Rose v. Crall et al

Filing 39

MEMORANDUM OPINION & ORDER: 1. Pittman's 21 MOTION to Dismiss, as amended, against her, for failure to state a claim is GRANTED; 2. Plaintiff's claims against dft Tammy Pittman are DISMISSED, and Tammy Pittman is terminated as a party to this action. Signed by Judge Karen K. Caldwell on 11/13/2015.(STC)cc: COR,Plt

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

JOHN ROSE,
Plaintiff,

Civil Action No. 5:14-465-KKC

V.
MEMORANDUM OPINION
AND ORDER

DOCTOR DOUG CRALL, M.D., et al.,
Defendants.

**

**

**

**

**

John Rose (“Rose”), an inmate in custody of the Kentucky Department of Corrections
(“KDOC”) and presently confined in the Northpoint Training Center (“NTC”) in Burgin,
Kentucky, filed a complaint pursuant to 42 U.S.C. § 1983, alleging violations of his
constitutional right to medical care and treatment. [R. 1]. Specifically, Rose claims that
the Defendants1 have been deliberately indifferent to his serious medical needs, in violation
of the Eighth Amendment of the United States Constitution, by failing to provide adequate
medical care and treatment to him relative to the broken foot he sustained in January of
2014. Rose seeks compensatory damages and injunctive relief.
The Court conducted the required screening of Rose’s complaint, as amended, and in
the Amended Memorandum Opinion and Order of July 15, 2015, the Court dismissed some
claims and some of the named Defendants and directed that the remaining Defendants
respond to Rose’s complaint, as amended. [R. 13]. This matter is before the Court on
1The

named Defendants are Dr. Doug Crall, M.D., Medical Coordinator, KDOC; Dr. Richard Rhee, M.D.; Shelli
Conyers Votaw, APRN, NTC; Leann Watson, LPN, NTC; Lisa Good, LPN, NTC; Tammy Pittman, LPN, NTC;
Julie Thomas, Deputy Warden, NTC; and Correct Care Solutions.

defendant Tammy Pittman’s motion to dismiss plaintiff’s complaint, as amended, pursuant
to Fed. R. Civ. P. 12(b)(6), for failure to state a claim against her for which relief can be
granted. [R. 21]. Rose having file a response thereto [R. 35], it is ripe for review. For the
reasons explained below, Rose’s claims against Tammy Pittman will be dismissed because
Rose has failed to establish a viable Eighth Amendment claim against her.
APPLICABLE LAW
In order to survive dismissal for failure to state a claim, “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 Atl. Corp. v. Twombly, 550 U.S.
544,
570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view
the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded
factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th
Cir.2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.2009) (citations omitted)).
“But the district court need not accept a ‘bare assertion of legal conclusions.” Tackett, 561
F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th
Cir.1995)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555, 557).

2

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Therefore, the court may dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state
a claim, “[f]actual allegations must be enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true (even if doubtful
in fact).” Twombly, 550 U.S. 544 (internal citations omitted). A plaintiff satisfies this
standard only he “pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Furthermore, to state a claim for relief under § 1983, the plaintiff must allege how
each defendant was personally involved in the acts about which the plaintiff complains.
Rizzo v. Goode, 423 U.S. 362, 375 (1976) (emphasis added).

“It is not enough for a

complaint ... to contain mere conclusory allegations of unconstitutional conduct by persons
acting under color of state law. Some factual basis for such claims must be set forth in the
pleadings.” Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986). Thus, a plaintiff
must “allege ‘with particularity’ all material facts to be relied upon when asserting that a
governmental official has violated a constitutional right.” Terrrance v. Northville Reg'l
Psychiatric Hosp., 286 F.3d 834 (6th Cir.2002). The Court is not required to accept nonspecific factual allegations and inferences or unwarranted legal conclusions. Dellis v. Corr.
Corp. of Am., 257 F.3d 508, 511 (6th Cir.2001); Morgan v. Church's Fried Chicken, 829 F.2d
10, 12 (6th Cir.1987).
This Court recognizes that while pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991), “[o]ur duty to be ‘less stringent’
3

with pro se complaints does not require us to conjure up unpled allegations.” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir.1979) (citation omitted). Further, the Court is not required to
create a claim for the plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir.1975). To command otherwise would require the Court “to explore exhaustively all
potential claims of a pro se plaintiff, [and] would also transform the district court from its
legitimate advisory role to the improper role of an advocate seeking out the strongest
arguments and most successful strategies for a party.” Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir.1985).
DISCUSSION/ANALYSIS
For several reasons, plaintiff’s claims against defendant Tammy Pittman cannot
survive her motion to dismiss because Rose’s complaint, as amended, is devoid of the
requisite procedural and substantive allegations establishing that Rose is entitled to relief
from her. First, this complaint lacks the requisite specificity in stating the factual basis for
claims against Tammy Pittman.

The complaint, as amended, contains no factual

allegations that pertain to Defendant Pittman.

In fact, as Rose acknowledges in his

response, Tammy Pittman is not a nurse; she works in an administrative position in the
Medical Department at NTC. Thus, since she is not a medical provider, she was not in a
position to provide medical care and treatment to Rose; therefore, as a matter of law, she
could not have been deliberately indifferent to Rose’s medical condition in violation of the
Eighth Amendment.
Rose has furnished only vague, unsupported allegations which are nothing more
than conclusory assertions of law, parroting the legal elements of his claims.

His

complaint, as amended, does not meet the necessary degree of specificity to survive a
motion to dismiss his claims against Tammy Pittman.

4

“Allowing this case to proceed

[against Tammy Pittman] absent factual allegations that match the bare-bones recitation of
the claims’ elements would sanction a fishing expedition costing both parties, and the court,
valuable time and resources.” Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 604 (7th
Cir. 2009). Because Rose has not, as required under Twombly, “nudged [his] claims across
the line from conceivable to plausible,” his Amended Complaint against defendant Pittman
must be dismissed for failure to state a claim. Plaintiff has failed to state a single fact that
that could put Defendant Pittman on notice of what she has done that would arguably give
rise to a plausible conclusion that she has exhibited deliberate indifference to Rose’s
medical needs.
Rose concedes that Tammy Pittman is not a nurse; however, he states that Pittman
failed to provide him with medical records he had requested from her that prove his
“deliberate indifference” claim, that she had full knowledge of this deliberate indifference,
and that she tried to conceal it by not providing him with the medical records he had
requested. [R. 35, at p. 16]. Rose suggests that Pittman was part of a conspiracy of cover
up this “deliberate indifference.”
The Court is unpersuaded by Rose’s conspiracy argument. By letter dated August 7,
2014, Tammy Pittman advised Rose that she was providing him with a copy of the final xray report dated May 12, 2014, from Express Mobile of his right foot. [R. 7-1]. This letter
also advised him that: “Your request for the actual x-rays and statements made by Express
Mobile concerning your x-rays blood clots, etc., cannot be provided because they do not exist
in your medical records.” Id. In essence, Pittman provided Rose with a copy of the x-ray
report in question and advised him that she could not provide the remainder of his request
because those items were not maintained in his medical records at NTC. Pittman’s August
7 letter implies that perhaps Rose might want to consider making this same request for

5

medical records from Express Mobile itself. However, her subsequent letter to Rose dated
August 18, 2014, elaborates on this subject, where she states: “As you and I discussed
today in the Medical Department, the only statements made by Express Mobile regarding
your foot are on the Final X-ray Report you obtained from the Medical Department
previously.” [R. 35-1].
To establish a viable claim against Pittman, Rose must make a colorable claim that
defendant Pittman “did more than play a passive role in the alleged violation or showed
mere tacit approval of the goings on.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.1999)
(citations omitted). Instead, he must show that Pittman “either encouraged the specific
incident of misconduct or in some other way directly participated in it.” Loy v. Sexton, 132
F. App'x 624, 626 (6th Cir. 2005) (Shehee, 199 F.3d at 300). Because Rose has failed to
allege any facts that plausibly make this showing, any claims against defendant Pittman
must be dismissed.
Accordingly, it is ORDERED that:
1.

The motion of defendant Tammy Pittman to dismiss plaintiff’s complaint, as

amended, against her, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim [R.
21] is GRANTED.
2.

Plaintiff’s claims against defendant Tammy Pittman are DISMISSED, and

Tammy Pittman is terminated as a party to this action.
Dated November 13, 2015.

6