United States District Court, E.D. Missouri, Northern Division
DERRICK R. SMITH, Plaintiff,
JEFFREY S. MCCOLLUM, Defendant.
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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.
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
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.
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 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.
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.
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 ...