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Malone v. Conley

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

April 2, 2018

MARLOWE MALONE, Plaintiff,
v.
NURSE PRACTITIONER CONLEY, et al., Defendants.

          Black, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a former inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, brings this action under 42 U.S.C. § 1983 against SOCF Nurse Practitioner Conley and three John/Jane Doe defendants alleging a violation of his constitutional rights. This matter is before the Court on defendant Conley's motion to dismiss (Doc. 9), plaintiffs memorandum in opposition (Doc. 15), and defendant's reply memorandum (Doc. 17). This matter is also before the Court on plaintiffs motion to amend the complaint to identify the John and Jane Doe defendants (Doc. 16) and defendant's memorandum in opposition (Doc. 18).

         I. Defendant Conley's motion to dismiss

         In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept all factual allegations as true and make reasonable inferences in favor of the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Only "a short and plain statement of the claim showing that the pleader is entitled to relief is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)). A complaint filed by a pro se plaintiff must be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Although a complaint need not contain "detailed factual allegations, " it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The Court need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Attain, 478 U.S. 265, 286 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. The complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (citations omitted).

         Plaintiffs complaint alleges that on July 15, 2016, he began a hunger strike to protest "an arbitrary guilty finding by the Rules Infraction Board" for manufacturing "hooch (alcohol)." (Doc. 3 at 2). He states that on July 18, 2016, he began to experience symptoms of his chronic conditions of pulmonary embolism and diabetes, including shortness of breath, lightheadedness, fainting, and "possibly seizures." (Id.). Plaintiff alleges he brought this to the attention of Jane/John Doe nurse during medical rounds.

         On July 24, 2016, plaintiff submitted a health service request slip complaining about his symptoms. He alleges he was seen by Nurse Hill on July 26, 2016 and explained to her his symptoms. That same day, plaintiff states he was seen by defendant Conley, Plaintiff informed Conley of his symptoms and Conley allegedly told plaintiff he would do nothing for plaintiff until plaintiff stopped his hunger strike.

         On July 31, 2016, Nurse Jane Doe gave plaintiff his medication and saw he was passed out on the floor. One hour later, she returned to plaintiffs cell, administered a finger stick, and observed plaintiffs sugar levels were extremely low. One-half hour later, plaintiff "was rushed to the infirmary to have a physical examination." (Id.).

         Plaintiff alleges that on August 8, 2016, John/Jane Doe nurse falsely documented information in an examination report to reflect that plaintiff was alert and oriented, had even and unlabored respirations, and was in no acute distress following an incident where plaintiff stumbled while being escorted from the shower.

         On August 9, 2016, plaintiff ended his hunger strike. He alleges that Nurse Conley drew his blood, which "showed serious deficiencies." (Doc. 3 at 3). Conley drew plaintiffs blood the following day and plaintiff was admitted to the Ohio State University Hospital, where he received two blood transfusions.

         Plaintiff alleges that defendant Conley violated his First and Eighth Amendment rights. He also alleges that the John and Jane Doe defendants violated his Eighth Amendment rights.

         Defendant Conley seeks dismissal of the complaint on the basis it fails to state a claim for relief. Defendant Conley also alleges he is entitled to qualified immunity. Defendant argues that plaintiff had no right to engage in a hunger strike that detrimentally affected his health. Defendant alleges "there is no requirement for Defendant to provide treatment outside of him instructing Plaintiff to end the strike to negate his health ailments" and, therefore, defendant is entitled to qualified immunity. (Doc. 9 at 5).

         A. Plaintiffs First Amendment Claim Against Defendant Conley

         Plaintiffs complaint alleges that defendant Conley violated his "First Amendment rights of freedom of speech and right to assemble through the denial of medical attention until plaintiff came off his hunger strike." (Doc. 3 at 3). Liberally construed, plaintiff alleges a First Amendment retaliation claim against defendant Conley in that Conley refused plaintiff medical care ...


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