United States District Court, E.D. Arkansas, Eastern Division
TIBAL CLARKE, Reg. #XXXXX-XXX, Plaintiff,
ELLA TAYLOR, Registered Nurse, FCI-FC, et al., Defendants.
OPINION AND ORDER
KRISTINE G. BAKER, District Judge.
Plaintiff Tibal Clarke is a federal prisoner and brings this pro se action alleging that, while he was incarcerated in the Federal Correctional Institution at Forrest City ("FCI Forrest City"), he received inadequate medical care for his complaints of rectal bleeding that resulted in him receiving a delayed diagnosis of colon cancer. Mr. Clarke asserts a Bivens  Eighth Amendment claim against the individual defendants and a negligence claim against the United States of America pursuant to the Federal Tort Claims Act ("FTCA").
Before the Court is the motion to dismiss filed by separate defendant Timothy Outlaw, the former warden of FCI Forrest City (Dkt. No. 81). Mr. Clarke has not responded, despite being ordered to do so (Dkt. No. 100). Also before the Court are the motions for summary judgment filed by separate defendants Jack Vitvitsky, P.A., and Cathie Winkler, R.N., employees of an independent medical contractor at FCI Forrest City (Dkt. Nos. 83, 88). Mr. Clarke has responded to Mr. Vitvitsky's and Ms. Winkler's motions collectively (Dkt. No. 94), and Ms. Winkler has replied (Dkt. No. 99). For the following reasons, the Court grants Mr. Outlaw's motion to dismiss and Mr. Vitvitsky's and Ms. Winkler's motions for summary judgment (Dkt. Nos. 81, 83, 88). The Court has under advisement the motion for summary judgment filed by defendants Ella Taylor, R.N., Amy Barker, R.N., Kathleen Maples, R.N., Hipolito Matos, M.D., and Nader Peikar, M.D. (Dkt. No. 107).
I. Factual Background
On April 3, 2009, Mr. Clarke was transferred from FTC Oklahoma City to FCI Forrest City (Dkt. No. 111, Ex. A, ¶ 2). At that time, Mr. Clarke underwent a health screen that did not indicate any abnormalities or health problems other than a prior positive tuberculosis test ( Id., Attch. 2). On April 13, 2009, Mr. Clarke saw Ella Taylor, a Registered Nurse, in a "sick call triage encounter" (Dkt. No. 111, Attch. 3). He requested hair clippers and a cholesterol check ( Id. ). On June 29, 2009, Mr. Clarke saw Amy Barker, another Registered Nurse, in an "[e]mergency encounter performed at Health Services" (Dkt. No. 111, Attch. 4). Mr. Clarke complained of abdominal pain and multiple episodes of diarrhea ( Id. ). Ms. Barker assessed Mr. Clarke with diarrhea and instructed him to "keep hydrated [with] 2 days off work." ( Id. ).
On July 15, 2009, Mr. Clarke underwent a full history and physical performed by Rachel Johnson, a Nurse Practitioner (Dkt. No. 111, Attch. 5). Although Mr. Clarke denied any blood in his stool, Ms. Johnson ordered a "guaiac [test] time[s] three, " a test for fecal occult blood ( Id., Attch. 5 at pp. 5, 13). Based on this physical, Mr. Clarke was assessed with osteoarthritis, elevated blood pressure, and joint pain ( Id., Attach. 5 at p. 12).
On August 24, 2009, Mr. Clarke saw physician's assistant Jerald Jones for a recheck of an elevated blood-pressure reading and for complaints of knee pain (Dkt. No. 111, Attch. 6). On September 23, 2009, Mr. Clarke returned to Mr. Jones in a "sick call/triage encounter" (Dkt. No. 83-1, at 5). Mr. Clarke complained of rectal bleeding and stated that he had recently had three guaiac tests that were positive for fecal occult blood ( Id. ). After an examination, Mr. Jones assessed "[h]emorrhage of the gastrointestinal tract, unspecified" ( Id. ). Mr. Jones noted that "[Mr. Clarke] needs CBC and eval by gastro[enterologist]" ( Id. ).
On December 2, 2009, Mr. Vitvitsky, a physician's assistant, treated Mr. Clarke in a sick call/triage encounter (Dkt. No, 83-1, at 1, 7). During that visit, Mr. Clarke complained that, for the last three months, he had observed blood in his stool every time he used the toilet. He also reported taking an aspirin a day for a knee injury, which Mr. Vitvitsky noted "may be contributing to problem." ( Id. at 7). Mr. Vitvitsky recorded: "Rectal stool sample showed positive for occult blood with sample only from rectal canal - [Mr. Clarke] was too uncomfortable to push all the way in without lubrication generous on glove. Two more cards to be returned in a few days." ( Id. ). Mr. Vitvitsky assessed "[h]emorrhage of the gastrointestinal tract, unspecified" ( Id. at 8). Mr. Vitvitsky's plan of care included a CBC blood test and for Mr. Clarke to follow up at sick call as needed. Mr. Vitvitsky further recorded under his plan of care: "Await (continue) for consult regarding blood in stool, return two cards Friday, continue Milk of Mag to provide regularity. Blood tests being ordered." ( Id. ).
Mr. Clarke returned to Mr. Vitvitsky on December 4, 2009. Both of Mr. Clarke's stool sample cards tested positive for occult blood (Dkt. No. 83-1, at 9). Mr. Vitvitsky noted that Mr. Clarke now had a total of six stool samples that were positive for blood and listed gastroenterology consultation under his plan of care ( Id., at 10). Mr. Vitvitsky states that he did see Mr. Clarke as a patient after December 4, 2009 (Dkt. No. 91, ¶ 4), and Mr. Clarke does not claim otherwise in his response to Mr. Vitvitsky's motion for summary judgment.
On December 22, 2009, Mr. Clarke saw Ms. Winkler, a Registered Nurse, in a "health services encounter" (Dkt. No. 88-1, at 1). Ms. Winkler noted: "Rectal bleed, bright red over normal stool. Refused physical exam. Lab results from previous exams not available. Tx with rectal steroid, if available. Obtain results... Tx hypermotility GI distress. Refer to GI specialist." ( Id. ). Ms. Winkler prescribed a hemorrhoid suppository, reflux medicine, and a high-fiber diet ( Id. ). She instructed Mr. Clarke to report bloating or abdominal pain ( Id. ). Ms. Winkler states in her summary judgment papers that she did not see Mr. Clarke again until August 26, 2010 (Dkt. No. 89, ¶ 10). Mr. Clarke does not challenge this in his response to Ms. Winkler's motion for summary judgment.
Over the next few months, Mr. Clarke saw other Bureau of Prison ("BOP") medical personnel and continued to complain of rectal bleeding (Dkt. No. 111, Attchs. 13-15). On April 22, 2010, Mr. Clarke was seen by a general surgeon who recommended a colonoscopy and an EGD ( Id., Attch. 16). On August 20, 2010, Mr. Clarke underwent a colonoscopy and an EGD, which showed a rectal mass ( Id., Attch. 20). The biopsy results indicated a rectal carcinoma with "multiple lymph nodes invasion, also positive for h-pylori" ( Id., Attch. 21). BOP physician Nader Peikar initiated a medical transfer for Mr. Clarke, and, on September 17, 2010, Mr. Clarke was transferred to a BOP medical facility in Butler, North Carolina ( Id., Attch. 24).
II. Mr. Outlaw's Motion To Dismiss
Mr. Outlaw moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Mr. Clarke has not stated a viable Eighth Amendment claim against him and that he is entitled to qualified immunity. Although the Court ordered Mr. Clarke to respond to Mr. Outlaw's motion (Dkt. No. 100), he has failed to do so. For that reason alone, Mr. Clarke's claims against Mr. Outlaw are subject to dismissal pursuant to Local Rule 5.5(c)(2) for failing to comply with the Court's Order. However, the Court will consider the merits of Mr. Outlaw's motion to dismiss.
"To survive a 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (citing Twombly, 550 U.S. at 556). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires 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 (alteration in original) (citation omitted). "When ruling on a motion to dismiss, the ...