Rix v. Mcclure

MICHAEL D. RIX, Plaintiff,

v. TERRY MCCLURE, in his official capacity as administrator ofCowley County Department of Corrections, BRYAN C. DAVIS, GREG POWERS, andKRISTIE POWERS, Defendants.

Case No. 10-1224-CM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: January 19, 2011

MEMORANDUM AND ORDER

Plaintiff brings this action, proceeding pro se and in forma pauperis, alleging violations of 42 U.S.C. § 1983 and the Americans with Disabilities Act ("ADA") against Terry McClure, in his official capacity as administrator of Cowley County Department of Corrections; Bryan C. Davis; Greg Powers; and Kristie Powers. Each defendant has filed a motion to dismiss (Docs. 22, 27, 30, and 34). Plaintiff subsequently filed a Motion to Amend (Doc. 54).

I. Factual Background¹

Plaintiff's complaint makes the following allegations. Beginning on May 11, 2009, plaintiff was incarcerated at the Cowley County Jail ("Jail"). Although there is one day nurse/security employee at the Jail, it is a new facility, without a medical staff or an infirmary. Plaintiff arrived at themedical center with a number of medical problems. He is diabetic and has "multiple complications, including heart damage, Bi-lateral (sic) neurophysiology as well as myopathy." (Doc. 9, at 2.) Before plaintiff was incarcerated, the Jail staff was advised that there were very serious medical issues regarding plaintiff's care. Because plaintiff needed leg braces and a cane, he was housed in the holding area of the Jail. "[P]laintiff was refused required medication that was provided at the time of incarceration due to the medical technician having no training in the use of Lantus Insulin." (Doc. 9, at 2.)

Before breakfast on May 12, plaintiff's blood sugar became dangerously high—"IE: 294." (Doc. 9, at 2.) Plaintiff requested medical assistance, but because there were no medical personnel available, the security staff assisted him. That morning, plaintiff's blood sugar level remained elevated at 237. No action was taken to lower plaintiff's blood sugar. "[P]laintiff was refused necessary and appropriate diabetic meals." (Doc. 9, at 3.) The facility dietician informed plaintiff that diabetic meals were not available. Plaintiff's blood sugar level remained above 200 due to the lack of insulin.

On May 13, plaintiff's blood sugar level was 519. Medical staff was unavailable to assist plaintiff, and the on-call medical personnel failed to respond to pages and calls. Later that morning, plaintiff was transported to the hospital. At the hospital, plaintiff was treated for Ketoacidosis—"a condition created when appropriate insulin doses are not administered properly." (Doc. 9, at 3.) Several of the medical technicians informed plaintiff that they were unfamiliar with the use of Lantus. "After plaintiff's return to the Jail, Nurse Powers informed the plaintiff that things would get better." (Doc. 9, at 3.)

On May 14, a medical technician approached plaintiff to administer insulin. But, according to plaintiff, he or she combined "a lethal combination of Humolog Regular Insulin and Lantus Insulin." (Doc. 9, at 3.) This "combination causes coma and death and is fully explained in the written materialthat accompanies the [L]antus Insulin and is also clearly marked on the box." (Doc. 9, at 3.) Plaintiff's primary care physician, Dr. Dirk Smith, insisted plaintiff receive "all medication that was not provided to plaintiff due to facility policy." (Doc. 9, at 3.)

On May 15, "the defendants failed to provide medical coverage[, which] resulted in plaintiff not receiving appropriate medications such as insulin." (Doc. 9, at 3.) "[P]laintiff was informed that there would be no nursing staff [because] Nurse Powers was across the street smoking meat for the Sheriff's Department cook out [sic]." (Doc. 9, at 3.) At approximately one o'clock, plaintiff became ill from a lack of insulin. The security staff tested his blood sugar level, which tested at 368. In response to several calls, Nurse Powers sent his wife, Kristie Powers, to treat plaintiff. Ms. Powers is not an employee of the Jail. Ms. Powers was unable to review plaintiff's chart to apply the appropriate medical care and did not examine plaintiff.

On May 16, plaintiff was informed that there were only three medication calls because there was no medication technician working in the evening. Plaintiff requires two types of insulin. One of those, Lantus Insulin, is taken in the evening. Plaintiff was refused his evening dosage that day.

On May 17, plaintiff "was not allowed to check his blood sugar numbers." (Doc. 9, at 4.) Plaintiff was informed that the medication technician was neither "qualified nor licensed to provide injections and that the corrections staff was not allowed to deliver medications to inmates." (Doc. 9, at 4.)

During the ten days of incarceration, plaintiff was in an isolation cell and did not receive recreation or exercise. Later, Nurse Powers told plaintiff that because of plaintiff's complaints of medical problems with the Jail, "the defendant" contacted the court to have plaintiffs sentence modified to remove him from the Jail because the Jail could not appropriately care for plaintiff. (Doc. 9, at 4.) The request was granted, and plaintiff was required to pay for home confinement, which caused plaintiff financial hardship.

Dr. Smith and Dr. Bryan Davis were contacted several times over the course of plaintiff's incarceration, but no changes were made to his medical regime and no examination of plaintiff was ever done.

While at the Jail, plaintiff was denied exercise time, remained in a holding cell with the lights on continuously, and was only allowed to shower at the staff's convenience. Plaintiffs showers were separated by days at a time.

II. Plaintiff's Motion to Amend

Plaintiff seeks to amend his Complaint to bring an additional claim against all of the defendants. Plaintiff asserts that defendants violated "Title IV of the Health Insurance Act" by obtaining, releasing, or exchanging his personal medical information without his consent.

Under Federal Rule of Civil Procedure 15(a), after the time for amending the pleadings as a matter of course has passed, a party may amend its pleadings "only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citation omitted). The court's decision to grant leave to amend a complaint is within the court's discretion. Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991).

Kansas District Court Local Rule 15.1 requires that a party seeking to amend "(1) set forth a concise statement of the amendment or leave sought; (2) attach the proposed pleading or other document; and (3) comply with the other requirements of D. Kan. Rules 7.1 through 7.6." D. Kan. Rule 15.1. Pro se litigants are subject to these same requirements. Auld v. Value Place Prop. Mgmt LLC, No. 09-1139-EFM, 2010 WL 610690, at *14 n.79 (D. Kan. Feb. 19, 2010) (stating that the court would also deny the motion to amend for not attaching the proposed pleading and noting that a plaintiff's pro se status does not relieve him from complying with this court's procedural requirements).

Plaintiff's motion is a good example of why parties are required to attach the proposed amended pleading to the motion to amend. Plaintiff's motion sets forth a claim under "Title IV of the Health Insurance Act." (Doc. 54, at 1.) Perhaps plaintiff is attempting to assert a claim under the Health Insurance Portability and Accountability Act (HIPAA)?² In any event, the court is unclear what claims plaintiff seeks to assert. And, as is evident from defendants' responses to the motion, they too are unclear about what laws plaintiff is alleging they violated. Defendants are not required to guess the nature of plaintiff's claims.

Additionally, plaintiff's motion asserts the claim against all defendants; however, the factual allegations alleged in the current Amended Complaint do not support his claim. For example, the Amended Complaint does not allege that Dr. Davis was involved in the event giving rise to plaintiff's new claim regarding his personal medical information.

For these reasons, plaintiffs motion is denied without prejudice. Plaintiff may file a proper motion to amend if he has valid claims to assert; however, he must follow the court's rules and procedures. If plaintiff chooses to file a motion to amend his complaint, he should be mindful that he must identify the laws that he alleges the defendants violated and provide legal and factual allegations to support his claims.

III. Defendants' Motions to Dismiss

a. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must present factual allegations that "raise a right to relief above the speculative level" and 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, 555, 570 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The allegations must be enough that, if assumed to be true, the plaintiff plausibly, not merely speculatively, has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "'Plausibility' in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the [plaintiff 'has] not nudged [its] claims across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570). Under this standard, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the...