
does not have subject matter jurisdiction over them. The Court notes that Plaintiffs’ breach of
43

Id. (quoting Staggs, 425 F.3d at 885).

44

Id. at 1125.

45

Id. (internal quotation marks and citations omitted).

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duty of reasonable care claim is not being dismissed in whole and that the Court continues to
have subject matter jurisdiction over the remaining allegations within this claim.
C.

Conclusion
Overall, the Court concludes that Plaintiffs have met their burden to sufficiently allege

the violation of Bradley’s Eighth Amendment rights with regard to Defendants Aulepp,
McCafferty, Clark, Troll, and Alexander. Plaintiffs have not met their burden with regard to
Defendant Maye. Therefore, Defendant Maye is entitled to qualified immunity and dismissed
from this case. With regard to Plaintiffs’ FTCA claims, the Court does not have subject matter
jurisdiction over paragraphs 80(e) or paragraphs 48 and 49 to the extent they support Plaintiffs’
breach of duty of reasonable care claim. The Court does have subject matter jurisdiction over
the remaining allegations in Plaintiffs’ breach of duty of reasonable care claim and paragraphs 48
and 49 to the extent they fall under Plaintiffs’ survival claim.
II.

Plaintiffs’ Motion to Defer Ruling on Defendants’ Motion for Summary Judgment
Plaintiffs ask the Court to defer ruling on Defendants’ Motion to Dismiss, or in the

Alternative, Motion for Summary Judgment under Rule 56(d). Under this rule, when a party
“shows by affidavit or declaration, that for specified reasons, it cannot present facts essential to
justify its opposition [to a motion for summary judgment], the court may: (1) defer considering
the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.”46 Defendants oppose Plaintiffs’ Rule 56(d) motion,

46

Fed. R. Civ. P. 56(d).

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arguing that Plaintiffs have not met their burden with regard to Defendants’ qualified immunity
defense.47
The Tenth Circuit imposes four requirements on a party seeking relief under Rule 56(d).
The party “must specify (1) the probable facts not available, (2) why those facts cannot be
presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional
time will enable [the party] to obtain those facts and rebut the motion for summary judgment.”48
This is not a high burden, and affidavits submitted under the rule “are entitled to liberal treatment
unless they are dilatory or meritless.”49 However, when a summary judgment motion is based on
qualified immunity, the party’s affidavit must also “demonstrate a connection between the
information he would seek in discovery and the validity of the [defendant’s] qualified immunity
assertion.”50
Magistrate Judge James recently issued an Order in this case regarding Defendants’
Motion to Stay Discovery. Recognizing that Plaintiffs have received no initial disclosures and
have only been provided the documents supporting Defendants’ dispositive motion, the Court
stated: “[A] court abuses its discretion when it stays discovery and prevents a party from having
a sufficient opportunity to develop a factual basis for defending against the [dispositive]

47

Defendants do not argue that Plaintiffs have not met their burden under Rule 56(d) with regard to their
FTCA claims. Therefore, the Court grants Plaintiffs’ motion with regard to these claims and will not explicitly
discuss them here.
48

Gutierrez v. Cobos, 841 F.3d 895, 908 (10th Cir. 2016) (quoting Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1249 (10th Cir. 2015)).
49

Jones v. City and Cnty. of Denver, Colo., 854 F.2d 1206, 1210 (10th Cir. 1988) (citing Patty Precision v.
Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984)).
50

Gutierrez, 841 F.3d at 908 (quoting Lewis v. City of Ft. Collins, 903 F.2d 752, 754 (10th Cir. 1990)).

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motion.”51 Judge James ultimately denied Defendant’s motion, explicitly stating that Plaintiffs
may “conduct discovery limited to the threshold issue of qualified immunity and on matters
bearing on Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment.”52 Although the Court reviews Plaintiffs’ motion under a different standard than a
motion to stay discovery, it agrees with Judge James that this is a case where the non-moving
party should be able to conduct discovery to adequately respond to a pending dispositive motion.
A.

Factor One: Whether or Not There Are Probable Facts Not Available
Plaintiffs claim that there are too many unknowns about what occurred during Bradley’s

incarceration to fully list the facts that are not currently available, but that they are aware of
general categories of information to which they do not have access. Plaintiffs further explain
that additional evidence would show that Defendants were deliberately indifferent to Bradley’s
medical condition because there is evidence that Defendants were aware his health was
deteriorating before January 11 and they did nothing about it. In response, Defendants argue that
“these general and conclusory references” do not satisfy Rule 56(d) and that the facts Plaintiffs
seek are speculative.
A party is not required to definitively prove the existence of facts sought to satisfy the
first factor.53 “All that is required is that the party seeking relief must provide some basis for the
court to believe the existence of facts sought is probable.”54 Here, Plaintiffs base their discovery
request on a medical record revealing that Bradley had not eaten and was vomiting eight days
51

Doc. 47, p. 8 (quoting Wolf v. United States, 157 F.R.D. 494, 494 (D. Kan. 1994)).

52

Id. at p. 9.

53

Crumpley v. Assoc. Wholesale Grocers, Inc., 2017 WL 1364839, at *7 (D. Kan. 2017) (citing Steven
Gensler, Federal Rules of Civil Procedure: Rules and Commentary Rule 56, Westlaw (Feb. 2017)).
54

Id. (internal quotation marks and citations omitted).

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before being transferred to the hospital. They have also provided eight different categories of
documents, including but not limited to Special Housing Unit Lieutenant Logs, correctional
officer notes, and incident reports related to Bradley’s December 2015 hospitalization, that they
believe would provide information regarding Bradley’s activities and health before his January
11 transfer to the hospital. Plaintiffs claim that these documents contain information allowing
them to controvert Defendants’ declarations that Bradley showed no sign of illness before
January 11. Finally, Plaintiffs argue that additional discovery would provide the names of
witnesses who may have relevant information, including those correctional officers who guarded
Bradley before his death.
Defendants argue that Bradley’s illness history, as reported in the record, is of
“questionable voracity” and that a single medical record stating that he reported vomiting for
eight previous days does not support an inference that Defendants were aware of his medical
condition before January 11. Defendants point to Dr. Aulepp’s declaration which shows that at
one point in early 2014, Bradley reported weight loss but then recanted on this condition at a
later date. Furthermore, Defendants’ sworn declarations state that Bradley did not raise any
issues to medical staff until January 11, when he reported generalized nausea, weakness, and
vomiting to Dr. Alexander. According to Defendants, a medical record of questionable accuracy
does not supply probable facts to overcome qualified immunity and subject them to discovery.
Contrary to Defendants’ argument, the fact that Bradley reported that he was vomiting for
eight days before January 11 supports an inference that Defendants may have been aware of his
condition and ignored it. Moreover, Defendants’ argument appears to ask the Court to weigh the
evidence and conclude that there is no evidentiary value in those records that support Plaintiffs’
claims. This is not the appropriate time for the Court to conduct such analysis.

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Plaintiffs have not set forth a concise list of facts they will use to overcome summary
judgment, but they have provided sufficient information for the Court to conclude that they have
satisfied the first factor. In addition to the medical record stating that Bradley was vomiting for
eight days prior to his hospitalization, Plaintiffs have provided an extensive list of documents
that they believe contains information concerning Bradley’s activities and health during his
incarceration and Defendants’ knowledge of his medical condition before his hospitalization.
Moreover, this does not seem to be the type of case where a precise list of probable facts is
available. Bradley is deceased. Plaintiffs have no other person or entity other than Defendants
from which to obtain information regarding what occurred during his incarceration.
Accordingly, the Court concludes that Plaintiffs have satisfied the first factor.
B.
Factors Two and Three: Why Those Facts Cannot Be Presented Currently and
What Steps Have Been Taken to Obtain Those Facts
Plaintiffs have explained in great detail why the facts they seek cannot be currently
presented and what steps they have taken to obtain those facts. No discovery has been conducted
in this case. When Plaintiffs moved for limited discovery before Defendants filed an Answer,
the Court denied their request. After Defendants filed their Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment, Defendants moved to stay all discovery. The Court
recently denied that motion, but the record indicates that the parties have not served any
discovery requests or Rule 26(a) disclosures.
In addition, Plaintiffs filed a FOIA request seeking all records connected with Bradley,
including any medical records, activity records, and documents prepared by Bradley, correctional
facility officers, personnel, social workers, and medical personnel. The Bureau of Prison’s
response was a partial release of records. Of the 319 pages that Plaintiffs received, 136 pages

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were records from St. Luke’s Hospital, which Plaintiffs were able to obtain on their own. Most
importantly, Bradley is deceased. He cannot controvert Defendants’ declarations with his side of
the events. Defendants are truly the only parties that have access to the information Plaintiffs’
seek.55 Therefore, the Court finds that Plaintiffs have satisfied the second and third factors.
C.
Factor Four: How Additional Time Will Enable the Plaintiffs to Obtain Facts and
Rebut the Motion for Summary Judgment
Plaintiffs seek additional time for the case to go through the normal discovery process
before responding to Defendants’ summary judgment motion. Plaintiffs claim that they need the
ability to work through discovery to appropriately determine what occurred between the time
Bradley returned from his first hospitalization on December 16 to the time he was transferred to
St. Luke’s hospital on January 11. The Court agrees. Because Defendants have asserted the
defense of qualified immunity, Plaintiffs must show that Defendants violated Bradley’s Eighth
Amendment rights. To meet this burden, Plaintiffs must present sufficient evidence to show a
genuine issue of material fact regarding whether Defendants were deliberately indifferent to
Bradley’s medical condition. Because Bradley is not here to state what actions he took and what
actions Defendants took, Plaintiffs need additional time to come forward with evidence showing
that Defendants were aware of his condition and did not provide care. Therefore, Plaintiffs have
satisfied the fourth factor.
Overall, Plaintiffs have satisfied the four requirements imposed on a party seeking relief
under Rule 56(d).

In addition, Plaintiffs have demonstrated a connection between the

information they seek and the validity of Defendants’ qualified immunity assertion. Plaintiffs
55

Defendants argue that it is irrelevant whether they are the ones with access to the information Plaintiffs
seek and cite Jones and Gutierrez in support of this argument. These cases, however, are distinguishable from this
case because neither involved a deceased plaintiff who could not provide any information regarding the events at
issue.

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are entitled to conduct discovery before the Court rules on Defendants’ summary judgment
motion.

Therefore, the Court grants Plaintiffs’ Rule 56(d) motion and denies Defendants’

motion for summary judgment. But it does so without prejudice to Defendants refiling such a
motion.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment (Doc. 25) is GRANTED IN PART AND DENIED
IN PART. Defendant Maye is dismissed from this lawsuit. Defendants’ Motion for Summary
Judgment is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Defer Ruling on Defendants’
Motion to Dismiss or in the Alternative, Motion for Summary Judgment (Doc. 39) is
GRANTED.
IT IS SO ORDERED.
Dated this 27th day of September, 2017.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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