Savage v. Troutt

KENT G. SAVAGE, Plaintiff, v. JEFFERY TROUTT et al., Defendants.

Case No. CIV-15-670-HE

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

August 12, 2016

REPORT AND RECOMMENDATION

Plaintiff Kent G. Savage, an Oklahoma prisoner appearing pro se, has filed this civil rights action alleging violations of federal and state law. Compl. (Doc. No. 1) at 1-20.¹ Chief United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b). The four Defendants have filed a Motion to Dismiss (Doc. No. 39), and Plaintiff has filed a Motion for Summary Judgment (Doc. No. 48) . Each party has responded to the other's potentially dispositive motion (Doc. Nos. 47, 52). For the reasons that follow, the undersigned recommends that the Court grant in part and deny in part Defendants' Motion to Dismiss and deny Plaintiff's Motion for Summary Judgment.

I. Defendants' Motion to Dismiss

Defendants, comprising the Oklahoma Department of Corrections ("ODOC") and three current or former ODOC employees, have moved to dismiss Plaintiff's § 1983claims and one state-law claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Defs.' Mot. to Dismiss at 3-4 (§ 1983 official-capacity claims for damages), 5-6, 8-10 (§ 1983 individual-capacity claims), 12-14 (state-law grievance-procedure claim). Their motion does not directly address Plaintiff's claim that Defendant ODOC violated Title II of the Americans with Disabilities Act ("ADA") or Plaintiff's state-law claim for intentional infliction of emotional distress ("IIED") against Defendants Dr. Jeffery Troutt, Tami Grogan, and Genese McCoy. See id. at 13 n.2; Fed. R. Civ. P. 7(b)(1)(B). However, because Plaintiff is a prisoner and his lawsuit is an "action brought with respect to prison conditions under . . . [f]ederal law," this Court has an obligation to dismiss any portion of Plaintiff's complaint that "is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." See 42 U.S.C. § 1997e(c)(1); accord 28 U.S.C. § 1915A(b).

A. Standard of Review and Matters Considered

A Rule 12(b)(6) motion to dismiss challenges the legal sufficiency of the complaint itself. See MacArthur v. San Juan Cnty., 309 F.3d 1216, 1221 (10th Cir. 2002); Fed. R. Civ. P. 12(b)(6). "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, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A claim is facially plausible when the well-pled facts, accepted as true and viewed in the plaintiff's favor, "allow[] the court to draw the reasonable inferencethat the defendant is liable for the misconduct alleged" under the governing law.² Id. at 678-79 (explaining that legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not well-pled facts "entitled to the assumption of truth"); see Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1236 (10th Cir. 2013). The Court applies the same standard of review to screening dismissals under §§ 1915A and 1997e(c)(1) as to dismissals under Rule 12(b)(6). Cf. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) ("We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we employ for [Rule 12(b)(6)] motions to dismiss for failure to state a claim." (citing 28 U.S.C. § 1915(e)(2)(B)(ii) ("[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted."))).

Determining whether a claim survives dismissal is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. In making this determination, the Court "must consider the complaint in its entirety, as well as other sources courts ordinarily examine when rulingon Rule 12(b)(6) motions to dismiss." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007). These sources include: "(1) documents that the complaint incorporates by reference; (2) documents referred to in the complaint if the documents are central to the plaintiff's claims and the parties do not dispute the documents' authenticity; . . . (3) matters of which a court may take judicial notice"; and (4) in limited circumstances, documents within a special report filed pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (citations and internal quotation marks omitted).

Plaintiff's response to Defendants' Motion to Dismiss contains factual allegations and legal theories, as well as evidentiary material, that were not presented in his pleading. See, e.g., Pl.'s Resp. Br. (Doc. No. 47) at 7-8, 10 (describing the substance of Plaintiff's conversations with Defendant Troutt and alleging for the first time that Defendant Troutt substituted regular-strength ibuprofen for prescription-strength Neurontin), 11-12 (alleging for the first time that Defendant Grogan "failed to accommodate [Plaintiff's] disability"), 15 (arguing for the first time that an Oklahoma statute and administrative policy "create a protected liberty interest in the prison grievance procedure"); Pl.'s Resp. Br. Exs. 1-18 (Doc. Nos. 47-1 to 47-18) (exhibits not referenced in the Complaint). Neither party has asked the Court to treat Defendants' Rule 12(b)(6) motion as one for summary judgment under Federal Rule of Civil Procedure 56. See Pl.'s Resp. Br. at 1; Defs.' Resp. Br. (Doc. No. 52) at 3-4. Accordingly, the undersigned declines to convert Defendants' Motion to a request for summary judgment and has not considered Plaintiff's newly presented evidentiary material (Doc. Nos. 47-1 to 47-18) in evaluating thesufficiency of Plaintiff's Complaint. See Lowe v. Town of Fairland, 143 F.3d 1378, 131 (10th Cir. 1998).

The undersigned has considered, however, the additional well-pled allegations in Plaintiff's Response Brief that are consistent with the facts and theories asserted in his Complaint. See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001); Barnes v. City of Okla. City ex rel. Okla. City Police Dep't, No. CIV-10-1338-D, 2011 WL 5326251, at *4 (W.D. Okla. Nov. 3, 2011) ("[T]he Court, in its discretion, may consider additional factual allegations offered in Plaintiffs' response brief 'if they are consistent with the facts and theories advanced in the complaint,' regardless of whether Plaintiffs have requested leave to amend or offered an amended pleading." (alteration omitted) (quoting Hayes, 264 F.3d at 1025)); Andrews v. Andrews, No. CIV-05-110-HE, 2006 WL 771578, at *1 n.3 (W.D. Okla. Mar. 27, 2006) ("Additional allegations contained in the plaintiffs' briefs, to the extent they consist of well-pleaded facts that are 'consistent with the facts and theories advanced in the complaint,' have been considered in determining the sufficiency of the plaintiffs' federal claim." (quoting Hayes, 264 F.3d at 1025)).

B. Plaintiff's Allegations and Relief Sought

Plaintiff's claims primarily stem from Defendants' alleged failure to properly treat his multiple sclerosis ("MS"), constipation, and seasonal allergies while Plaintiff was incarcerated at James Crabtree Correctional Center ("JCCC"), an ODOC facility, between August 2014 and June 2015. See Compl. at 3, 5-9, 16-21. Plaintiff names as Defendants ODOC and three of its current or former employees: Dr. Jeffery Troutt,Plaintiff's treating physician at JCCC; Tami Grogan, JCCC's Health Services Administrator; and Genese McCoy, ODOC's Medical Service Administrator. Id. at 1-2.

Plaintiff alleges that he was diagnosed with MS when he was thirty-three years old. Id. at 4. Plaintiff—explaining that MS "is a chronic degenerative disease of the central nervous system, in which the gradual destruction of myelin in patches throughout the brain or spinal cord or both, interferes with the nerve pathways and causes muscular weakness, loss of coordination, and speech and visual disturbances"—states that "[o]ver the years, [he] has experienced reduced feeling in his hands and feet, coordination problems, muscle spasms, and considerable tingling in his feet." Id. at 4, 5. Plaintiff had at least one MRI and one consultation with a neurologist before he was incarcerated in January 2012. See id. at 5.

Plaintiff was previously incarcerated at a different ODOC facility, Joseph Harp Correctional Center ("JHCC") in Lexington, Oklahoma. Id. "Prison doctors there provided him with Copaxone, which is a MS maintenance medication, but not a pain reliever." Id. (alleging that a neurologist "prescribed Copaxone for maintenance of [Plaintiff's] MS" in November 2012). These doctors also prescribed Flonase to treat Plaintiff's seasonal allergies and Metamucil to "offset the side effects of Copaxone." See id.

Plaintiff was transferred from JHCC to JCCC in August 2014. He alleges that Defendant Troutt, who was "the only person [at JCCC] who c[ould] prescribe, change, or discontinue inmates' medications," "refused" to refill Plaintiff's Flonase and Metamucil and "gave no reason for discontinuing these medications." See id. at 6, 7, 18; accordPl.'s Resp. Br. at 8 ("Dr. Troutt arbitrarily discontinued Flonase, without any discussion or explanation, and without providing any alternative sinus medication."). Defendant Troutt eventually gave Plaintiff a medication "similar" to Flonase to treat the "serious respiratory and sinus problems" that Plaintiff suffers during allergy season. Compl. at 5, 7.

In January 2015, Defendant Troutt sent Plaintiff to the University of Oklahoma Medical Center ("OUMC") for follow-up "MRIs and exams by a specialist neurologist." Id. at 6; see also Compl Ex. 1 (Doc. No. 1-1) at 2-4 (OUMC...