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Dean v. Allred

United States District Court, D. Arizona

January 22, 2014

Donald Dean, Plaintiff,
Terry Allred, et al., Defendants.


G. MURRAY SNOW, District Judge.

On October 28, 2013, Plaintiff filed his Amended Complaint in compliance with the Court's October 7, 2013 Order granting motions to dismiss filed by Rowe and Wexford (Doc. 24). Rowe and Wexford separately move to dismiss the claims presented against them in the Amended Complaint (Docs. 29, 36). Both motions will be granted in part and denied in part.


Plaintiff, an inmate incarcerated by the Arizona Department of Corrections, claims that he was ordered to perform labor for Defendants Common Market Equipment (CME) Company and Swift Transportation (Doc. 24 ¶ 22 (Am. Compl.)). Plaintiff did not receive safety or specialized training in moving heavy equipment or machinery but was tasked with moving heavy equipment and machinery ( id. ¶¶ 23-24). Plaintiff alleges that on September 7, 2012, a negligently maintained 10-ton capacity jack fell onto his right hand and crushed and fractured multiple bones ( id. ¶ 25). Plaintiff was taken to Tempe St. Luke's Hospital where the attending physician determined that Plaintiff required surgery but that surgery could not be performed that day because of swelling in Plaintiff's hand ( id. ¶¶ 27-28). Plaintiff was ordered to return to the hospital for surgery within 7 to 10 days ( id. ¶ 29).

Plaintiff was returned to the Arizona State Prison Complex-Lewis on September 8, 2012, and examined by Defendant Miner ( id. ¶¶ 30-31). Plaintiff informed Defendant Miner that he was required to return to the hospital for surgery within 7 to 10 days ( id. ¶¶ 32-33). Plaintiff was not returned to the hospital for surgery ( id. ¶ 34). Plaintiff submitted an inmate letter requesting immediate medical attention, but no action was taken ( id. ). Plaintiff was brought back to the hospital on September 30, 2012, and informed that the surgical window had closed and that surgery could no longer be performed without causing further injury or damage to Plaintiff ( id. ¶¶ 35). Plaintiff's right hand is now permanently disfigured, and he suffers from a partial loss of function ( id. ¶ 36). From these facts, Plaintiff presents deliberate indifference and negligence claims against Facility Health Administrator Terry Allred, Medical Program Manager Richard Rowe, health care provider Miner, an unnamed Clinical Coordinator, and Wexford Health Sources (Counts I-III). Plaintiff also presents a negligence claim against CME and Swift (Count IV). Rowe moves to dismiss the claims against him in Counts I and III[1] and Wexford moves to dismiss Counts II and III (Docs. 29, 36).


On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact are assumed to be true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal under Rule 12(b)(6) can be based on "the lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint need contain only "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The principle that a court accepts as true all of the allegations in a complaint does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "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. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. To show that the plaintiff is entitled to relief, the complaint must permit the court to infer more than the mere possibility of misconduct. Id.

A claim must be stated clearly enough to provide each defendant fair opportunity to frame a responsive pleading. McHenry v. Renne, 84 F.3d 1172, 1176 (9th Cir. 1996). "Something labeled a complaint..., yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint." Id. at 1180.

III. Analysis

A. Rowe

As an initial matter, Plaintiff concedes that the negligence claim against Rowe in Count III should be dismissed (Doc. 30 at 6); therefore, the Court will grant Rowe's motion as to this claim.

As for Plaintiff's deliberate indifference claim, Rowe maintains that the amended pleading's factual allegations remain too vague and conclusory and mirror the allegations in the original Complaint. But in his original Complaint, Plaintiff presented merely a single allegation against Rowe: that he is directly responsible for authorizing certain contracted medical services and treatments, including Plaintiff's surgery, and that this surgery did not occur, which caused Plaintiff permanent damage (Compl. ¶ 42). But, critically, there was no allegation about whether Rowe approved the surgery, which required dismissal.

In contrast, in the amended pleading, Plaintiff affirmatively alleges that Rowe is responsible for authorizing procedures like Plaintiff's surgery; knew of the risk to Plaintiff if the surgery did not occur; and, yet, did not authorize the surgery within the specified time frame (Am. Compl. ¶¶ 50-53 (emphasis added)). These factual allegations, taken as true, are sufficient to require Rowe to answer. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (a single egregious failure can constitute deliberate indifference). Contrary to Rowe's interpretation, these are allegations of Rowe's individual involvement in the alleged constitutional violation, and they are plainly not based on a respondeat superior theory of liability. It is not necessary at this stage for Plaintiff to know or plead ...

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