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Thomas v. Burkes

United States District Court, S.D. Ohio, Eastern Division

November 9, 2017

AMBER THOMAS, Plaintiff,
v.
RONI BURKES, et al., Defendants.

          OPINION AND ORDER

          ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court for consideration of Defendants' Motion to Dismiss (ECF No. 12.), Plaintiff's Response in Opposition (ECF No. 23), and Defendant's Reply (ECF No. 24). For the reasons that follow, Defendants' Motion to Dismiss is GRANTED.

         I. BACKGROUND

         Plaintiff, a prison inmate under the custody and control of the Ohio Department of Rehabilitation and Correction (“ODRC”), brings her claims pursuant to 42 U.S.C. § 1983 alleging that Defendants failed to provide her with adequate medical care. (Doc. No 1 at 2.) Plaintiff also posits various state-law tort claims. (Id. at 14-16.) Plaintiff sues Defendants in both their individual and official capacities. (Id.)

         In her Complaint, Plaintiff states that on January 2, 2012, she noticed a lump behind her right ear and requested an examination in the prison's medical unit. (Id. at 4-5.) According to Plaintiff, unnamed defendants examined her and treated her for an ear infection. (Id. at 5.) Plaintiff states that she received care from unnamed defendants “several times in 2012, ” which included examination and treatment of the lump as if it were an ear infection. (Id.) Plaintiff claims that the lump continued to expand during this time. (Id.)

         Plaintiff claims that throughout 2012 and 2013, unnamed defendants referred her to see the prison dentist, who referred her back to the medical unit, and an ear, nose, and throat (“ENT”) clinic at Franklin Medical Center (“FMC”), an ODRC facility. (Id.) Plaintiff claims she received no treatment for her condition from either the ENT or at FMC. (Id.) Plaintiff claims that on January 5, 2014, the prison dentist referred her to the Ohio State University dental clinic, where a surgeon diagnosed the lump as a partial parotid gland duct blockage and recommended treatment by an ENT. (Id. at 5-6.) According to Plaintiff, she saw the prison dentist again on July 28, 2014, and the dentist noted swelling around Plaintiff's right ear and TMJ area. (Id. at 6.) Plaintiff states that the dentist referred Plaintiff to an ENT specialist “ASAP.” (Id.) Plaintiff also states that in July or August 2014, the ODRC Bureau of Medical Services or the Collegial Review Committee denied the referral and sent Plaintiff back to the prison medical unit. (Id.) Plaintiff further states that, at the medical unit, she continued to receive treatment for an ear infection with referrals back and forth to the dentist. (Id.)

         According to Plaintiff's Complaint, on December 31, 2014, the dentist issued another referral to the ENT. (Id.) Plaintiff states that on January 13, 2015, John/Jane Doe Defendants 1-5 referred her to the ENT, who developed a treatment plan including a CT scan, biopsy, and follow-up care. (Id. at 7.) Plaintiff also states that she received the CT scan in February 2015 and underwent the biopsy procedure in May 2015. (Id.) Plaintiff further states, “These tests revealed plaintiff had a swollen right parotid gland and that her right salivary gland had a pleomorphic adenoma, which was benign then, yet, had the potential to become malignant.” (Id.)

         Plaintiff's Complaint states that in April 2015 she noticed decreased hearing in her right ear and informed the medical staff. (Id.) Plaintiff states that she underwent surgery to remove the tumor on June 5, 2015, and sustained nerve damage to the right side of her face due to the size of the mass. (Id.) Plaintiff states that on June 17, 2015, Plaintiff reported problems with her right eye and pain in her right ear. (Id. at 8) Plaintiff also states that on June 18, 2015, Defendant Ajibade saw her and prescribed “eye drops and told her to use them in her ear.” (Id.) According to Plaintiff, Defendant Ajibade also gave her pain medication. (Id.) Plaintiff further states that on June 20, 2015, her jaw and neck were swollen and she had continuing pain in her right ear. (Id.) Plaintiff states that she participated in a teleconference with a physician, who instructed Plaintiff to discontinue the eye drops and prescribed pain medication and antibiotics. (Id.)

         Plaintiff's Complaint states that she saw the ENT on July 1, 2015, for a follow-up appointment. (Id.) Plaintiff claims that her “right eye sustained permanent injury from delay in treating the mass; her eyelid does not close fully, she must use eye drops constantly throughout the day, use an eye lubricant at night, she now must wear eyeglasses and her eyes are light sensitive.” (Id.) Plaintiff claims she told Defendant Burkes about these problems on July 7, 2015, and that she had initial difficulty in obtaining a necessary eye lubricant that was eventually furnished to her. (Id. at 9.) Plaintiff states that she submitted several requests to Defendant Burkes asking for medical help throughout the time period at issue in this matter. (Id.) Plaintiff left ODRC custody on December 14, 2015. (Id.)

         According to Plaintiff, “defendants delayed and/or failed to provide requested and needed medical care and treatment . . . which demonstrates . . . deliberate indifference to plaintiff's serious medical needs.” (Id. at 10.) Plaintiff seeks compensatory damages in excess of $75, 000 against each Defendant, attorney fees, and $500, 000 against ODRC in punitive damages, and other relief as the Court deems appropriate. (Id. at 16.)

         II. Standard of Review

         To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of complaints.” 16630 Southfield Ltd., P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).

         Although this pleading standard does not require “‘detailed factual allegations, ' . . . [a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action, '” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).

         III. ...


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