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Fullard v. Thomas

United States District Court, N.D. Florida, Tallahassee Division

January 23, 2018

WESLEY TIMOTHY FULLARD, Plaintiff,
v.
MARIA THOMAS, R.N., CARRIE RHODES, L.P.N., DR. MARY PLISKIN, and DR. VIRGINIA MESA, Defendants.[1]

          SECOND REPORT AND RECOMMENDATION [2]

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

Pending in this case are several motions to dismiss. First, Defendants Pliskin, Rhodes, and Thomas, filed a motion to dismiss, ECF No. 43, and the pro se Plaintiff has filed a response in opposition, ECF No. 46. Defendant Mesa also filed motion to dismiss, ECF No. 49, and Plaintiff filed a response to that motion as well. ECF No. 51. Defendants then filed a motion requesting leave to file a reply memorandum to Plaintiff's responses. ECF No. 53. That motion was granted, ECF No. 55, and Defendants' reply, ECF No. 57, has been considered. Although Plaintiff did not request leave to file a sur-reply, he did so on July 3, 2017, ECF No. 58, and that document has been considered as well.

         Allegations of the amended complaint, ECF No. 12

         Plaintiff's amended complaint [hereinafter after “complaint”] asserts an Eighth Amendment claim for the denial of medical care. Plaintiff alleged that on August 8, 2014, while housed at Jefferson Correctional Institution, he experienced chest pain and shortness of breath. Id. at 5. Because Plaintiff previously had four prior heart attacks, he had a “‘nitro' pill” in his cell and took that medication. Id. Plaintiff informed a dormitory officer of his medical condition and he was sent to the medical department. Id. at 7. Plaintiff alleged that Defendants Thomas and Rhodes were unable to “get the E.K.G. machine to work” and in their agitation, told Plaintiff “he was probably just having gas pain and started treating the plaintiff with Mallox.” Id. Plaintiff's assurance that he was, indeed, having a heart attack “fell on deaf ears.” Id. After approximately seven hours with no relief from the Mallox, the E.K.G. machine “finally starts working around 1:30 a.m.” Id. at 7-8. Plaintiff alleges that he was told to go lay down, but he asserts that he is made to wait too long for the ambulance. Id. at 8. He does not arrive at the hospital until around 3:30 a.m., and within fifteen minutes it is confirmed that he is “having a heart attack.” ECF No. 12 at 8. Plaintiff received medical care at the hospital and spent two days in the I.C.U. and another two days in another room before being released. Id. at 9. Plaintiff was then released and returned to Jefferson Correctional Institution where he spent two weeks in the infirmary. Id. He contends that he “received no additional medications, ” but was told by Defendant Pliskin that he would be sent to the “Lake Butler Medical Center”[3] to see a cardiologist. Id.

         After an examination by the cardiologist, Plaintiff was returned to Jefferson C.I. Id. at 10. He contends that he was not provided any new “medication for this new heart problem, just the same medicines [he] was already receiving.” Id. Since his return, Plaintiff alleges that his condition has worsened and he now has the “classic signs of congested [sic] heart failure.” Id.

         Plaintiff alleges that Defendant Mesa did not act in a timely manner, nor did she “follow proper procedure for a heart attack.” ECF No. 12 at 10. He contends Defendant Pliskin failed to properly train Defendants Rhodes and Thomas and asserts that because they did not follow proper protocol, he has suffered permanent damage to his heart. Id.; see also p. 6. As relief, Plaintiff seeks a declaratory judgment, injunctive relief, compensatory and punitive damages, as well as costs. Id. at 11.

         Standard of Review

         The issue on whether a complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted is whether the plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring the standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).[4] “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.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 at 556); see also Speaker v. U.S. Dep't of Health, 623 F.3d 1371, 1380 (11th Cir. 2010). “The plausibility standard” is not the same as a “probability requirement, ” and “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 at 556). A complaint that “pleads facts that are ‘merely consistent with' a defendant's liability, ” falls “short of the line between possibility and plausibility.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 at 557).

         The pleading standard is not heightened, but flexible, in line with Rule 8's command to simply give fair notice to the defendant of the plaintiff's claim and the grounds upon which it rests. Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (“Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions.”). Pro se complaints are held to less stringent standards than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)). Nevertheless, a complaint must provide sufficient notice of the claim and the grounds upon which it rests so that a “largely groundless claim” does not proceed through discovery and “take up the time of a number of other people . . . .” Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (quoted in Twombly, 127 S.Ct. at 1966). The requirements of Rule 8 do “not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79, 129 S.Ct. at 1949. A complaint does not need detailed factual allegations to survive a motion to dismiss, but Rule 8 “demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” 556 U.S. at 678, 129 S.Ct. at 1949. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S., at 555, 127 S.Ct. 1955).

         Courts should take a “two-pronged approach” when considering a motion to dismiss under Rule 12(b)(6). Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950. The first consideration is whether the complaint presents “well-pleaded factual allegations” which are entitled to a presumption of truth or, whether, the complaint merely asserts “legal conclusions” which “are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. at 1950. If the complaint contains factual allegations that are well pled, the second step is to consider whether the non-conclusory factual allegations “plausibly give rise to an entitlement to relief.” Id. If so, a motion to dismiss should be denied. Id., at 680, 129 S.Ct. at 1950-51 (citations omitted).

         ANALYSIS

         A. First Motion to Dismiss, ECF No. 43

         Defendants Thomas, Pliskin, and Rhodes argue that Plaintiff's complaint is insufficient to state an actionable constitutional claim. ECF No. 43 at 10. They assert that Plaintiff was given nitroglycerine and was observed, but the EKG was malfunctioning. Id. at 9. After it properly functioned, Plaintiff was “sent to the hospital, where he had cardiac catheterization surgery to route vessels around vascular blockages.” Id. at 9-10. Thus, Defendants contend that Plaintiff was provided medical care and his allegations that the “nurses mistook his symptoms for gas pains . . . amounts to no more than negligence.” Id. at 10.

         Plaintiff argues that he has presented sufficient facts to state an Eighth Amendment claim against the Defendants.[5] ECF No. 46 at 3-4. Plaintiff points out that Defendants ignored his complaints of pain which were documented in his medical records. Id. He additionally contends that Defendants also showed deliberate indifference by refusing to review his medical records. Id. at 4. Plaintiff argues that Defendants unreasonably delayed taking him to the hospital for treatment because a heart attack is a life threatening condition which requires immediate medical attention. Id. at 4 (citing to, inter alia, Lewis v. Wallenstein, 769 F.2d 1173, 1183 (7th Cir. 1985) (stating that “an immediate response to a cardiac arrest case is crucial - seconds count.”), and p. 11 (arguing that “time is of the essence when someone is experiencing a heart attack.”). Plaintiff ...


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