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Story v. Maple

United States District Court, E.D. Washington

June 11, 2019

MARSHALL L. STORY, Plaintiff,
v.
DR. JEFFERY MAPLE, Doctor/Medical Provider NaphCare; KYRA, Nurse; AMANDA SPAYDE, RN, Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DISMISSING REMAINING DEFENDANTS FOR FAILURE TO STATE A CLAIM

          Rosanna Malouf Peterson United States District Judge.

         BEFORE THE COURT is a motion by Defendant Amanda Spayde, RN (“Nurse Spayde”) to dismiss Plaintiff Marshall Story's complaint with prejudice based on Plaintiff's alleged failure to include any allegations of Nurse Spayde's personal participation in the deprivation of constitutionally protected rights that Plaintiff claims. ECF No. 29; see also ECF No. 11 (Complaint). Plaintiff did not respond to Defendant's Motion to Dismiss, although he untimely filed a Second Amended Complaint after Defendant moved to dismiss.[1]

         BACKGROUND

         Procedural History

         Plaintiff claims a violation of his constitutional rights during his pretrial detention at the Spokane County Jail in Spokane, Washington. Plaintiff is proceeding pro se and in forma pauperis and pursues his civil rights claim under 42 U.S.C. § 1983. Plaintiff asserts that he suffers from chronic, serious pain following a neck injury and surgery in 2015. ECF No. 11 at 5. In the original Complaint, Plaintiff named as Defendants John McGrath, then-Director of the Spokane County Jail, and “Amanda[, ]” a NaphCare nurse, as well as “John/Jane Doe #1[, ]” Medical Director of NaphCare and “Doe, Jane #2[, ]” a NaphCare provider. Id. at 3-4.

         The Court screened Plaintiff's Complaint on August 20, 2018, and determined that the claims against named Defendant McGrath were appropriately dismissed, as Plaintiff had not alleged any facts from which the Court could infer that Defendant McGrath was aware of any unconstitutional behavior or that he had caused any constitutional violations through establishment of a custom or policy. ECF No. 9 at 4. The Court further found that, “[l]iberally construing Plaintiff's allegations regarding the lack of medical care he has received at the Spokane County Jail, the Court finds a response from Defendant ‘Nurse Amanda' is required under 42 U.S.C. § 1997e(g)(2).” Id. at 9. The Court directed service upon Defendant “Nurse Amanda” by the U.S. Marshal. Id. at 7. The Court informed Plaintiff that he could request service upon the John/Jane Doe Defendants once he identified those defendants through formal discovery or otherwise. Id. at 6.

         After the U.S. Marshal served the Complaint on Nurse Spayde, Plaintiff filed an Amended Complaint on October 19, 2018. ECF No. 26. Plaintiff's Amended Complaint identified Doe Defendant #1 as Dr. Jeffery E. Maple and Doe Defendant #2 as “Kyra, ” a NaphCare nurse. ECF No. 26. Plaintiff's statement of his claims and factual allegations were identical to the language of Plaintiff's original Complaint. Id. Defendant moved to dismiss Plaintiff's Complaint shortly thereafter. ECF No. 29.

         On December 19, 2018, Defendant filed a “First Amended Complaint, ” which the Court refers to as Plaintiff's Second Amended Complaint since it is the third Complaint filed by Plaintiff in this matter. ECF No. 40. The Second Amended Complaint again identified Doe Defendant #1 as Dr. Jeffery E. Maple and changed the name of formerly Doe Defendant #2, a NaphCare nurse, to “Kara.” Id. at 3-4. The Second Amended Complaint supplemented and modified the allegations against Defendants. Rather than reiterating Plaintiff's allegations regarding his medical conditions and the medical treatment he had received prior to his incarceration at Spokane County Jail, the Second Amended Complaint refers to the preceding Complaints for those allegations. Id. at 5. Since filing the Second Amended Complaint, Plaintiff was transferred from the Spokane County Jail to a U.S. Bureau of Prisons facility. ECF No. 55.

         The Second Amended Complaint, ECF No. 40, was not timely. See Fed. R. Civ. P. 15(a) (requiring leave of court or written consent of the opposing party to amend a complaint after the period for amendment as a matter of right expires). It also impermissibly referred to a previous complaint for a portion of the allegations rather than repeating the allegations in the Second Amended Complaint and stating its claims completely without reference to any prior pleading. See Barnes v. Sea Haw. Rafting, LLC, 889 F.3d 517, 531 (9th Cir. 2018) (recognizing that an amended complaint supersedes the original). Nevertheless, the Court liberally construes Plaintiff's Second Amended Complaint, ECF No. 40, as a responsive filing to Defendant's Motion to Dismiss and considers both whether the deficiencies in Plaintiff's Amended Complaint warrant dismissal and whether Plaintiff's Second Amended Complaint, ECF No. 40, cures any deficiencies. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“Prisoner pro se pleadings are given the benefit of liberal construction.”).

         Factual Allegations

         As alleged by Plaintiff, Plaintiff sustained a severe neck injury while incarcerated by the State of Washington in 2015. ECF No. 26 at 5. He underwent major surgery on his spine as a result and received morphine and two other medications during his post-surgical recovery. Id. at 6. After Plaintiff's release from state custody in December 2015, he continued his treatment and rehabilitation by receiving care at a medical clinic in Spokane. Id. During that time, Plaintiff continued on a prescribed medication regimen for pain management. Id. Plaintiff represents that he was told that he would “have to have vertebrae C-5, C-6, and C-7 replaced as the weight of the titanium [inserted in his first surgery] presses down and grinds from above.” Id. at 6.

         Plaintiff recounts that he was arrested and taken to the Spokane County Jail on May 20, 2018. ECF No. 26 at 6. In Plaintiff's Complaint and Amended Complaint, he alleged that the NaphCare “medical staff” at the jail all showed deliberate indifference to his serious medical needs when they “refused to treat [his] condition, . . . denied all medications [he is] on, and refused to obtain [his] medical record from [the medical clinic in Spokane] or [the Washington Department of Corrections].” Id. at 6. Plaintiff further alleged that the medical staff “refused [his] requests for a neck brace, a pillow, and any medications” and “housed [him] upstairs” despite his equilibrium being “off.” Id. at 6-7. In the Second Amended Complaint, Plaintiff supplemented these general allegations by recounting specific instances that Plaintiff alleges amount to deliberate indifference by each Defendant.

         Nurse Spayde

         Plaintiff alleges that Nurse Spayde examined Plaintiff on May 20, 2018. ECF No. 40 at 3. He alleges that she told him that he needed to fill out release of information forms that she did not have with her and did not send up to him “later.” Id. He further alleges that she “ignored [him] when she would walk by [his] cell.” Id.

         Dr. ...


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