United States District Court, W.D. Oklahoma
JACQUELINE STEELE, as Next Kin of MICHAEL STEELE, Deceased, Plaintiff,
1. DR. ROSS LANE FISHER, M.D., Oklahoma Department of Corrections Physicians and Medical Staff, individually; 2. DR. JOEL BRENT MCCURDY, M.D., Oklahoma Department of Corrections Physicians and Medical Staff, individually; 3. DR. MICHAEL SHAWN HOUSTON, M.D., Oklahoma Department of Corrections Physicians and Medical Staff, individually; 4. CARL BRADLEY “BRAD” JOHNSTON, III, P.A., Oklahoma Department of Corrections Physicians and Medical Staff, individually; 5. John and Jane Doe Employees I-X of DOC; individually 6. John and Jane Doe Physicians and Medical Staff I-X, Defendants.
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
the Court are Defendants Dr. Ross Lane Fisher and Dr. Joel
Brent McCurdy's Motion to Dismiss [Doc. No. 57], and
Defendants Carl Bradley Johnston, II, and Dr. Michael Shawn
Houston's Motion to Dismiss [Doc. No. 61].Plaintiff has
filed timely responses [Doc. No. 58] and [Doc. No.
Defendants have replied [Doc. Nos. 59 and 66]. The matter is
fully briefed and at issue.
is next-of-kin of Michael Steele, deceased, who, at all times
relevant to this action, was incarcerated at the Lexington
Assessment and Reception Center (“LARC”). Mr.
Steele was diagnosed with lymphoma in January 2013. In the
summer of 2013, OU Medical Center recommended a POMP
treatment regimen to prevent a recurrence of cancer. This
treatment was delayed by Defendants McCurdy, Houston, Fisher,
September 2013, Mr. Steele complained of a knot on the back
of his head. His complaints were ignored. No. referral was
made to diagnose the knot or provide treatment despite Mr.
Steele's history of lymphoma. The knot eventually grew to
the size of a tennis ball and caused him constant and severe
Steele was placed in isolation from October 27, 2013, until
November 4, 2013. During this period in isolation, Mr. Steele
was not treated for the knot on the back of his head or
provided the medical treatment recommended by OU Medical
Center to prevent the recurrence of cancer. After his release
from isolation, Mr. Steele's cellmate noticed that he was
very weak and had lost a substantial amount of weight. The
cellmate placed Mr. Steele in a wheelchair and took him to
the LARC medical unit for treatment. When he arrived at the
unit, the medical staff told the cellmate that there was
nothing wrong with Mr. Steele and to take him back to his
cell. Pursuant to the medical staff's instructions, Mr.
Steele was returned to his cell, where he died a few hours
alleges Mr. Steele was diagnosed with Lymphoma and the
prison's medical staff failed to provide recommended
treatment and ignored his obvious symptoms. She asserts
claims for denial of due process under the Fourteenth
Amendment to the U.S. Constitution and violations of the
Eighth Amendment's prohibition against cruel and unusual
move to dismiss the case for failure to: (1) file her claims
within the statute of limitations; (2) state a claim upon
which relief can be granted by omitting facts indicating
Defendants' personal participation in violation of
Steele's Constitutional rights; (3) state a claim for
violation of the Eighth Amendment as she does not recite
facts indicating deliberate indifference; and, (4) state a
claim for violation of the Fourteenth Amendment as
Defendants' actions were not “outrageous and
shocking.” Defendants also assert that they are
entitled to qualified immunity.
Rule of Civil Procedure 8(a)(2) provides that a pleading
stating a claim for relief must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” To survive a Rule 12(b)(6) 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, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)). “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. “A
claim has facial plausibility when 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.
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679; see
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir.
2008) (stating that “the degree of specificity
necessary to establish plausibility and fair notice, and
therefore the need to include sufficient factual allegations,
depends on context”) (internal quotation omitted).
Therefore, Iqbal and Twombly provide
“no indication the Supreme Court intended a return to
the more stringent pre-Rule 8 pleading requirements.”
also Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (citing Iqbal, 556 U.S. at 678).
Tenth Circuit has held that the
Iqbal/Twombly pleading standard is “a
middle ground between heightened fact pleading, which is
expressly rejected, and allowing complaints that are no more
than labels and conclusions or a formulaic recitation of the
elements of a cause of action, which the Court stated will
not do.” Khalik, 671 F.3d at 1191 (quoting
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008)). The pleader's allegations need only provide the
“defendant fair notice of what the … claim is
and the grounds upon which it rests.” Id. at
1192 (quoting Erickson v. Pardus, 551 U.S. 89, 127
S.Ct. 2197, 167 L.Ed.2d 1081 (2007)) (internal quotations
omitted). In ruling on a motion to dismiss a judge must
accept all well-pled allegations as true and “may not
dismiss on the ground that it appears unlikely the
allegations can be proven.” Robbins, 519 F.3d
response to Defendants Motions to Dismiss, Plaintiff asserts:
(1) the Fourth Amended Complaint relates back to her original
Complaint and therefore her claims against Defendants are
timely; (2) she has stated sufficient facts to support her
claims; (3) that she withdraws her claim for violation of the
Fourteenth Amendment; and, (4) Defendants are not entitled to
qualified immunity. Because the Court finds that the Fourth
Amended Complaint does not relate back to the original
Complaint and ...