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Howard v. Montgomery County

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

June 18, 2018

JAMES J. HOWARD, Plaintiff,
v.
MONTGOMERY COUNTY JAIL, et al., Defendants.

          Thomas M. Rose, District Judge.

          REPORT AND RECOMMENDATION [1] THAT: (1) DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT (DOCS. 50, 52) BE GRANTED; (2) PLAINTIFF'S SECOND AMENDED COMPLAINT (DOC. 49) BE DISMISSED; AND (3) THIS CASE BE TERMINATED ON THE COURT'S DOCKET

          Michael J. Newman, United States Magistrate Judge.

         This is a 42 U.S.C. § 1983 civil rights action brought by Plaintiff James Howard[2] against Montgomery County, Ohio; Montgomery County Sheriff Phil Plummer; Naphcare, Inc.; and Naphcare nurses Theresa Wallace and Valerie Beirse. This action concerns, inter alia, Defendants' alleged deliberate indifference to Plaintiff's serious medical condition, i.e., diabetes, while Plaintiff was a pretrial detainee in the Montgomery County Jail between March and September 2015. According to Plaintiff, such deliberate indifference ultimately resulted in the loss of the toes on his right foot.

         Now before the Court are the following two motions to dismiss Plaintiff's second amended complaint: (1) a motion filed by Montgomery County and Sheriff Plummer (collectively referred to as the “County Defendants”) (doc. 50); and (2) a motion filed by Naphcare, Wallace, and Beirse (hereinafter collectively referred to as “the Naphcare Defendants”) (doc. 52). Plaintiff, through his attorneys, filed memoranda in opposition to Defendants' motions. Docs. 51, 60. Thereafter, Defendants filed separate reply memoranda. Docs. 53, 61. The undersigned has carefully considered all of the foregoing, as well as the allegations set forth in Plaintiff's second amended complaint, and Defendants' motions are now ripe for decision.

         I.

         The facts herein include the allegations pled by Plaintiff viewed in the light most favorable to him. See infra. Plaintiff James Howard suffers from diabetes. Doc. 49 at PageID 202. As a result of his diabetes, Plaintiff also suffers from neuropathy and related nerve damage. Id.

         During the period from March 28, 2015 to September 21, 2015, Plaintiff was a pretrial detainee in the Montgomery County Jail, pursuant to charges filed in the Montgomery County Common Pleas Court. Id. at PageID 203. While detained in early May 2015, Plaintiff developed an infection in one of the toes on his right foot. Plaintiff alleges that he informed “Defendants” of his infection, but received inadequate and/or untimely medical care. Id.

         Eventually, Plaintiff's condition deteriorated to the point that Defendants took him to the emergency department at Grandview Hospital in Dayton, Ohio for treatment on May 11, 2015. Id. at PageID 203. By the time Defendants brought Plaintiff to the hospital, the infection had spread to the fourth and fifth toes on his right foot, and the fourth toe had become necrotic. Id.

         Plaintiff alleges that, according to the emergency room doctor who then examined him, two of his infected toes on his right foot would have to be removed, but that the other three toes could be saved. Id. The doctor scheduled Plaintiff to return to the hospital the next day, May 12, 2015, but one of the deputies or corrections officers remarked that Plaintiff would not be permitted to return to the hospital the next day due to security concerns. Id. Instead, Plaintiff was returned to the hospital three days later on May 14, 2015, at which time he was evaluated for surgery. Id. Plaintiff was discharged on May 16, 2015, and the medical staff at the Jail were given instructions to follow up with the hospital on May 20, 2015 to discuss what further care Plaintiff would need, including the likely amputation of one or more toes. Id. at PageID 203-04. Despite the continued degradation of his medical condition, Plaintiff was not returned to Grandview Hospital until June 24, 2015, over a month later. Id. at PageID 204.

         As a result of the delay in treatment, Plaintiff's condition deteriorated to the point that it was necessary to amputate all five toes on his right foot, as well as portion of the foot itself. Id. Plaintiff now suffers from phantom limb pain from the missing toes, which are a direct result of Defendants' failure to provide him with medical care for his serious medical need. Id.

         On December 27, 2016, Plaintiff commenced this suit pro se by seeking leave to proceed in forma pauperis (“IFP”). Doc. 1. Plaintiff motion for leave to proceed IFP was granted the same day. Id. In his original complaint, Plaintiff named the following as Defendants: Montgomery County; Naphcare; a “Ms. Theresa”; a “Ms. Vallery”; Jane Doe #1; and John/Jane Doe x25. Doc. 3 at PageID 39. Plaintiff never served the original complaint on any of the Defendants named therein.

         On March 15, 2017, Plaintiff filed an amended pro se complaint prior to the completion of service of process on any Defendant and prior to the time any responsive pleading was filed in the case. Doc. 8. The Federal Rules permit Plaintiff to amend his complaint as a matter of course without leave having been previously granted by the Court. Fed.R.Civ.P. 15(a)(1). Thus, as of the filing of the amended complaint, it superseded the original. See Drake v. City of Detroit, Michigan, 266 Fed.Appx. 444, 448 (6th Cir. 2008) (stating that “an amended complaint super[s]edes all prior complaints). In that properly filed amended pro se complaint, Plaintiff named three Defendants: Montgomery County Sheriff Phil Plummer; Montgomery County; and Naphcare. Doc. 8 at PageID 53. Accordingly, as of March 15, 2017, Theresa, Vallery, and all Jane and John Doe defendants were no longer defendants in this action. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989); see also doc. 28 at PageID 104.

         In a Report and Recommendation issued on May 22, 2017, Judge Merz -- to whom this case was then assigned -- clarified that the case was before the Court on Plaintiff's pro se amended complaint and that the Sheriff, Montgomery County, and Naphcare were the only named Defendants in this case. Doc. 28 at PageID 104. In addition, Judge Merz recommended that the pro se amended complaint be dismissed as against Naphcare pursuant to Fed.R.Civ.P. 4(m) for lack of service of process and that the amended complaint as against the Sheriff and the County be dismissed for failure to state a claim upon which relief can be granted. Doc. 28 at PageID 104-06.

         Subsequently, Judge Merz stayed the case in an effort to find counsel to represent Plaintiff. Doc. 33. Thereafter, at the beginning of January 2018, counsel entered an appearance on behalf of Plaintiff. Docs. 36, 37, 39. Plaintiff, through new counsel, objected to the Report and Recommendation issued by Judge Merz (doc. 40) and, on January 31, 2018, moved for leave to file a second amended complaint (doc. 43). After briefing by the parties, Judge Rose granted Plaintiff's motion for leave to file a second amended complaint on February 15, 2018. Doc. 47. Upon granting Plaintiff leave to file a second amended complaint, the Court found the Report and Recommendation -- regarding dismissal of Plaintiff's amended complaint -- to be moot. Id.; see Drake v. City of Detroit, Mich., 266 Fed.Appx. 444, 448 (6th Cir. 2008) (noting that, upon the filing of an amended complaint, all previous complaints in the case are “a nullity, because an amended complaint supercedes all prior complaints”).

         On February 20, 2018, Plaintiff, through counsel, filed his second amended complaint (doc. 49, thus mooting and replacing the allegations in the amended complaint. See Drake, 266 Fed.Appx. at 448. In the second amended complaint, Plaintiff names the following Defendants: the Montgomery County Board of Commissioners; Montgomery County Sheriff Phil Plummer in his official capacity; Naphcare; Naphcare nurse Theresa Wallace in her individual capacity; and Naphcare nurse Valerie Beirise in her individual capacity. Doc. 49 at PageID 200-01. Plaintiff therein asserts claims under 42 U.S.C. § 1983 alleging that: (1) Defendants were deliberately indifferent to his serious medical needs; and (2) the County Defendants are liable pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978) ...


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