United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
Ruben Rios Salinas, Brian Woodcock, Keath Bramblett, and
Jessica Lawrence sued various individuals in charge of
developing treatment plans and treating inmates in the
Kentucky Department of Corrections. Plaintiffs assert that
Defendants failed to adequately treat them after they were
diagnosed with the Hepatitis C virus. Several Defendants now
file a motion to dismiss, asserting many different theories
relating to dismissal under Federal Rule of Civil Procedure
12(b)(6). [R. 38 at 3.] For the reasons that follow,
Defendants' Motion to Dismiss is DENIED.
Plaintiffs in this matter are inmates, incarcerated with the
Kentucky Department of Corrections (KDOC). [R. 1-2 at ¶
3.] Each of them have been diagnosed with the Hepatitis C
virus (HCV). Id. Defendant James Erwin is the
current Commissioner of the KDOC, responsible for its
operations, policies, and employment. [R. 36 at ¶ 4.]
The original Plaintiffs did not sue Mr. Erwin, but he was
added to this lawsuit by Intervening Plaintiff Jessica
Lawrence. Defendants Rodney Ballard and LaDonna Thompson are
former Commissioners of the KDOC. Id. at ¶ 5-6.
Defendant Doug Crall, M.D., is the Medical Director of the
KDOC, responsible for policies, procedures, and employment
concerning the inmates' medical care. [R. 1-2 at ¶
12.] Defendant Cookie Crews is the Health Services
Administrator of the KDOC. Id. at ¶ 13.
Defendant Frederick Kemen, M.D., is responsible for managing
the HCV treatment plan for KDOC inmates. Id. at
¶ 14. Defendants Correct Care Solutions, Inc., provides
medical services to inmates of the KDOC. Id. at
¶ 15. All Defendants were sued in their individual, not
believe they were not provided treatment for their HCV
infections that complied with the appropriate standard of
care. Id. at ¶ 16. According to their
complaint, Defendants did not employ qualified individuals,
did not adequately train these employees, and did not create
or enforce necessarily policies and procedures to ensure
proper care. Id. Plaintiff Brian Woodcock is housed
at the Kentucky State Penitentiary (KSP). Id. at
¶ 52. In December 2011, a biopsy indicated the fibrosis
in his liver had advanced from Stage 1 to Stage 2.
Id. Under Dr. Steven Shedlofshky's standards, he
was first told he qualified for antiviral prescription
medication. Id. But Dr. Shedlofsky then left KDOC,
and KDOC found Mr. Woodcock did not qualify for medication.
Id. Four years later, after his infection further
progressed, he began receiving treatment. Id. at
¶53. Plaintiff Ruben Rios Salinas is also housed in KSP
and has been denied testing and treatment of his HCV
infection. Id. at ¶¶ 54-55. Plaintiff
Keath Bramblett, another inmate at KSP, contracted HCV during
incarceration. Id. at ¶ 56. He has been denied
both participation in any program working with food and
treatment for his condition. Id. at ¶¶
56-57. Mr. Bramblett has been ordered to share razors with
other inmates. Id. at ¶ 57. Intervening
Plaintiff Jessica Lawrence has been diagnosed with HCV but
has not received any treatment. [R. 36 at 5.]
sue Defendants on four separate theories. First, Plaintiffs
sue Defendants under § 1983 for violations of the Eighth
and Fourteenth Amendments to the United States Constitution.
[R. 1-2 at ¶ 61.] Also, Plaintiffs claim Defendants
violated the Americans with Disabilities Act and the
Rehabilitation Act of 1978 for failure to reasonably
accommodate their infections. Id. at ¶ 64.
Based on the failure to meet the standard of care, Plaintiffs
believe Defendants acted with negligence and gross
negligence. Id. at ¶ 66. Finally, Plaintiffs
sue for Intentional Infliction of Emotional Distress.
Id. at ¶ 68. Intervening Plaintiff Lawrence
joins in each of these claims except for Intentional
Infliction of Emotional Distress. [R. 36 at ¶¶
6-8.] They seek both injunctive relief for care and damages
for lack of treatment. [R. 1-2 at 19; R. 36 at 9.]
case began in 2015 in Franklin Circuit Court in Franklin
County, Kentucky. [R. 38 at 1.] Mr. Salinas filed a Petition
for Writ of Mandamus against then-Commissioner LaDonna
Thompson, seeking the Court to order treatment for his HCV
infection. Id. at 1-2. On November 14, 2016, Mr.
Salinas filed an Amended Class Action Complaint, naming
additional plaintiffs and defendants. Id. at 2. The
case was removed to this Court on December 7, 2016. [R. 1.]
On August 18, 2017, Ms. Lawrence moved to intervene, adding
Mr. Erwin as an additional defendant. [R. 33.] Magistrate
Judge Edward B. Atkins permitted intervention. [R. 35.]
Nearly a month later, Mr. Ballard, Dr. Crall, Ms. Crews, Mr.
Erwin, and Ms. Thompson filed a joint Motion to Dismiss. [R.
38.] The Court has construed this motion to be a motion to
dismiss both the First Amended Class Action Complaint [R.
1-2] and the Intervening Complaint [R. 36].
motion to dismiss pursuant to Rule 12(b)(6) tests the
sufficiency of the Plaintiffs' complaint. In reviewing a
Rule 12(b)(6) motion, the Court must “construe the
complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all inferences in
favor of the plaintiff.” DirecTV, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The Court,
however, “need not accept as true legal conclusions or
unwarranted factual inferences.” Id. (quoting
Gregory v. Shelby County, 220 F.3d 433, 446 (6th
Cir. 2000)). The Supreme Court explained that in order
“[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, 129 S.Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Courier v. Alcoa
Wheel & Forged Products, 577 F.3d 625, 629 (6th Cir.
Plaintiffs sue Defendants in their individual capacities
only. [R. 1-2.] When Plaintiffs filed their complaint in
Franklin Circuit Court, they attempted service in compliance
with the Kentucky Rules of Civil Procedure, which allow
service of the summons and complaint by registered mail or
certified mail return receipt requested. CR 4.01(1)(a).
Service is complete upon delivery of the envelope, and the
return receipt serves as proof of place, time, and manner of
sent a copy of the summons and complaint to the Defendants
via certified mail, but addressed each of their envelopes to
the KDOC, their work addresses, rather than their home
addresses. [R. 61-1; R. 61-2; R. 62-1.] Each of these return
receipts were signed for, returned, and filed with the Court.
Id. Upon removal of this Court, Mr. Ballard, Dr.
Crall, Ms. Crews, and Ms. Thompson had entered appearances in
Franklin Circuit Court. [R. 1 at 2.] After removal, they
filed a joint Notice of Consent for Removal [R. 5] and a