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Jager v. Mulheron

United States District Court, D. New Mexico

December 7, 2018

TODD JAGER, Plaintiff,
v.
JAMES MULHERON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant James Mulheron's Motion to Dismiss for Failure to State a Claim and Qualified Immunity (doc. 18) and the attendant briefing (docs. 23, 28). For the following reasons, the Court hereby DENIES the Motion.

         I. Factual Background

         On a motion to dismiss, the Court takes as true all well-pleaded facts alleged by the non-moving party. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The applicable version of events is that asserted by Plaintiff, and the following recitation is therefore drawn directly from the Complaint. See Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004) (on a motion to dismiss, “we adopt the facts as stated in the complaint”).

         Plaintiff filed the Complaint in this action on August 3, 2018. Doc. 1. At all relevant times, Plaintiff was incarcerated in Doña Ana County, New Mexico, at the Southern New Mexico Correctional Facility (“SNMCF”).[1] Id. at 1-2. During the same period, Defendant Mulheron served as warden of the SNMCF. Id.

         On May 31, 2016, another inmate attacked Plaintiff, punching him in the face. Id. at 6-7. Plaintiff received medical attention at the SNMCF infirmary, where it was determined that he had “severe injuries to his face, including a deformity noted as an ‘indented' cheek bone.” Id. at 7. On June 1, 2016, Plaintiff was transported to Memorial Medical Center (“MMC”) and had x-rays taken. The radiologist's report included a finding of separated facial bones and recommended a CT scan to look for facial fractures. Id. Defendant Klinger, a Certified Nurse Practitioner at SNMCF (id. at 3), requested approval for a CT scan on June 7, 2016.[2] Id. at 8. The request was marked “routine” rather than “urgent.” Id. Importantly for purposes of Defendant Mulheron's liability, Plaintiff also alleges that:

The CT scan of Mr. Jager's injuries was also delayed due to custom and/or policy at the SNMCF that prisoners cannot be transported for medical appointments during lockdown, and the SNMCF was in lockdown starting on June 8, 2016.

Id. Defendant Mulheron, as warden, “promulgated, implemented, enforced and/or maintained” this policy. Id. at 15. Plaintiff does not, however, specify the duration of the June 8, 2016 lockdown.

         On June 24, 2016, more than three weeks after the initial attack, Plaintiff was again transported to MMC for a CT scan. Id. at 8. The radiologist diagnosed a “[q]uadripod fracture of the left orbit with severe associated deformity, ” as well as “significant” fractures of the sinus and zygoma (cheekbone) and a displaced cheekbone. Id. at 9. Though Defendant Andrade was aware of the need for surgery as of July 2, 2016, [3] he did not request a surgical consult until July 11, 2016, six weeks after the initial injury. Id. at 9-10. Plaintiff was finally taken to see an otolaryngologist on September 29, 2016, but new CT scans were required before proceeding. Id. at 12. Defendant Klinger additionally requested a non-urgent ophthalmology consult on July 26, 2016. Id. at 10. On August 1, 2016, an ophthalmology appointment was approved for October 10, 2016.[4] Id. At the appointment, the ophthalmologist indicated that a new CT scan would be needed before discussing surgery. Id. at 12.

         Defendant Andrade requested a new CT scan on October 8, 2016, and it was performed on October 20, 2016. Id. Plaintiff's “left facial fractures” were reidentified on the updated scan, and on December 1, 2016-26 weeks after the initial injury-Plaintiff was seen by a surgical specialist. Id. at 13. Bones fuse within four to six weeks after fracture (id. at 10), and the specialist explained that Plaintiff's bones had “healed incorrectly, causing permanent injuries, including a visible facial deformity” (id. at 13). The only possible courses of treatment were either to insert a facial implant or to rebreak the facial bones and reset them. Id. Both options carried significant potential complications including “blindness, drastic head and facial scarring, pain, and a long healing period.” Id. From the time of the initial attack to the December 1 surgical consult, Plaintiff made numerous complaints of pain and other significant symptoms via Health Service Request Forms and in conversations with Defendants Klinger and Andrade. See id. at 8, 11, 14.

         Plaintiff filed the instant action on August 23, 2018, asserting claims against several defendants. Doc. 1. Defendant Mulheron is named only in Count II, which alleges violation of civil rights guaranteed by the Eight Amendment and enforceable through § 1983 of the Civil Rights Act of 1871. Id. at 14, 15. Defendant Mulheron moves to dismiss all claims against him based on qualified immunity and failure to state a claim. Doc. 18. Plaintiff claims that Defendant Mulheron “promulgated, implemented, enforced and/or maintained” a policy that prisoners could not be transported for medical appointments during lockdown. Doc. 1 at 15. Plaintiff further alleges that this policy was a cause of the delay in receiving medical treatment for his injuries, and that it deprived him of reasonable medical care. Id.

         II. Standard of Review

         A. Motion to Dismiss Under 12(b)(6)

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Leverington v. City of Colorado Springs, 643 F.3d 719, 723 (10th Cir. 2011) (quoting Iqbal, 556 U.S. at 678). This standard does not require “detailed factual allegations, ” but it does require more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When ruling on a 12(b)(6) motion, the court must “assume the truth of all well-pleaded facts in the complaint, and draw all reasonable inferences therefrom in the light most favorable to the plaintiffs.” Leverington, 643 F.3d at 723 (quoting Dias v. City and Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). However, the court need not accept the truth of any legal conclusions. Iqbal, 556 U.S. at 678.

         The plausibility standard “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Rather, “a well-pleaded complaint may proceed even if it appears ‘that a recovery is very remote and unlikely.'” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The complaint must only be “enough to raise a right to relief above the speculative level…on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555. In other words, the well-pleaded facts must “permit the court to infer more than the mere possibility of misconduct”; otherwise, the plaintiff has not shown entitlement to relief. Iqbal, 556 U.S. at 679.

         B. Quali ...


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