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Smith v. McCollum

United States District Court, E.D. Missouri, Northern Division

September 12, 2019

DERRICK R. SMITH, Plaintiff,
v.
JEFFREY S. MCCOLLUM, Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon defendant Jeffrey S. McCollum, M.D.'s motion to dismiss plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The matter is fully briefed and ready for decision. For the following reasons, defendant's motion will be granted.

         I. Legal Standard

         The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, "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 for relief "must include sufficient factual information to provide the 'grounds' on which the claim rests, and to raise a right to relief above a speculative level." Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires a plaintiff to plead "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.

         When considering a motion to dismiss, the Court accepts as true all of the factual allegations contained in the complaint, even if it appears that "actual proof of those facts is improbable," id. at 556, and reviews the complaint to determine whether its allegations show that the pleader is entitled to relief. Id. at 555-56; Fed.R.Civ.P. 8(a)(2). The principle that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions, however. Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice"). In addition, all reasonable inferences from the complaint must be drawn in favor of the nonmoving party. Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001).

         II. Background

         On December 11, 2018, plaintiff, an inmate at Northeast Correctional Center ("NECC"), filed this 42 U.S.C. § 1983 civil rights complaint against Dr. McCullum for violation of plaintiff s Eighth Amendment right to be free of cruel and unusual punishment. Plaintiff states that on October 8, 2018, he underwent a tonsillectomy and surgery to remove oral cancer. He then underwent chemotherapy and radiation treatment at Jefferson City Correctional Center ("JCCC"). During the course of this treatment, he was unable to eat or swallow foods or liquids because of pain in his mouth that induced vomiting.

         From October 8, 2018 through November 26, 2018, while at JCCC, plaintiff received a daily saline drip for hydration "with a means for compensation for lack of foods unable to be eaten," which the Court assumes was intravenous feeding. Plaintiff states he has lost over fifty pounds because of his inability to eat "due to blockage in his mouth that [makes him unable] to swallow liquids or foods and or medication."

         Plaintiff was released from the JCCC medical unit to NECC on approximately November 28, 2018. He remained in the transitional care unit overnight until Dr. McCollum saw him on November 29, 2018. Plaintiff states that he told Dr. McCollum that he was unable to swallow foods and that he had been placed on an intravenous saline drip for food, hydration, and medicine while at JCCC. Plaintiff states Dr. McCollum prescribed plaintiff Tramadol for pain, and released him back to the general population "with no follow up for a daily saline drip or any means to help with injury to mouth that stops me from eating and drinking." At the time of filing, plaintiff stated that he had been unable to eat or drink for ten days.

         On December 13, 2018, the Court conducted an initial review of plaintiffs § 1983 complaint under 28 U.S.C. § 1915(e), and determined that plaintiff had stated a plausible claim for deliberate indifference to a serious medical need. The Court noted that plaintiff was a "three striker" under the provisions of 28 U.S.C. § 1915(g), but granted plaintiffs application to proceed in the district court without prepaying fees or costs because it found plaintiff had alleged facts sufficient to show he was in imminent danger of serious physical injury. See ECF No. 4. The Court ordered process to issue against Dr. McCollum.

         Defendant McCollum has filed the instant motion to dismiss, stating that plaintiff had not exhausted his administrative remedies pursuant to the prisoner litigation reform act ("PLRA") before filing his civil rights complaint, and therefore his complaint should be dismissed under Rule 12(b)(6). Although typically an affirmative defense of exhaustion under the PLRA requires the Court to consider materials outside the pleadings, here defendant asks the Court to consider only the exhibits plaintiff attached to his own complaint. Plaintiff attached to his complaint an informal resolution request ("IRR") dated August 29, 2018, a response to that IRR dated October 1, 2018, and an incomplete and undated and IRR that was never received by NECC. See ECF No. 1-3. Under Federal Rule 10(c), a these documents attached as exhibits to plaintiff's complaint are adopted as part of the complaint for all purposes. Because the Court is not considering matters outside the pleadings, the Court need not consider defendant's motion as one for summary judgment. See Fed. R. Civ. P. 12(d). Rather, the case may be decided on defendant's motion to dismiss.

         III. Discussion

         Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002) (holding that exhaustion is mandatory). To properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the applicable procedural rules. Jones v. Bock, 549 U.S. 199, 218 (2007). "[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Id.

         For a Missouri inmate to satisfy the exhaustion requirement, he must avail himself of the three-step process outlined in the Missouri Department of Corrections Manual, under section D5-3.2, which requires an inmate begin by (1) filing an IRR and if unsatisfied with the IRR response, the inmate must (2) file an offender grievance form within seven days after they sign the IRR response. If still unsatisfied after these first two steps, to fully exhaust their ...


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