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Kenney v. Department of Corrections

United States District Court, D. New Mexico

March 27, 2019

KEVIN KENNEY, Plaintiff,



         Before the Court is Plaintiff's Pro Se Tort Complaint (Doc. 1-1), which was removed to this Court on July 30, 2018. Plaintiff contends that prison officials were deliberately indifferent to his medical needs in violation of the Eighth Amendment. Defendants argue that Plaintiff's complaint fails to state a cognizable claim for relief. Having reviewed the matter under Rule 12(b)(6) of the Federal Rules of Civil Procedure and 28 U.S.C. Section 1915A, the Court will allow some of the claims to proceed and will dismiss some of the claims, but with regard to certain of the claims that will be dismissed, will grant leave to amend.

         I. Background[1]

         Plaintiff was previously incarcerated at the Northwest New Mexico Correctional Center (NNMCC). (Doc. 1-1 at 3). On April 26, 2018 at about 9:30 a.m., he began losing a large amount of blood from his rectum. Id. After cleaning the blood, Plaintiff went to the medical unit. Id. He described the bleeding to an intake nurse, who then spoke with Nurse Practitioner (NP) Bailly. Id.

         Plaintiff was still bleeding as he waited outside of NP Bailly's office. Id. He could overhear her talking to another inmate and showing him pictures of her dogs. Id. Plaintiff returned to his unit to shower, as he was bleeding profusely. Id.

         Plaintiff described the aforementioned events to Officer Aragon during the “11:00 a.m. Count.” (Doc. 1-1 at 3-4). Aragon directed Plaintiff to submit an informal complaint. Id. at 4. Plaintiff explained that he did not have time to prepare a complaint because he was losing large amounts of blood, but he ultimately returned to his dorm and complied with Aragon's instruction. Id. When the 11:00 a.m. Count was complete, Plaintiff informed Officer Valles that he had a medical emergency and needed to go to the medical unit. Id. Valles directed Plaintiff to “hold on until chow is called for the unit.” Id. Plaintiff waited but continued to lose blood. Id. He eventually left the pod as the door opened for another inmate. Id. He encountered a captain in the hallway, who called medical officials and directed them to see Plaintiff as soon as possible. Id.

         Plaintiff arrived at the medical unit some time after 11:00 a.m. (Doc. 1-1 at 4-5). He described his symptoms to NP Bailly, and she stated that she could only order laboratory tests and schedule a colonoscopy. Id. at 4. The intake nurse pricked Plaintiff with a needle three times before successfully drawing his blood. Id. A few minutes later, NP Bailly said she could not schedule a colonoscopy and that Plaintiff must go to the emergency room. Id. at 5. Plaintiff was transported to Cibola General Hospital (Hospital), where he was admitted. Id. On the following morning (April 27, 2018), doctors performed surgery and successfully stopped the bleeding. Id.

         The Hospital discharged Plaintiff on April 28, 2018. (Doc. 1-1 at 5). When he returned to NNMCC's medical unit for a clearance, a nurse stated that NP Bailly was changing some of Plaintiff's medications. Id. Plaintiff protested, but the nurse directed him to take the medications that appeared on the med-cart that evening. Id. Plaintiff slept through the med-cart delivery, and prison officials would not dispense his medication later that evening. Id. at 6. The next morning (April 29, 2018), a nurse informed Plaintiff that NP Bailly planned to dispense his blood-thinner in the morning rather than the evenings. Id. Plaintiff informed the nurse that his heart went into “fib-mood” at night, which increases the risk of heart failure or stroke. Id. The nurse immediately dispensed the blood thinner, but there were no other medications for Plaintiff on the med-cart that day. Id. Plaintiff alleges that he still has not received a new order for Toprol (a beta blocker); Cyclobenzaprine (a muscle relaxant); or Tylenol. Id.

         On June 6, 2018, Plaintiff filed the complaint in New Mexico's Thirteenth Judicial District Court, No. D-1333-CV-2018-0178. (Doc. 1-1). The Complaint names seven Defendants: (1) the Department of Corrections; (2) Warden Betty Judd; (3) Officer Valles; (4) Officer Aragon; (5) Health Services Medical Director Dyanne Leyba; (6) NP Bailly; and (7) Centurion Health Care. (Doc. 1-1 at 1). Plaintiff seeks unspecified money damages under 42 U.S.C. Section 1983, the Eighth Amendment, and state tort law based on the following claims:

(Count 1): Medical Malpractice - NP Bailly inappropriately refused to respond to Plaintiff's medical emergency;
(Count 2(a)): Cruel and Unusual Punishment/Deliberate Indifference to Medical Care -Defendants intentionally denied emergency medical care; and
(Count 2(b)): Failure to Carry out Medical Orders - NP Bailly refused to dispense medication and interfered with treatment in violation of the Eighth Amendment. (Doc. 1-1 at 6-7).

         Defendants CoreCivic, Judd, Valles, and Aragon removed the Complaint to this Court on July 30, 2018. (Doc. 1). Those same Defendants also filed a Motion to Dismiss under Rule 12(b)(6) (Doc. 3).

         II.Preliminary Motion for ...

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