United States District Court, E.D. Kentucky, Southern Division, Frankfort
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
George Purefide believes that the medical treatment he has received as an inmate of the Luther Luckett Correctional Complex is so bad that it constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. As a result, he filed a pro se "Petition for Declaration of Inmate Rights" asking the Franklin Circuit Court to order the defendants to provide him with the treatment that he needs. [R. 1-3]. After properly removing the case to this Court, Defendants Ladonna Thompson, Commissioner of the Kentucky Department of Corrections, and Greg Howard, Warden of the Luther Luckett Correctional Complex, moved to dismiss the claims against them because the petition does not allege that they did anything wrong. [R. 4]. Defendants Nurse Kristy Mullins, Dr. Don Stephens, Nurse Sonya Burrus, and Nurse Anne Jones claim that summary judgment in their favor is appropriate because they were not deliberately indifferent to Purefide's medical needs as shown by the treatment they provided. [R. 7]. For the reasons that follow, the Court shall GRANT the Defendants' motions and DISMISS Purefide's petition.
Petitioner George Purefide is an inmate at the Luther Luckett Correctional Complex in LaGrange, Kentucky. [R. 1-3 at 9-10]. Defendant Ladonna Thompson is the Commissioner of the Kentucky Department of Corrections and Defendant Greg Howard is the Warden of the Luther Luckett Correctional Complex. [R. 1-3 at 10]. The Department of Corrections contracts with CorrectCare-Integrated Health, Inc., to provide medical personnel at Luther Luckett. [R. 7-1 at 1]. Defendants Nurse Kristy Mullins, Dr. Don Stephens, Nurse Sonya Burrus, and Nurse Anne Jones, were all employees of CorrectCare and treated Purefide during his incarceration at Luther Luckett. [ Id. ]
According to Purefide's Petition, at the time he arrived at Luther Luckett he was experiencing problems with his feet and one of his eyes. [R. 1-3 at 9]. He indicates that he has sought treatment for these problems over the course of his incarceration, but the medical care he received was inadequate. [ Id. ] Concerning his feet, Purefide acknowledges that he was treated with an antibiotic injection, a pill, and "foot soaks." [R. 1-3 at 8]. However, he claims that, as a result of Nurse Burrus's actions in October 2012, he did not have access to his medication, was required to purchase medication at the canteen, and was turned away from further treatment. [R. 1-3 at 8-9]. This appears to have been the subject of a grievance filed with the facility. [R. 1-3 at 31]. He also claims that in August 2013, Dr. Jones failed to see him and instead he was only able to see Nurse Carver who simply ordered more "foot soaks." [R. 1-3 at 15].
Concerning his eye, Purefide provides a grievance form dated July 1, 2013, in which he notes that the eye drops he had been prescribed for pink eye had not been effective and his eye felt worse. [R. 1-3 at 21]. He sought an appointment with an eye doctor, which he received on July 5, 2013. [R. 1-3 at 21, 26-27]. Purefide claims that the eye doctor indicated that he had cataracts, but did not provide treatment to improve his situation and Purefide received no further treatment at the facility. [R. 1-3 at 9, 27]. Purefide indicates that he returned to the eye doctor on July 31 and was told to keep hot towels compressed to his eyes, but this did not cure his ailment either. [R. 1-3 at 9, 26].
According to Purefide, he has been "forced to endure intense discomfort because his plea for medical assistance when unheeded by the Respondent, Dr. Stevens, Dr. A. Jones, as well as the Nurses of the L.L.C.C. Medical Staff." [R. 1-3 at 16]. As a result, Purefide has filed the Petition presently before the Court claiming that the Defendants provided him inadequate healthcare in violation of the Eight Amendment to the United States Constitution.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Ladonna Thompson and Greg Howard move to dismiss Purefide's claims against them. Purefide has not responded to the Defendants' motion to dismiss. When a plaintiff "fails to respond or to otherwise oppose a defendant's motion, then the district court may deem the plaintiff to have waived opposition to the motion." Scott v. Tennessee, 878 F.2d 382, 1989 WL 72470, at *2 (6th Cir. 1989) (unpublished table decision); see also Humphrey v. U.S. Attorney General's Office, 279 Fed.Appx. 328, 331 (6th Cir. 2008) (finding that a plaintiff's failure to oppose arguments raised in defendants' motion to dismiss is grounds for the district court to assume that opposition to the motion is waived); Wesley v. Rigney, 913 F.Supp.2d 313, 330 (E.D. Ky. 2012) (dismissing plaintiff's claim when plaintiff waived opposition to defendant's motion to dismiss by failing to respond to arguments raised in the motion). By failing to respond to or to otherwise controvert the defendants' Motion to Dismiss, and by failing to timely seek an extension of time in which to do so, Purefide has waived any objection he might have had to the defendants' motion.
However, when granting a motion will result in the outright dismissal of an action, the Court should exercise some caution to at least ensure that the moving party has met its burden under the Federal Rules. See, e.g., Carver v. Bunch, 946 F.2d 451, 453-54 (6th Cir. 1991) (finding that plaintiff's failure to respond to defendants' motion to dismiss, "standing alone, " did not amount to a failure to prosecute and accordingly concluded that district court erred in dismissing plaintiff's complaint based solely on the failure to respond). In this case, the Defendants' motion rightly shows that Purefide has failed to state a claim against Thompson and Howard such that dismissal is also substantively appropriate under Federal Rule of Civil Procedure 12(b)(6).
Rule 12(b)(6) allows a defendant to seek dismissal of a complaint which fails to state a claim upon with relief can be granted. Fed.R.Civ.P. 12(b)(6). In reviewing a Rule 12(b)(6) motion, the Court "accept[s] all the Plaintiffs' factual allegations as true and construe[s] the complaint in the light most favorable to the Plaintiffs." Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). For a claim to be viable, the complaint must, at a minimum, "give the defendant fair notice of what the... claim is and the grounds upon which it rests, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Further, "[t]o 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, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). "[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).
Purefide's petition makes only two mentions of Thompson and Howard. One is in the heading of the case and the second is in the section labeled "Parties." From those two references, the petition indicates the positions of these defendants and where they are located, but fails to produce a single fact that could put Thompson and Howard on notice of what they have done wrong, let alone give rise to a plausible conclusion that they were deliberately indifferent to Purefide's medical care.
Even if Thompson and Howard were potentially supervising the health care providers - a fact that is not at all obvious from the petition - is not enough to save Purefide's claims against them. Eighth Amendment claims are actionable under 42 U.S.C. § 1983. "Liability under §1983 cannot be based on the doctrine of respondeat superior. " Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999). Purefide must allege that Thompson and Howard "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 they "either encouraged the specific incident of misconduct or in some other way directly participated in it." Loy v. Sexton, 132 ...