United States District Court, E.D. Washington
MARSHALL L. STORY, Plaintiff,
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
Rosanna Malouf Peterson United States District Judge.
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.
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.
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.
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.
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.
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
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.
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.
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.