Scriven v. Vitalcore Health Strategies, LLC

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MICHAEL A. SCRIVEN, Plaintiff, v. VITALCORE HEALTH STRATEGIES, LLC (named as “Vital Core, LLC”), et al., Defendants.

No. 22-3282-EFM-RES

United States District Court, D. Kansas

May 9, 2024

MEMORANDUM AND ORDER

ERIC F. MELGREN CHIEF UNITED STATES DISTRICT JUDGE

Pro se Plaintiff Michael Scriven brings this action against Defendants VitalCore Health Strategies, LLC (incorrectly named as “Vital Core LLC”), Jennifer Ehrlich Tracy Staley, Dr. Harold Stopp, Ryan Fickle, and Dr. John Tomarchio (incorrectly named as “Demarco”) for alleged violations of his constitutional rights while in custody at the Sedgwick County Jail. Plaintiff asserts two claims: (1) violation of his Fourteenth Amendment rights under 42 U.S.C. § 1983 and (2) conspiracy under 42 U.S.C. § 1985. Defendants each filed a Motion to Dismiss Plaintiff's claims (Docs. 11, 14, 17, 20, 23, 26). As explained below, the Court grants in part and denies in part each Defendants' Motion.

I. Factual and Procedural Background^[1]

Plaintiff is a pretrial detainee at the Sedgwick County Jail. He suffers from a number of chronic health conditions including a prosthetic pelvis; plates in each right and left acetabulum; over 10 screws in that hardware; a prosthetic right hip; a rod in the right femur; hardware in the left sacral iliac joint holding the joint together; pins and plates in the right ribs; a traumatic brain injury neuropathy/paralysis; severe tendinopathy; arthritis; severe degenerative joint disease; dystrophic calcification of the soft tissue; and heterotrophic ossification affecting his hips and pelvis. He also has huge palpable masses of bone growth in his abdomen, pelvis, hips, and legs, digging into tissue and muscle.

After being injured in 2019, Plaintiff began a series of different medicines to treat his chronic pain. Eventually his care provider prescribed him Tramadol. Defendants Dr. Stopp, physician at the Sedgwick County Jail, and Nurse Fickle, Director of Nursing at the Sedgwick County Jail, approved this treatment. As Plaintiff's condition worsened, Dr. Stopp and Nurse Fickle sent him to an outside orthopedic specialist. The orthopedic specialist determined that numerous complex surgeries would be required to remove the calcification and ossification, that Plaintiff likely would not survive the surgeries, and if he did, he would likely never walk again. The specialist ordered two medications in addition to the Tramadol and ordered an MRI. At Plaintiff's follow up appointment, the orthopedic specialist doubled Plaintiff's Tramadol prescription and decided he should consult with an orthopedic surgeon to discuss removing some of the bone growth that was cutting into the muscle and tissue.

The double dose of Tramadol was effective and approved by Wellpath, the former healthcare provider at the Sedgwick County Jail, Dr. Stopp, and Nurse Fickle. While Plaintiff was waiting for his appointment with an orthopedic surgeon, VitalCore became the healthcare provider for the Sedgwick County Jail. VitalCore denied Plaintiff Tramadol and offered him ibuprofen or Tylenol instead. Plaintiff suffered extreme pain and distress because of the denial of Tramadol.

Plaintiff alleges in further detail that on September 6, 2022, Defendant Tracy Staley, a nurse practitioner at the Sedgwick County Jail, denied him Tramadol for his pain treatment and offered him ibuprofen instead. Plaintiff explained to Nurse Staley his chronic conditions, his past medical treatment, and the extent of his pain. Nurse Staley responded, “I have no doubt it [Tramadol] helps you,” but explained that she needed to speak with Dr. Stopp and Nurse Fickle first to make sure she would not lose her job for giving him Tramadol. Plaintiff then told Nurse Staley that he could not have nsaids (a type of medication which includes ibuprofen) because they are dangerous to his stomach and they do not treat his pain.

Later that night, Nurse Staley told Plaintiff that she spoke with Dr. Stopp and Nurse Fickle, but they were discontinuing the Tramadol and prescribing Tylenol. Nurse Staley said it was policy and that it was enforced for every inmate. Plaintiff then told her acetaminophen hurts his stomach. Nurse Staley asked Plaintiff what he was going to take for his pain, and he said nothing. Nurse Staley then escorted him out of the clinic.

On September 21, Defendants Dr. Tomarchio, Medical Director of Vital Core, and Jennifer Ehrlich, Vice President of Vital Core, met Plaintiff in the clinic in response to his complaints that Nurse Staley would not give him Tramadol. They asked Plaintiff about his conditions, his past care and treatment, and the severity of his pain, which he fully described to them. Ehrlich told Plaintiff the problem is not the doctor or prescriber, but that it was a policy. Dr. Tomarchio told Plaintiff that removing the Tramadol is necessary to prepare Plaintiff's brain to receive the opiate pain medicine when he is released in the future. Dr. Tomarchio then asked Plaintiff about his muscle spasms and treated them. Plaintiff then returned to his cell.

On September 27, Plaintiff went back to the clinic and begged Nurse Staley for a medicine that would be safe for him to take. He said he was in severe pain, losing daily function, and in distress. Nurse Staley asked him if he had seen mental health services. Plaintiff then asked Nurse Staley if she knew the extent of his conditions, to which she responded yes. Plaintiff then asked her what she would give him for his pain, and she said “nothing” and asked the deputy to escort him out. Plaintiff alleges that Nurse Staley continued to put ibuprofen on his chart for 10 weeks and ignored his verbal complaints to her and others that the ibuprofen was not helping his pain.

On October 26, Plaintiff once again asked for medicine to help him. He was later called to the clinic and seen by another nurse. That nurse said she could not change his treatment but she would put him on the list to see his provider. Plaintiff, however, never saw the provider. Plaintiff later discovered that Nurse Staley put ibuprofen on his chart and would not take the appointment the nurse put in for him.

Plaintiff filed suit in October 2022. His Amended Complaint asserts the following claims under 42 U.S.C. § 1983: (1) a claim for deliberate indifference of his serious medical needs under the 14th Amendment against Defendants Nurse Staley, Ehrlich, and Dr. Tomarchio; (2) a claim for supervisory liability against Defendants Dr. Stopp and Nurse Fickle; and (3) a claim for Monnell liability against Defendant Vital Core. Plaintiff also asserts a claim for conspiracy under 42 U.S.C. § 1985 against all six Defendants. Plaintiff seeks compensatory damages of $400,000, as well as punitive damages of $1,000,000.

II. Legal Standard

Under Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a claim where the plaintiff has failed to state a claim upon which relief can be granted.^[2] Upon such a motion, the court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.' ”^[3] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.^[4] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of the claims and the grounds on which each claim rests.^[5] Under Rule 12(b)(6), the court must accept all factual allegations in the complaint as true and construe them in a light most favorable to the plaintiff.^[6] But the court need not afford such a presumption to legal conclusions.^[7] Viewing the complaint in this manner, the court must decide whether the plaintiff's allegations give rise to more than speculative possibilities.^[8] If the allegations in the complaint are “so general that they encompass a wide swath of conduct, much of it innocent, then a plaintiff has ‘not nudged their claims across the line from conceivable to plausible.' ”^[9] Pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers.”^[10] A pro se litigant is entitled to a liberal construction of his pleadings.^[11] If a court can reasonably read a pro se complaint in such a way that it could state a claim on which it could prevail, it should do so despite “failure to cite proper legal authority . . . confusion of various legal theories . . . or [Plaintiff's] unfamiliarity with the pleading requirements.”^[12] However, it is not the proper role of a district court to “assume the role of advocate for the pro se litigant.”^[13]Additionally, a pro se litigant is not excused from complying with the rules of the Court and is subject to the consequences of noncompliance.

III. Analysis

A. Defendants' Motions to Dismiss Based on Eleventh Amendment Immunity

Plaintiff sues Nurse Staley, Dr. Stopp, Nurse Fickle, Dr. Tomarchio, and Ehrlich in their individual and official capacities and VitalCore in its official capacity. Defendants argue that Plaintiff's claims against them in their official capacity are barred by the Eleventh Amendment.^[14]The Eleventh Amendment generally bars suits against states based on their sovereign immunity.^[15] It also bars federal court jurisdiction over a state official acting in his official capacity in a suit for damages.^[16] Immunity under the Eleventh Amendment is extended to “entities created by state governments that operate as alter egos or instrumentalities of the states” through the arm of the state doctrine.^[17] The entity asserting Eleventh Amendment immunity bears the burden of establishing that it is an arm of the state.^[18]

The determination of whether an entity is an arm of the state is a two-part analysis....