United States District Court, M.D. Alabama, Northern Division
Joseph Stephen West, Plaintiff, Pro se, Anniston, AL.
For Leeposey Daniels, Alabama DOC Warden, in his official and individual capacity, Leon Bolling, ADOC Assistance Warden, in his official and individual capacity, Defendants: Bart Gregory Harmon, LEAD ATTORNEY, Alabama Department of Corrections, Montgomery, AL; William Richard Lunsford, LEAD ATTORNEY, Maynard Cooper & Gale PC, Huntsville, AL.
For Corizon Medical Services, Defendant: William Richard Lunsford, LEAD ATTORNEY, Maynard Cooper & Gale PC, Huntsville, AL.
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR., UNITED STATES MAGISTRATE JUDGE.
Before the court is Defendants' Renewed Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 25), and Plaintiff's Response in Opposition (Doc. 28). The District Judge referred this case to the undersigned Magistrate Judge " for action or recommendation on all pretrial matters." Order (Doc. 2). After a review of Defendants' Motion to Dismiss and all supporting briefs, and for the reasons that follow, the undersigned RECOMMENDS that Defendants' Renewed Motion to Dismiss (Doc. 25) be GRANTED.
I. STANDARD OF REVIEW
Defendants move the court to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. " Under [Rule 12(b)(6)], whether a plaintiff failed to state a claim upon which relief can be granted must be ascertained from the face of the complaint." Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1266 n.11 (11th Cir. 1997). Generally, " a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996). In considering a motion pursuant to Rule 12(b)(6), the court must " accept the facts of the complaint as true and view them in the light most favorable to the nonmoving party." Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004).
" [A] Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred." La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citation and internal quotation marks omitted). The statute of limitations begins to run on a § 1983 claim when " the plaintiffs know or should know (1) that they have suffered the injury that forms the basis of their complaint and (2) who has inflicted the injury." Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003). In determining this issue, " a court must first identify the alleged injuries, and then determine when the plaintiff could have sued for them." Smith v. Shorstein, 217 F.App'x 877, 881 (11th Cir. 2007).
The facts essential to resolution of the Rule 12(b)(6) motion to dismiss are as follows: Although Plaintiff is no longer incarcerated, at all times relevant to this action Plaintiff was an inmate in the custody of Alabama Department of Corrections. Am. Compl. (Doc. 23) at 1. In January, 2011, Plaintiff arrived at Kilby Correctional Facility where a medical screening was conducted. Id. at 2.
Upon transfer to Easterling Correctional Facility in February 2011, Plaintiff again underwent a medical screening. Id. On May 4, 2011, Plaintiff met with Nurse Practitioner Oblinger (" Nurse Oblinger") for his quarterly chronic-care testing. Id. At that time, Nurse Oblinger told Plaintiff that he " still" had blood in his urine. Id. Plaintiff inquired what Nurse Oblinger meant by " still, " as he was unaware of any previous instances of having blood in his urine. Id. Nurse Oblinger advised Plaintiff that blood was discovered in his urine during his medical screening at Kilby and again when screened upon arrival at Easterling. Id. Nurse Oblinger told Plaintiff she would order more testing. Id.
Apparently that testing was not done. Plaintiff again saw Nurse Oblinger for quarterly chronic-care testing on or about August 1, 2011. Id. Nurse Oblinger again reported finding blood in Plaintiff's urine. Id. Nurse Oblinger told Plaintiff that she could not explain why the additional testing she had ordered had not yet been completed, but she assured Plaintiff she would order the testing again. Id.
On August 4, 2011, Plaintiff filed a medical grievance regarding the blood found in his urine. Id. Plaintiff's mother and wife also called the Warden at Easterling " requesting medical help for blood in [P]laintiff's urine, high blood pressure, and cholesterol medications." Id. at 3. On August 30, 2011, Plaintiff filed a medical grievance appeal " citing medical problems, " and Plaintiff's mother called State Senator Del Marsh's office " about these problems." Id.
Plaintiff was transferred to Elmore Correctional Facility on September 1, 2011. Id. Defendant Leeposey Daniels (" Warden Daniels") is and was the Warden at Elmore, and Defendant Leon Bolling (" Warden Bolling") is and was the Assistant Warden. Id. at 1. Defendant Corizon Medical Services (" Corizon") is and was the medical service provider for Elmore Correctional Facility. Id. at 2. On September 4, 2011, Plaintiff filed a medical request, and on September 11, 2011, Plaintiff filed an appeal. Id. at 3. The next week Plaintiff saw Nurse Practitioner Kornett (" Nurse Kornett") at which time " they discussed all the medical problems." Id. Nurse Kornett told Plaintiff she would order more testing. Id.
On October 7, 2011, Nurse Kornett notified Plaintiff that she had ordered a CT scan, which was conducted on October 20, 2011. Id. On October 25, 2011, Nurse Kornett notified Plaintiff that the CT scan revealed a small spot on his right kidney and that she would order further evaluations. Id.
Over the next few months, " Plaintiff filed several medical requests"  and Plaintiff's mother and wife " called Warden Daniels and the Warden at Stanton Corr[ectional] Fac[ility] where the health care unit was located."  Id. Plaintiff also alleges that his mother and sister " spoke to doctors at the SCU. Several times they were told the file could not be located." Id.
On January 11, 2012, Nurse Kornett notified Plaintiff that he would see Dr. Newman, an urologist at Jackson Hospital, on January 25, 2012. Id. At that appointment, Dr. Newman asked Plaintiff why three months had passed since the CT scan, and Plaintiff responded that he did not know. Id. Dr. Newman recommended a surgeon, Dr. Lee Hammondtree, who, in Dr. Newman's opinion, would be able to " freeze" or ...