United States District Court, W.D. Arkansas, Fayetteville Division
CARL P. ASHWORTH, Plaintiff,
NURSE RHONDA BRADLEY, Washington County Detention Center; and DR. HOWARD, Washington County Detention Center, Defendants.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
JAMES R. MARSCHEWSKI, Chief Magistrate Judge.
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis (IFP).
The case is before me on a motion to dismiss (Doc. 13) filed by the Defendants. Plaintiff filed a response to the motion (Doc. 20). Also pending before the Court is a motion to amend the complaint (Doc. 23).
According to the allegations of the complaint, Plaintiff had been diagnosed with epididymitis at the University of Arkansas for Medical Sciences (UAMS). On April 4, 2013, April 24th, and April 30th, Plaintiff was seen by Dr. Howard. Dr. Howard's opinion was that Plaintiff did not have epididymitis. Plaintiff was prescribed Ibuprofen and antibiotics but asserts that they were not working. At the April 30th appointment, Plaintiff states he was told an appointment would be scheduled with a urologist.
On May 23rd and May 24th, Plaintiff put in requests because he had not heard anything about his appointment and the pain medication was not working. Plaintiff indicated he believed they were procrastinating. In response, he was told they had to call and fax the paperwork and then get the appointment. On May 27th, he submitted another grievance about this situation.
On June 1st, Plaintiff was informed that an appointment had been made. On June 16th, he was seen by Dr. Childs at Ozark Urology and diagnosed with epididymitis, prescribed antibiotics and Ibuprofen, and was scheduled for another appointment in two months. As relief, Plaintiff seeks compensatory damages for pain and suffering caused by Dr. Howard's misdiagnosis.
Because Plaintiff indicated he was suing the Defendants only in their official capacities, he was asked to complete an addendum. In the addendum (Doc. 7), Plaintiff indicated he did not contend Washington County had an unconstitutional policy or custom (Doc. 7 at ¶¶ 1-3). With respect to Nurse Bradley, he indicated again that he was suing her in her official capacity only. (Doc. 7 at ¶ 3(A)). He indicates she did not schedule his appointment with the urologist quickly enough. Id. With respect to Dr. Howard, Plaintiff indicates he is asserting both an official capacity and an individual capacity claim. Id. at ¶ 3(B). Plaintiff alleges that Dr. Howard failed to properly diagnosed the Plaintiff and failed to obtain the records that would have verified the diagnoses of epididymitis. Id. at ¶ 3(B).
2. Applicable Standard
Rule 8(a) of the Federal Rules of Civil Procedure contains the general pleading rules and requires a complaint to present "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)( quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
"The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a sheer possibility.'" Braden, 588 F.3d at 594 ( quoting Iqbal, 556 U.S. at 678). The standard does "not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation, " or reasonable inference, that the "defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; see also Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)(While pro se complaints are liberally construed, they must allege sufficient facts to support the claims.).
Defendants move to dismiss the official capacity claims on the grounds that Plaintiff has not alleged the existence of an unconstitutional custom or policy. In fact, they note the Plaintiff has affirmatively stated that he is not claiming that Washington County had an unconstitutional custom or policy. Next, Defendants state no individual capacity claim is stated against Dr. ...