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Johnson v. Lombardi

United States District Court, W.D. Missouri, Central Division

August 9, 2016

LARRY EUGENE JOHNSON, Plaintiff
v.
GEORGE LOMBARDI, et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY United States District

         Plaintiff Larry Eugene Johnson, an inmate, brings this suit alleging Sixth and Eighth Amendment violations under Section 1983 and a violation of the Missouri Sunshine Law under Mo. Rev. Stat § 610.023.3. Before the Court is Defendant Carey Markley’s Motion to Dismiss [Doc. 12]. For the following reasons, the motion is granted in part and denied in part.

         I.Background[1]

         Plaintiff Larry Johnson is an inmate at the Algoa Correctional Center in Jefferson City, Missouri. According to Johnson’s complaint, the Defendants-all corrections officers, directors, wardens, or other prison staff members-have repeatedly retaliated against Johnson for his attempts to file and pursue inmate grievances, meet in confidence with his attorneys, and defend himself at disciplinary hearings.

         The complaint provides several examples of these episodes. First, beginning in 2015, Johnson’s meetings and phone calls with his counsel were monitored by corrections officers. Second, Johnson was placed in administrative segregation after he fell in the shower and injured his face. Third, Johnson ordered legal materials in advance of a disciplinary hearing, but these materials were not delivered for four months. Fourth, while Johnson was required to sign a form acknowledging he received a copy of the Missouri Department of Corrections’ Offender Rulebook, he did not, in fact, actually receive a copy. Johnson’s mail was also searched; when his attorney attempted to send him a copy of the Offender Rulebook, it was found and confiscated. Fifth, Johnson was forced to attend a disciplinary hearing without his attorney. He was given a sentence at this hearing that exceeded the allowable sentence under DOC rules and extended his confinement period by three months.

         Sixth, Johnson was not provided medical care for a serious toothache. He first sought care by filing multiple Medical Service Request forms, which were ignored. Johnson then presented to Defendant John Doe Markley, a doctor, in an attempt to receive medical attention. Dr. Markley asked Johnson to sign a liability release; when Johnson refused, Dr. Markley slammed shut the prison cell’s chuckhole door, cutting him in the face. On later attempts to receive medical care, Dr. Markley and his staff, including Dr. Markley’s spouse, Defendant Carey Markley, repeatedly delayed Johnson’s appointment to have his tooth extracted. When the appointment finally took place, Johnson was forced to sign a waiver and the tooth was then removed in an unnecessarily painful manner.

         II. Discussion

         To survive a motion to dismiss, a 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 its allegations rise above the “speculative” or “conceivable, ” Twombly, 550 U.S. at 547, and where “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. Such a complaint will be liberally construed in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008).

         Defendant Carey Markley asks the Court to dismiss the two counts alleged against her: Count IV, which charges Markley with an Eighth Amendment violation for failing to provide medical care, and Count V, where Markley is charged with failing to implement a constitutionally-adequate administrative grievance process. Markley argues that Johnson has not sufficiently pled the elements of either claim.

         In the alternative, under Federal Rule of Civil Procedure 12(e), Markley moves for a more definite statement regarding the date Johnson sought medical care, the dates of his scheduled appointments, the date upon which he was refused medical treatment, the amount of time he suffered tooth pain, and the extent of the alleged conspiracy reached between Markley and her spouse, Defendant John Doe Markley, to punish him.

         A. Count IV

         Markley maintains that Johnson has not sufficiently pled his Eighth Amendment violation under Count IV. In her motion to dismiss, Markley notes that the complaint “never specifically allege[s] that [Markley] was deliberately indifferent to [Johnson’s] medical needs and care.” [Doc. 13, p. 4]. Further, because mere negligence or medical malpractice does not rise to a constitutional violation, Markley asserts Johnson must “allege what [Markley] specifically did that constituted cruel and unusual punishment.” Id.

         Yet the specificity sought by Markley does not reflect the pleading standard. In the Eighth Circuit, a prisoner or detainee must demonstrate “deliberate indifference” to support an allegation of constitutionally-deficient medical care. Barton v. Taber, 820 F.3d 958, 964-65 (8th Cir. 2016). While deliberate indifference is, therefore, a necessary component of Johnson’s claim, this does not mean that the term itself-or any other particular words or formulas-must be expressly mentioned in the complaint. See, e.g., Whitington v. Ortiz, 307 F.App'x 179, 189 (10th Cir. 2009) (“We likewise disagree with the conclusion that the complaint does not sufficiently allege deliberate indifference to the situation. Although the exact term was not used, the mental state of at least most of the defendants was directly or by implication alluded to.”); Brown v. Mitchell, 308 F.Supp.2d 682, 702 (E.D. Va. 2004) (“Although the Complaint does not use the preferred term “deliberate indifference, ” the words “willful disregard” convey a sufficiently similar meaning.”); Robert G. v. Newburgh Sch. Dist., 1990 WL 3210, at *2 (S.D.N.Y. Jan. 8, 1990) (“Although the complaint does not use the conclusory term “deliberate indifference, ” the Court reads the complaint as alleging facts from which deliberate indifference by the defendants can be inferred.”).

         Rather, because deliberate indifference demands “both an objective and subjective analysis, ” Scott v. Benson, 742 F.3d 335, 340 (8th Cir. 2014), a complaint must merely (1) “plead facts sufficient to demonstrate that [the plaintiff] suffered from an objectively serious medical need” and (2) plead that the defendant “actually knew” about, and disregarded, this risk to the plaintiff’s health. Barton, 820 F.3d at 964-65. An objectively serious medical need is “one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). As to the subjective component, “a complaint must allege ...


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