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Whitt v. Cradduck

United States District Court, W.D. Arkansas, Fayetteville Division

July 18, 2016

JOHN WENDELL WHITT PLAINTIFF
v.
SHERIFF KELLEY CRADDUCK; DR. SAEZ; and DEPUTY HALE DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before the Court are a motion (Doc. 7) to dismiss and brief in support (Doc. 8) filed by Defendant Dr. Saez. In response to a questionnaire propounded by the Court, Plaintiff filed a combined addendum to his complaint and response to the motion to dismiss. (Doc. 17). In addition to the motion to dismiss, under the Prison Litigation Reform Act (PLRA), the Court has a continuing duty to dismiss at any time claims that are frivolous or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). For the reasons stated below, the Court finds that Defendant Saez’s motion to dismiss should be granted and that Plaintiff’s claims against the remaining Defendants should be dismissed pursuant to § 1915(e)(2).

         I. Background

         This is a civil rights action filed by Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Plaintiff is currently incarcerated in the Wrightsville Unit of the Arkansas Department of Correction. At all times relevant to this complaint, Plaintiff was incarcerated at the Benton County Detention Center (BCDC). He filed this lawsuit on February 5, 2016, maintaining he was denied adequate medical care and subjected to unconstitutional conditions of confinement.

         Plaintiff has sued Dr. Saez in both his individual and his official capacities. Dr. Saez is employed by Southern Health Partners, Inc. (SHP). At the relevant time, SHP was under contract with the BCDC to provide medical care to detainees. Plaintiff maintains he was denied adequate medical care. Specifically, he alleges that Dr. Saez failed to perform an intake physical or any physical on the Plaintiff. (Doc. 17 at ¶ 13). Plaintiff also alleges he was housed with inmates having tuberculosis (TB), human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), and Hepatitis C in disregard to the Plaintiff’s health needs and jail policy.

         Plaintiff indicates an inmate who was HIV and Hepatitis C positive was in the general population in the same cell block, E-107, as Plaintiff from August until September of 2015 and then was in lock-down until January of 2016.[1] (Doc. 17 at ¶¶ 1 & 10). This inmate used the same showers as the other inmates in the cell block. Id. at ¶ 1. Moreover, Plaintiff alleges that HIV could have been spread if the inmate had gotten into a fight with the Plaintiff or someone else. Id. at ¶ 5. Plaintiff also indicates he was housed with one or more inmates who had AIDS from August of 2015 until February of 2016. Id. at ¶ 7. Plaintiff contends it could have been transmitted through blood in the shower or through a fight. Id. at ¶ 8. He maintains he was “at RISK!!” Id. Plaintiff was tested for AIDS in March of 2016. Id. at ¶ 9. He has not seen the results of the test, but he assumes he does not have AIDS. Id.

         Plaintiff maintains that Hepatitis C could have been spread through the showers or when an inmate has boils, cuts, or sores. (Doc. 17 at ¶ 11). To his knowledge, Plaintiff has not been tested for Hepatitis C. Id. at ¶ 12.

         Plaintiff indicates he was never given a TB test while at the BCDC and the TB light in the cell block did not work. (Doc. 17 at ¶ 2). He was not housed with anyone who had active TB. Id. When he arrived at the Arkansas Department of Correction, Plaintiff was given a TB test and the result was negative. Id. at ¶ 3. Plaintiff also tested negative for HIV. Id. at ¶ 6. However, he points out that it can take a year or more for HIV to show up on a test. Id. Plaintiff states the “problem is I was put at RISK IN JAIL to Catch this from Someone They Housed with me.” Id. He asks that a trial date be set. Id.

         When asked to describe the custom or policy that Plaintiff believed caused the violation of his rights, Plaintiff responded: “Protection from known risks. Provided with necessary medical. Provided with conditions that are safe, orderly, and sanitary.”

         II. Legal Standard

         Rule 8(a) 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).

         Under 28 U.S.C. § 1915(e)(2)(B)(i-ii) “the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal--(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted.” A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded, . . . to less stringent standards than formal pleadings drafted by lawyers.’” Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

         III. Analysis

         A. Individual ...


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