Dieteman v. Lancaster County et al

Filing 28

MEMORANDUM AND ORDER - Morin's Motion to Dismiss (filing 24 ) is denied. Morin shall file an answer within seven days of the date of this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORY L. DIETEMAN,
Plaintiff,
v.
THE COUNTY OF LANCASTER,
NEBRASKA, et al.,
Defendants.

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4:14CV3053

MEMORANDUM
AND ORDER

This matter is before me on Defendant Douglas Morin’s Motion to Dismiss
Plaintiff’s Complaint. (Filing 24.) For the reasons discussed below, the motion is
denied.
I.

BACKGROUND

Plaintiff filed his Complaint in this matter on March 14, 2014, against Lancaster
County, Nebraska; the Lancaster County Adult Detention Facility; Michael Thurber;
Dr. Douglas Morin (“Morin”); Douglas County, Nebraska; the Douglas County Adult
Detention Center; Mark Foxall; and John and Jane Does 1-10. (Filing 1 at CM/ECF
p. 1.) In general, Plaintiff alleges Defendants violated his constitutional rights by
providing inadequate housing and medical treatment. (Id.)
On July 16, 2014, Defendant Morin filed a Motion to Dismiss along with a
Brief in Support. (Filings 24 and 25.) Plaintiff has filed a Brief in Response (filing
26) and Morin has replied (filing 27). Morin’s Motion is now ripe for a decision.

II.

ANALYSIS
A.

Motion to Dismiss Standard

“To survive a motion to dismiss, 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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic 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. This “plausibility
standard” is not one of probability, “but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. Where a complaint contains facts that are
“merely consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Twombly, 550 U.S. at 557
(brackets omitted).
“Determining whether a complaint states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 129 S. Ct. at 1950. “But where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. at 1949.
B.

Morin’s Motion to Dismiss

In his brief, Morin argues that Plaintiff’s allegations against him fail to state an
Eighth Amendment claim upon which relief may be granted. (Filing 25.) More
specifically, Morin argues that Plaintiff’s Complaint does not allege that he

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“deliberately disregarded Plaintiff’s needs.” (Id. at CM/ECF p. 9; Filing 27 at
CM/ECF pp. 2-5.)
A plaintiff-prisoner seeking relief for claims relating to his medical care must
allege that a defendant-prison official was deliberately indifferent to the plaintiff’s
serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Coleman v.
Rahija, 114 F.3d 778, 784 (8th Cir. 1997)). Further, a plaintiff must allege that he had
objectively serious medical needs, and that officials actually knew of but deliberately
disregarded those needs. Hartsfield v. Colburn, 491 F.3d 394, 396-97 (8th Cir. 2007);
Johnson v. Hamilton, 452 F.3d 967, 972-73 (8th Cir. 2006). “[S]ociety does not
expect that prisoners will have unqualified access to health care.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992). Therefore, “deliberate indifference to medical
needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’”
Id. (citing Estelle, 429 U.S. at 103-04).
Here, Plaintiff alleges that he was diagnosed with an Anterior Cruciate
Ligament (“ACL”) tear while he was incarcerated in the Black Hawk County Adult
Detention Center in Waterloo, Iowa. (Filing 1 at CM/ECF pp. 6-7.) A physician
prescribed Plaintiff pain and anti-inflammatory medications, but also informed
Plaintiff he would not be in the facility long enough to receive surgery. (Id. at
CM/ECF p. 7.)
On March 8, 2011, Plaintiff was transferred to the Lancaster County Jail. (Id.)
Upon being booked, Plaintiff informed the jail of his knee injury and asked to see a
doctor. (Id.) On April 25, 2011, Morin examined Plaintiff, diagnosed a complete
ACL tear, and informed Plaintiff that surgery was needed. (Id. at CM/ECF p. 8.)
Despite this diagnosis, Plaintiff was not provided with a knee sleeve or a brace until
August 2011. (Id.)
After receiving a knee sleeve, Plaintiff continued to request x-rays and an MRI
of his knee with no success. (Id. at CM/ECF pp. 8-9.) However, on January 27, 2012,
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Morin examined Plaintiff again and concluded he had “lost his medial ligament and
had severed a nerve in the knee.” (Id. at CM/ECF p. 9.) Morin believed that Plaintiff
“could easily further injure his knee by climbing or descending steps” and that he
“needed an MRI.” (Id.) Despite this opinion, Morin thought that Plaintiff “likely
would not be allowed to do orthopedic surgery,” so he did not direct the MRI be
performed. (Id.) Instead, Morin prescribed an “ace bandage and a neoprene sleeve.”
(Id.)
Over the next several months Plaintiff continued to complain about his knee.
(Id. at CM/ECF pp. 9-10.) During this time, Morin continued to state that there was
no need for off-site evaluation and that surgery was elective and would not be pursued
while Plaintiff was incarcerated. (Id.)
On May 21, 2012, Morin changed course and “professed a goal of evaluating
and requesting a repair” of Plaintiff’s torn ligament. (Id. at CM/ECF p. 11.)
However, on June 6, 2012, Morin informed Plaintiff that the Douglas County Adult
Detention Center would not allow him to provide Plaintiff with a brace or let him
order an MRI because Morin was not an orthopedic doctor. (Id.) On June 13, 2012,
the Douglas County Adult Detention Center cancelled an appointment Morin had
made with an outside physician and, instead, indicated it would offer Plaintiff a brace.
(Id. at CM/ECF p. 12.)
Construing all reasonable inferences in Plaintiff’s favor, I find that his
allegations against Morin are sufficient to allege an Eighth Amendment claim.
Indeed, Morin concluded that Plaintiff needed surgery on April 25, 2011, but he did
not attempt to refer Plaintiff to a specialist for further evaluation until May 21, 2012.
(Id. at CM/ECF pp. 7-12.) During this time Plaintiff “lost his medial ligament” and
“severed a nerve.” (Id. at CM/ECF p. 9.) After diagnosing these additional injuries,
Morin believed that Plaintiff “could easily further injure his knee by climbing or
descending steps” and that he “needed an MRI.” (Id.) Yet, because Morin thought
Plaintiff “likely would not be allowed to do orthopedic surgery,” he did not direct the
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MRI be performed. (Id.) Deliberate indifference can be shown by persisting in an
ineffective course of treatment and by delaying necessary medical treatment. See
generally Gara v. Peek, No. 10-cv-769-SCW, 2013 WL 3964778, at *7 (S.D. Ill. July
13, 2013) (denying doctor’s motion for summary judgment where doctor contributed
to delay in ruling out inmate’s ACL tear and persisted in sending inmate to ineffective
physical therapy in lieu of referring him to a specialist); Baker v. Wilkinson, 635 F.
Supp. 2d 514, 521 (W.D. La. 2009) (“Deliberate indifference may be shown when
prison officials have denied an inmate a prescribed treatment or have denied him
access to medical personnel capable of evaluating the need for treatment.”).
Accordingly, Morin’s Motion to Dismiss is denied.
IT IS THEREFORE ORDERED that:
1.

Morin’s Motion to Dismiss (filing 24) is denied.

2.
Morin shall file an answer within seven days of the date of this
Memorandum and Order.
DATED this 27th day of October, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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