Lawson v. Rice et al
Filing
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OPINION AND ORDER by Judge Frank H. Seay: Granting (Dkt No 64 ) Defendant Ross Lane Fisher's Motion to Dismiss ; terminating party Ross Lane Fisher (MD) (neh, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
CAROLYN SUE LAWSON, as the
Personal Representative for the
Estate of JOHN FITZGERALD PERRY,
deceased,
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Plaintiff,
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vs.
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OKMULGEE COUNTY CRIMINAL
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JUSTICE AUTHORITY, a public trust,
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NURSE T. WEST, LPN, JOHN F.
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MUMEY, M.D., NURSE FREEMAN, LPN, )
STATE OF OKLAHOMA ex. rel.,
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OKLAHOMA DEPARTMENT OF
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CORRECTIONS, LINDSAY MUNICIPAL )
HOSPITAL, and ROSS LANE FISHER,
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M.D.,
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Defendants.
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Case No. 15-CV-300-FHS
OPINION AND ORDER
This matter comes before the Court on the Defendant Dr. Ross Lane Fisher’s
Motion to Dismiss (Dkt. # 64). Plaintiff filed her response on May 12, 2016 (Dkt. # 65).
Defendant Fisher seeks dismissal of this action, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, for failure to state a claim for deliberate indifference
under the Eighth Amendment. Alternatively, Defendant Fisher seeks qualified immunity.
Finally, Defendant Fisher argues Plaintiff has failed to state a Bosh claim1 because any
such claims are barred by Oklahoma’s statute of limitations. Plaintiff responds that she
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See, Bosh v. Cherokee Cnty, Bldg. Auth., 305 P.3d 994 (Okla. 2013).
has stated sufficient facts to establish Defendant Fisher violated Mr. Perry’s Eighth
Amendment rights. Additionally, Plaintiff argues Defendant Fisher is not entitled to
qualified immunity. Finally, Plaintiff asserts she does not have an available claim under
the Oklahoma Governmental Tort Claims Act and, therefore, her Bosh claim is viable and
should not be dismissed. Moreover, Plaintiff alleges her Bosh claim is not barred by the
one year limitation period contained in Okla.Stat., tit. 12, § 95(A)(11).
To avoid dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a
complaint must present factual allegations, assumed to be true, that “raise a right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The complaint must contain “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570. A court must accept all the well-pleaded allegations of the complaint
as true, even if doubtful in fact, and must construe the allegations in the light most
favorable to the plaintiff. Id. at 555. Nonetheless, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to relief,” the cause of
action should be dismissed. Id. at 558. A dismissal under Rule 12(b)(6) is proper where
there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d
696, 699 (9th Cir. 1990).
In order to state a cognizable Eighth Amendment claim for denial of medical
attention, a plaintiff must “allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Claims of deliberate indifference contain both an
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objective and subjective component. Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th
Cir. 2014) and Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). The objective
component requires proof that the condition was “sufficiently serious.” See, Farmer v.
Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Tenth Circuit
has held “[a] medical need is 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.’” Al-Turki, supra (quoting Oxendine v.
Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). In Mata v. Saiz, 427 F.3d 745, 751 (10th
Cir. 2005), the circuit court said
a ‘medical 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.’
Sealock, 218 F.3d at 1209 (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999)(further quotation omitted)). Where the necessity for
treatment would not be obvious to a lay person, the medical judgment of
the physician, even if grossly negligent, is not subject to second-guessing in
the guise of an Eighth Amendment claim. See, e.g., Green v. Branson, 108
F.3d 1296, 1303 (10th Cir. 1997).
See also, Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)
(“[A] complaint that a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a constitutional violation merely
because the victim is a prisoner.”)
To satisfy the subjective component, i.e., the requisite deliberate indifference, the
plaintiff must show that the defendant knew that the plaintiff faced “a substantial risk of
serious harm and disregard[ed] that risk by failing to take reasonable measures to abate
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it.” Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811
(1994). See, GJA v. Oklahoma Dept. of Human Services, 347 P.3d 310 (Okla.Civ.App.
2015)(recognizing “Not every malfeasance, misfeasance, or nonfeasance rises to the level
of a violation of constitutional rights.”).
I. Eighth Amendment Claim
Plaintiff’s amended complaint alleges, at the time of his transfer to Lexington
Assessment and Reception Center (“LARC”), Perry had a “golf ball-sized lump or mass
under on [sic] his neck under his right ear.” Dkt. No. 19, at p. 5. Plaintiff further assesrts
“medical staff at LARC, including Defendant Fisher, did nothing to determine whether
the lump was malignant.” Id., at p. 6. Plaintiff continues by stating:
Medical staff at LARC gave Mr. Perry a chest X-Ray and determined that
there was a “spot” on Mr. Perry’s lungs. On information and belief, Dr.
Fisher was aware of the spot found on Mr. Perry’s lungs. However,
medical staff, including Dr. Fisher, at LARC did nothing to provide proper
pathology or diagnosis. There was no follow-up whatsoever. Indeed, Mr.
Perry was not even placed in the medical unit at LARC. Mr. Perry was at
LARC for approximately four (4) weeks, and was provided with no medical
treatment despite the obvious symptoms that he was suffering from a
serious medical condition. Mr. Perry continued to feel very sick and his
condition continued to deteriorate. However, he was not provided with
diagnostics or adequate treatment.
Id.
Mr. Perry was transferred from LARC in October of 2011 and there are no
allegations that Defendant Fisher had any further contact with Plaintiff until sometime
after June 2013. Plaintiff’s amended complaint does not indicate when Mr. Perry began
radiation treatment at OU Medical Center where he stayed for around thirty (30) days.
However, after his stay at OU Medical Center, the amended complaint indicates Mr.
Perry was returned to LARC. Finally, the amended complaint alleges upon his return to
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LARC, Mr. Perry was not placed in the medical unit, he became dehydrated and began
blacking out and he died of cancer on August 8, 2013.
Nothing within the amended complaint indicates that the “golf ball-sized lump or
mass” on Mr. Perry’s neck and the “spot” on his lung were related. Accepting the
Plaintiff’s allegations as true and knowing the ultimate diagnosis, this Court finds that the
lump and/or the spot on Mr. Perry’s chest x-ray meets the objective standard as a serious
medical need.
As to the subjective standard, this Court finds Plaintiff has failed to allege any
facts to establish Defendant Fisher 1) was ever made aware of the results of the chest xray, or 2) was Mr. Perry’s treating physician at the time of intake at LARC. Plaintiff does
not allege that Defendant Fisher was aware of any of Perry’s companion symptoms
which are alleged to have occurred after Perry was transferred to another facility. While
Plaintiff alleges during the initial 4 week incarceration at LARC Perry “continued to feel
very sick” and his “condition continued to deteriorate”, there is no allegation that Perry
submitted sick calls or expressed any physical complaints until he was transferred from
LARC. There are no allegations that Defendant Fisher knew during this initial 4 week
period that Plaintiff was feeling “very sick” or that Defendant Fisher was in any way
responsible for any medical care after Perry was transferred out of LARC. Plaintiff does
not allege Defendant Fisher examined Mr. Perry, reviewed Mr. Perry’s medical records
or history, consulted with other LARC providers concerning Perry’s care, or that Mr.
Perry discussed or shared any of his symptoms with Defendant Fisher. There are simply
no allegations or facts to imply that Defendant Fisher made the inference that Perry’s
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symptoms needed immediate treatment. Further, there are no allegations Defendant
Fisher refused access to medical personnel capable of evaluating Perry’s needs or
prevented Perry from receiving medical care. At best, Plaintiff may have stated a claim
for negligence or medical malpractice if, accepting as true, Defendant Fisher was “aware”
of a spot on Perry’s x-ray but conducted no follow-up.
As for the allegations regarding Mr. Perry’s placement at LARC after his radiation
treatment, there are no facts which establish placement in the medical unit was necessary.
There are no allegations that OU Medical Center recommended, upon release of Perry,
placement in a medical facility; on the contrary, OU Medical Center released Mr. Perry
back to the Oklahoma Department of Corrections. Moreover, there are no allegations
from which this Court could find Defendant Fisher inferred placement in the medical unit
was appropriate. In fact, there are no allegations that Defendant Fisher was ever made
aware that Mr. Perry had been returned to LARC or was “coughing up blood.”
Therefore, this Court finds Plaintiff has failed to establish Defendant Fisher was
deliberately indifferent to Mr. Perry’s serious medical needs. Therefore, this Court finds
Plaintiff has failed to state a claim an Eighth Amendment claim against Defendant Fisher
for deliberate indifference to serious medical needs.
II. Bosh claim
In her second claim for relief, Plaintiff alleges violation of Art. II, § 9 and Art. II,
§ 7 of the Oklahoma Constitution. Since this Court finds Plaintiff’s claims do not state a
claim for deliberate indifference to serious medical needs, Plaintiff has failed to state a
claim for relief pursuant to Bosh v. Cherokee Building Authority, 305 P.3d 994 (Okla.
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2013). Moreover, Plaintiff’s Bosh claims are barred by Oklahoma’s one year limitations
period for claims against the state based on facts which occurred while a person was an
inmate. See, Okla.Stat., tit. 12, § 95(A)(11). See also, Fisher v. Glanz, 2016 WL
141846, 8 (N.D. 2016)(holding Okla.Stat., tit. 12, § 95(a)(11) “trumps the more general §
95(A)(3) when a state constitutional claim is brought by an inmate or based upon facts
that occurred while the person was an inmate in state custody”).
For the reasons stated herein, this Court grants Defendant Fisher’s motion to
dismiss (Dkt. No. 64), pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim for
relief.
It is so ordered on this 20th day of July, 2016.
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