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Rave v. Board of Commissioners for County of Bernalillo

United States District Court, D. New Mexico

August 18, 2017

DAVID RAVE, Plaintiff, HA



         This matter is before the Court on the County Defendant's Motion to Dismiss Plaintiff's Amended “Complaint for Civil Rights Violations” and Memorandum in Support Thereof, filed on June 27, 2017. (Doc. 11.) Jurisdiction arises under 28 U.S.C. § 1331. Having considered the submissions of counsel and relevant law, the Court will grant in part Defendant's Motion as outlined below.

         This lawsuit arises out of Defendants' alleged failure to provide Plaintiff with necessary, emergent medical care while he was incarcerated at the Bernalillo County Metropolitan Detention Center (MDC). Plaintiff brought a seven-count Complaint in the Second Judicial District Court, County of Bernalillo, State of New Mexico, on June 9, 2017. (See Doc. 1-A (Compl.).) Defendant Board of Commissioners for the County of Bernalillo (the County) removed the Complaint to this Court on June 12, 2017. (Doc. 1.)

         I. Statement of Facts

         The following facts are as alleged in Plaintiff's Complaint. Mr. David Rave (Plaintiff) suffers from end stage renal failure. (Compl. ¶ 11.) On Saturday, March 12, 2016, [1] Plaintiff was arrested and booked into the MDC. (Id. ¶ 9.) Plaintiff told the booking officer that he had chronic kidney disease and received dialysis three times a week on Tuesday, Thursday, and Saturday. (Id. ¶ 10.) He also told the booking officer that his last session was on Thursday, March 10, 2016. (Id.) Plaintiff was due for another treatment the day he was arrested.

         Plaintiff told the first corrections officer (CO) who put him in an open pod that he needed dialysis. (Id. ¶ 12.) Plaintiff told “medical” that he needed dialysis, but “nothing happened.” (Id.) Plaintiff also told a second CO, this CO said he had informed medical of Plaintiff's need. (Id. ¶ 13.) Plaintiff spoke to a Sergeant; the Sergeant advised Plaintiff to “tell the CO because it was not his job.” (Id.) Plaintiff began to suffer physical consequences: “[h]e couldn't sleep in spite of being tired, his body ached, and he [had] a hard time breathing.” (Id. ¶ 14.)

         Four days later, on March 16, 2013, Plaintiff told a CO to “please help me-I need medical.” (Id. ¶ 15.) Someone took Plaintiff to the medical unit with shortness of breath and chest pain; Plaintiff could not urinate and was swollen with fluid (approximately 50 pounds over his normal weight of 130). (Id.) Plaintiff had not had dialysis for six days. (Id. ¶ 16.)

         Plaintiff was transported to the University of New Mexico Hospital (UNMH) Emergency Room, where he was assessed with “shortness of breath, chest pain, high potassium (hyperkalemia) with EKG changes.” (Id. ¶ 17.) Plaintiff told UNMH staff that he was limiting his fluid intake, because he did not know when he would receive necessary dialysis, and he was unable to urinate. (Id. ¶ 18.) Plaintiff's potassium level was “critical at 8.2.” (Id. ¶ 19.) Plaintiff received hemodialysis twice that day, which is “hard on his body.” (Id.) Hospital staff noted that Plaintiff “needs HD [hemodialysis] support but he is not getting HD at the Jail so will continue HD while being admitted and ask social worker to be involved.” (Id.) In Plaintiff's March 19, 2016 Transfer Orders and Discharge Instructions, hospital staff noted, “Please make sure patient doesn't miss his HD sessions.” (Id. ¶ 21 (emphasis omitted).)

         Upon his return to the MDC, Plaintiff “was housed in SHU[2] pending clearance by the doctor.” (Id. ¶ 22.) Plaintiff told the COs that he needed to get dialysis and asked them to either speak to medical staff or have medical staff come to him. (Id. ¶ 23.) One CO told Plaintiff that he could not help and advised him to “file a grievance on the Kiosk . . . .” (Id. ¶ 24.) When Plaintiff went to the Kiosk, he found a sign that read “grievances could not be done at that time.” (Id.)

         At 11:15 p.m. the same evening, Plaintiff went to the MDC medical unit for complaints of chest pain and explained his medical needs and issues to the staff there. (Id. ¶ 25.) An ECG taken at the medical unit “showed inferior ST elevation[, ]” and Plaintiff was transported to the Emergency Room, where he was admitted on March 20, 2016, with acute pulmonary edema. (Id. ¶ 26.) Plaintiff received dialysis “several more times at the hospital . . . .” (Id. ¶ 27.) Plaintiff's March 23, 2016 Discharge Summary stated: “PLEASE BRING PATIENT BACK TO UNMH ON TUES, THU and SAT for Hemodialysis.” (Id. ¶ 28 (emphasis omitted).) The Discharge Summary also noted that the MDC did not have a dialysis center yet, so Plaintiff would need to come back to UNMH for dialysis. (Id.)

         Plaintiff was referred to Gibson Dialysis on March 23, 2016, with additional services approved for March 31, April 2, and April 5, 2016. (Id. ¶ 29.) Medical notes from this period reflect that Plaintiff had high blood pressure, which started to come down with dialysis. (Id. ¶ 30.) Staff at Gibson Dialysis advised Plaintiff to limit his fluid intake to one liter per day and to eat a renal (low sodium) diet. (Id.) Plaintiff asserts that MDC never gave him the required diet during his time there. (Id. ¶ 31.)

         Plaintiff presented to the MDC medical unit on March 24, 2016, reporting shortness of breath and a heavy chest. (Id. ¶ 32.) Plaintiff stated that he needed Dialysis treatment, and medical unit staff sent Plaintiff to the UNMH Emergency Room. (Id.) Plaintiff “was admitted to UNMH on March 24, 2016, presenting with dyspnea and hypoxia.” (Id. ¶ 34.) Due to his breathing, Plaintiff was intubated and admitted to the MICU. (Id.) Hospital notes from March 26, 2016, reflect that Plaintiff received dialysis daily. (Id.) A hospital physician told Plaintiff “that had he not been brought in, he may have had a heart attack and died.” (Id.) The March 29, 2016 discharge documents show that Plaintiff had dialysis that day and was in good condition, he should have a renal diet, fluids restricted to two liters per day, and he “needed Chem10 prior to dialysis.” (Id. ¶ 35, 37.) The Discharge Summary directed MDC staff to bring Plaintiff back to UNMH for hemodialysis on Tuesdays, Thursdays, and Saturdays. (Id. ¶ 35)

         Plaintiff “was housed in SHU until he was cleared to population on March 30, 2016.” (Id. ¶ 39.) Plaintiff received dialysis on March 31, April 2, 5, 7, 9, 12, and 15, 2016. (Id. ¶ 40.) Plaintiff was released from the MDC to Pre-Trial Services on April 13, 2016. (Id. ¶ 41.) Plaintiff continued to receive dialysis as scheduled, including on Tuesday, July 5, 2016, the day he was arrested on a probation violation. (Id. ¶ 42.)

         Plaintiff was transported from the MDC to Lovelace Hospital for dialysis on July 7, 2016. (Id. ¶ 43.) He was scheduled to receive dialysis on Saturday, July 9, but MDC did not take him due to “staffing issues.” (Id. ¶ 44.) MDC staff notes incorrectly stated that Plaintiff “was dialyzed at UNMH yesterday [July 8], so may be able to wait until next appt. on Tuesday.” (Id.)

         Plaintiff went to the Gibson Dialysis Clinic for dialysis on July 12, 2016. (Id. ¶ 45.) After his treatment, his blood pressure was high, he complained of a headache, and he was vomiting. (Id.) Clinic staff released Plaintiff to be evaluated by an MDC physician. (Id.) Plaintiff received dialysis treatments on July 14 and 16, and was scheduled for treatment on Tuesday, July 19, 2016. (Id. ¶ 46.) MDC's pharmacy tech noted that Plaintiff's dialysis was scheduled for 6:00 a.m., but he had court at 8:30 a.m. (Id.) The pharmacy tech wrote, “Spoke with provider Dr. McMurray; okay for patient to go to court. [Plaintiff] is scheduled to go to dialysis on Thursday at 0600.” (Id.)

         The next day, Plaintiff was transported to the UNMH Emergency Room with shortness of breath and respiratory failure. (Id. ¶ 48.) Plaintiff was intubated and transferred to the “MICU for respiratory arrest secondary to volume overload.” (Id.) Plaintiff's condition improved after hemodialysis, and he was later discharged back to MDC. (Id.) Plaintiff received regular dialysis for the remainder of July until his release from the MDC on July 28, 2016. (Id. ¶ 49.)

         Plaintiff was arrested for another probation violation on November 7, 2016, and was booked into the MDC. (Id. ¶ 50.) Plaintiff received some dialysis treatments while at the MDC, but he was admitted to UNMH again on November 13, 2016, “for ‘acute hypoxic respiratory failure likely secondary to fluid overload from non-compliance with hemodialysis as an outpatient' requiring intubation and urgent hemodialysis.” (Id. ¶ 51.) Plaintiff was discharged to the MDC on November 16, 2016. (Id.) He was readmitted to UNMH for “‘urgent' dialysis due to hyperkalemia/elevated potassium” on November 26, 2016. (Id. ¶ 52.) Plaintiff reported that the MDC had forgotten to take him to dialysis the day before. (Id.) Plaintiff's Complaint is silent on the date he was released from the MDC after his most recent probation violation.

         Plaintiff filed suit in state court against three named Defendants (the County, Correctional Healthcare Companies, Inc. (CHC), and Timothy McMurray, MD), and John Does 1-10 alleging: (1) negligence against Dr. McMurray; (2) violations of the Fourteenth and Eighth Amendments against all Defendants; (3) violations of the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act against the County and CHC; (4) negligent hiring, training, supervision, and retention against the County and CHC; (5) negligent medical care and treatment against all Defendants; (6) negligent operation of motor vehicles against the County; and (7) negligent operation of a building against the County. (See Id. ¶¶ 55-124) The County now moves to dismiss Counts Two through Seven of Plaintiff's Complaint for failure to state a claim.[3] (See Doc. 11.)

         II. Motion to Dismiss Standards

         In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015) (citations omitted). To survive a motion to dismiss, the complaint does not need to contain “detailed factual allegations, ” but it “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 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).

         III. Discussion

         A. Count Two-Cruel and Unusual Punishment in Violation of the Fourteenth and Eighth Amendments

         Plaintiff brings a claim for cruel and unusual punishment against all Defendants in Count Two. (Compl. at ¶¶ 62-75.) Before the Court examines the merits of Plaintiff's claim, there are several preliminary issues to consider.

         1. Preliminary Issues

         First, the County asserts that because Plaintiff failed to state in his Complaint that he had been released from the MDC at the time he filed his Complaint, his claim should be dismissed for failure to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act (PLRA). (Doc. 11, at 7-8.) It is true that if Plaintiff was incarcerated at the time he filed his Complaint, he would be subject to the exhaustion requirements of the PLRA. See Norton v. City of Marietta, Okla., 432 F.3d 1145, 1149-50 (10th Cir. 2005). If he had been released at the time he filed his Complaint, he would not have to satisfy the exhaustion requirement. See Id. at 1150. Plaintiff asserts in his responsive brief that he was not incarcerated at the time of filing. (Doc. 18, at 2.) The Court will analyze the County's Motion to Dismiss under the assumption that Plaintiff had been released at the time he filed his Complaint. The Court will, however, direct Plaintiff to file an amended complaint that includes the fact of his release date. Plaintiff's failure to file an amended complaint without including the release date will result in the dismissal with prejudice of his federal claim.

         Second, with respect to Count Two, Plaintiff asserts that he had the same rights as either a pretrial detainee (under the Fourteenth Amendment) or a convicted inmate (under the Eighth Amendment). (See Compl. at 10, n.1.) The County disputes “that Plaintiff was a ‘pretrial detainee' - given that he was repeatedly being arrested for probation violations, having already been adjudicated guilty . . . .” (Doc. 11, at 6 n.5.) It appears to the Court that Plaintiff was a pretrial detainee from the time of his initial arrest on March 12, 2016, through April 13, 2016, when he was released from the MDC to Pretrial Services. (Compl. ¶¶ 9-41.) The County's argument that Plaintiff's status was closer to that of a convicted inmate is more persuasive during Plaintiff's later two periods of incarceration after he had violated the terms of his probation. See Kellum v. Bernalillo Cty., No. CIV 14-00163 RB/CG, -- F.Supp.3d --, 2017 WL 3278948, at *3-6 (D.N.M. Jan. 27, 2017) (discussing the difference between a pretrial detainee and an incarcerated person). Plaintiff's status is largely irrelevant for the analysis of his federal claim, because the standard for a denial of medical care is the same for both pretrial detainees and incarcerated persons. But cf., Chavez v. Bd. of Cty. Comm'rs of Sierra Cty., 899 F.Supp.2d 1163, 1185 (D.N.M. 2012) (noting that “a plaintiff must plead the correct constitutional provision underlying the § 1983 claim to state a valid claim”) (citations omitted).

         Third, the County argues Plaintiff has failed to make allegations specific enough to state a claim against any of the individual “John Doe” Defendants. (See Docs. 11, at 6-7; 22, at 3-4 (“there simply cannot be a placeholder without a specific designation of which John Doe allegedly engaged in specific conduct that is allegedly actionable”).) Plaintiff argues in his response that the John Doe Defendants “can be held liable pursuant to 42 U.S.C. § 1983 for violations of Plaintiff's rights as ‘[a]ny official who “causes” a citizen to be deprived of her constitutional rights can also be held liable.'” (Doc. 18, at 5 (quoting Buck v. ...

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