Moore v. Warden et al

Filing 60

ORDER granting 37 Motion to Dismiss or Motion for Summary Judgment; denying 44 Motion to Alter/Amend/Supplement Pleadings (Written Opinion). LET JUDGMENT BE ENTERED ACCORDINGLY. Signed by Judge Paul A. Magnuson on April 25, 2017.(ALT) Modified text on 4/26/2017 (ACH). cc: William Moore

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

William Moore,

Case No. 16-cv-709 (PAM/SER)

Plaintiff,
v.
MEMORANDUM AND ORDER
Dr. Benjamin Rice,
Dr. R. Gupta, and Cheryl
Owens,
Defendants.

This matter is before the Court on Defendants’ Motion to Dismiss or for Summary
Judgment and Plaintiff’s Motion to Amend Complaint. Plaintiff seeks to amend his
Complaint for the third time to address deficiencies raised by Defendants’ dispositive
Motion, but because Plaintiff’s underlying allegations do not rise to the level of a
constitutional violation, any amendment would be futile.

The Court has, however,

considered the allegations in the proposed Third Amended Complaint when evaluating
whether Plaintiff has sufficiently raised a constitutional claim. For the following reasons,
the Court denies the Motion to Amend and grants the Motion to Dismiss.
BACKGROUND 1
Plaintiff William Moore is currently incarcerated at the Federal Prison Camp in
Duluth, Minnesota. (2d Am. Compl. ¶ 2.) In 2013, Moore injured his left knee while

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The facts set forth in this section are taken from the Second Amended Complaint
(Docket No. 23-1), supplemented by additional relevant facts alleged in the proposed
Third Amended Complaint (Docket No. 44-1).

working at the Federal Correctional Institution in Sandstone, Minnesota. The institution
referred Moore to a specialist (3d Am. Compl. ¶ 8) who recommended that Moore
undergo surgery to repair his knee. (Id. ¶ 9.) Shortly after the injury, Moore was
transferred to the Federal Correctional Institution in Oxford, Wisconsin. (Id. ¶ 10.) The
medical director at FCI-Oxford, Dr. Gupta, a Defendant here, referred him to another
specialist, who recommended that Moore undergo total knee replacement. (Id. ¶ 12.)
In 2015, Moore was again transferred, this time to FPC-Duluth.

(Id. ¶ 15.)

Defendant Dr. Benjamin Rice is the medical director at FPC-Duluth. (2d Am. Compl.
¶ 4.) Moore alleges that Dr. Rice denied him effective pain medication and referred him
once again to specialists.

(3d Am. Compl. ¶¶ 16-17.)

According to Moore, both

specialists recommended that he undergo total knee replacement. (Id. ¶¶ 18-19.)
Dr. Rice submitted a request for Moore’s surgery to the Bureau of Prisons. (Id.
¶ 23.) The BOP’s Chief of Health Programs, Dr. Jeffrey Allen, 2 ultimately denied the
request (id. ¶ 24), because Moore’s Body Mass Index (“BMI”) was above the
recommended level for knee-replacement surgery. (2d Am. Compl. ¶ 10.)
Moore claims that his BOP physicians failed to provide for his medical needs and
that this amounts to deliberate indifference in violation of the Eighth Amendment and 42
U.S.C. § 1983. (Id. ¶¶ 19-21; 3d Am. Compl. ¶¶ 30-32.)

He seeks compensatory

damages of $500,000 against each Defendant, a declaration that Defendants are violating

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The Second Amended Complaint named Cheryl Owens as a Defendant, alleging that
she acts as the BOP’s “medical designator.” In his briefing, Moore concedes that Owens
should be dismissed (Docket No. 47 at 4), and his proposed Third Amended Complaint
adds Dr. Allen as a Defendant in place of Owens.
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his rights, and an injunction requiring the BOP to allow Moore to have the recommended
knee surgery. (2d Am. Compl. ¶¶ 25-27.) 3
DISCUSSION
When evaluating a motion to dismiss under Rule 12(b)(6), the Court assumes the
facts in the complaint to be true and construes all reasonable inferences from those facts
in the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.
1986). However, the Court need not accept as true wholly conclusory allegations, Hanten
v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal
conclusions that the plaintiff draws from the facts pled. Westcott v. City of Omaha, 901
F.2d 1486, 1488 (8th Cir. 1990).
Although the Court liberally construes pro se pleadings, a pro se complaint must
contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 545 (2007). The complaint need not contain “detailed
factual allegations,” it must contain facts with enough specificity “to raise a right to relief
above the speculative level.” Id. at 555. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements,” will not pass muster under
Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
555). In sum, this standard “calls for enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556.

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The proposed Third Amended Complaint seeks only a declaratory judgment and
unspecified compensatory damages.
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When a party submits evidence outside the pleadings in support of a motion to
dismiss, as Defendants have done here, the Court may convert the motion into a motion
for summary judgment. Casazza v. Kiser, 313 F.3d 414, 417-18 (8th Cir. 2002). Indeed,
Defendants seek summary judgment as an alternative to dismissal under Rule 12(b)(6),
and have submitted several affidavits describing Moore’s treatment. Moore responds not
by requesting additional discovery, but rather by contending that he should be allowed to
amend his complaint. Because it is apparent that discovery will not advance Moore’s
claims or support his opposition to Defendants’ Motion, and because Moore has been
afforded a meaningful opportunity to respond to the facts Defendants raise, the Court will
consider Defendants’ Motion as one for summary judgment. 4
In order for any Defendant to be liable for deliberate indifference to Moore’s
serious medical needs, Moore must establish both a violation of his constitutional rights
and that qualified immunity does not protect Defendants from suit. Put another way, if
Moore cannot establish a violation of a constitutional right, Defendants are entitled to
qualified immunity. Brockington v. City of Sherwood, 503 F.3d 667, 671 (8th Cir.
2007).
To establish a claim under the Eighth Amendment, Moore must demonstrate both
that he had an objectively serious medical need and that Defendants knew of this need

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Defendants’ first argument is that the Court lacks personal jurisdiction over Dr. Gupta
and over Dr. Allen, should Moore be allowed to amend his Complaint to add Dr. Allen as
a Defendant. Although the Court has doubts about whether either physician is within the
reach of Minnesota’s long-arm statute, a determination on this issue would require further
factual development. Because the Court concludes that Moore’s claims fail based on the
current record, it will not reach the personal-jurisdiction issue.
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but deliberately disregarded it. Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011).
A difference of opinion on the proper course of treatment does not amount to deliberate
indifference, nor can a plaintiff establish a constitutional violation for conduct that is
merely negligent. Bender v. Regier, 385 F.3d 1133, 1137-38 (8th Cir. 2004); Estelle v.
Gamble, 429 U.S. 97, 106 (1976).

Medical providers “do not violate the Eighth

Amendment when, in the exercise of their professional judgment, they refuse to
implement a prisoner’s requested course of treatment.” Long v. Nix, 86 F.3d 761, 765
(8th Cir. 1996).
Moore believes that only a total knee replacement will relieve his pain and solve
his mobility issues, and that Defendants’ refusal to authorize the surgery amounts to
deliberate indifference to his pain and mobility issues. He does not, and indeed cannot,
dispute that the BOP has a neutral policy in place regarding surgeries such as knee
replacements that requires any prisoner undergoing such a procedure to have a BMI
under 35. (Rice Decl. (Docket No. 39) ¶ 10; id. Ex. G at 3 (Docket No. 39-7) (BOP’s
Clinical Practice Guideline “Evaluation and Management of Osteoarthritis of the Hip and
Knee”).) Nor can he dispute that this policy is grounded in sound medical science. As
Defendants point out, the Medicare standards for elective joint replacement surgery
similarly establish a BMI limit of 35, because research has shown that excess weight
greatly increases the risk of serious post-surgical complications such as infections,
pulmonary embolism, and deep-vein thrombosis. (Rice Decl. ¶ 10.)
Moore also does not dispute that his BMI is above 35. He seems to contend that
the BOP selectively applies the BMI criteria by pointing to two other inmates who have
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been approved for surgery despite having BMIs over 35. But neither of these inmates
was approved for joint-replacement surgery.

Instead, both had gallbladder surgery,

which involves very different considerations from elective joint-replacement surgery,
including the risk of death if the gallbladder is not removed. (Id. ¶ 14.) These two
supposed comparators do not aid Moore’s claims in the least.
Despite Moore’s BMI, Dr. Rice did refer him for evaluation for knee-replacement
surgery. (Id. ¶ 11.) Dr. Allen ultimately determined that Moore was not a candidate for
the surgery, instead recommending that the institution offer Moore activity modification
and the assistance of a nutritionist to help him lose weight. (Id. Ex. I.) Dr. Allen did not
foreclose the possibility of surgery, but found that Moore needed to lose weight to be
considered for the surgery. (Id.) Moore has been unable to lose the weight required to
bring his BMI below 35 and thus the BOP continues to deny his requests for surgery.
The undisputed and indisputable facts establish that the BOP’s decision to deny
Moore a total knee-replacement was an exercise of medical judgment, not deliberate
indifference to Moore’s serious medical needs. Each physician involved in the decision
here acknowledges that Moore experiences severe pain and is unable to engage in some
activities of daily living. However, in their professional judgment, the risks for Moore
because of his high BMI outweigh the benefits of surgery. These sorts of medical
decisions simply do not amount to deliberate indifference.
Because Moore cannot establish any violation of his constitutional rights,
Defendants are entitled to qualified immunity and Moore’s claims must be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:
1.

Defendants’ Motion to Dismiss or for Summary Judgment (Docket No. 37)
is GRANTED;

2.

Plaintiff’s Motion to Amend (Docket No. 44) is DENIED; and

3.

This matter is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: April 25, 2017

s/Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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