United States District Court, E.D. Tennessee, Knoxville Division
MEMORANDUM AND ORDER
THOMAS A. VARLAN, Chief District Judge.
This is a pro se prisoner's civil rights action pursuant to 42 U.S.C. § 1983 filed by plaintiff Gaines Parton ("plaintiff"). The matter is before the Court on the motion to dismiss filed by Corizon, Inc., incorrectly named Corizon Healthcare, Inc., ("Corizon") and Dr. Ronald Higgs ("Dr. Higgs") and plaintiff's response thereto. For the following reasons, the motion to dismiss [Doc. 15] will be DENIED.
I. Standard of Review
A motion to dismiss tests whether a claim has been adequately stated in the complaint. In considering a motion to dismiss, all well-pleaded allegations in the complaint must be regarded as true and all factual allegations must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236-37 (1974); Collins v. Nagle, 892 F.2d 489, 493 (6th Cir. 1989). Nevertheless, "though a complaint must be construed in the light most favorable to the plaintiff when the defendant files a motion to dismiss, the complaint must still contain enough facts to state a claim to relief that is plausible on its face.'" Brown v. Matauszak, 415 F.App'x 608, 612 (6th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Twombly standard applies to all civil actions filed in the U.S. district courts. Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009).
To survive a motion to dismiss, the complaint must allege grounds entitling plaintiff to relief, which requires "more than labels and conclusions [or] a formulaic recitation of the elements of a cause of action." The "[f]actual allegations must be enough to raise a right to relief above the speculative level."
Casden v. Burns, 306 F.App'x 966, 973 (6th Cir. 2009) (quoting Twombly, 550 U.S. at 555) (footnote omitted).
In order to state a claim under 42 U.S.C. § 1983, plaintiff must establish that he was deprived of a federal right by a person acting under color of state law. Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998); O'Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992); see also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) ("Section 1983 does not itself create any constitutional rights; it creates a right of action for the vindication of constitutional guarantees found elsewhere.").
II. Factual Background
Plaintiff is in the custody of the Tennessee Department of Correction (TDOC). He filed this action during his confinement in the Morgan County Correctional Complex (MCCX). Plaintiff alleges that Corizon is a private for-profit corporation that has a contract with the TDOC to provide medical care and services to inmates. Plaintiff alleges that Dr. Higgs is Corizon's primary care physician at MCCX and is responsible for providing medical care to the inmates there. Plaintiff further alleges that the defendants are responsible for arranging for specialized care outside the prison.
The basis of plaintiff's complaint can be summarized as follows: On January 18, 2012, he slipped in the shower and broke his right hand. At the infirmary, Dr. Higgs took x-rays, gave plaintiff an ace bandage and pain medication, and referred him to an outside orthopedic specialist. On January 27, plaintiff was taken to Oak Ridge Hospital for an appointment with Dr. French, who took x-rays and put his hand in a cast, gave plaintiff a prescription for pain medication, and scheduled a follow-up appointment four weeks later. Back at the prison, Dr. Higgs extended plaintiff's pain medication for one week.
Plaintiff saw Dr. French again on February 23, 2012. Dr. French took x-rays and told him his hand was still broken and required surgery, preferably within the next two weeks. Dr. French asked if plaintiff was receiving pain medication and plaintiff told him he had not had any for about three weeks. Dr. French gave him a prescription, but back at the prison Dr. Higgs refused to fill the prescription or give plaintiff any pain medication.
On March 6, 2012, plaintiff sought information as to when he would have the surgery recommended by Dr. French. On March 15, he received a ten-day supply of the pain medication prescribed by Dr. French and was told his request for surgery was being resubmitted to Corizon. On March 25, his pain medication was discontinued.
On April 13, 2012, plaintiff again sought information about his surgery and was told by a counselor who checked into it that he was not going to get the surgery and to stop asking about it. On April 19, 2012, plaintiff saw Dr. French who told him he still needed surgery to repair his hand and that he would schedule it. A woman in Dr. French's office, however, said she had checked with MCCX and that Dr. Higgs and Corizon refused to approve surgery for plaintiff's right hand but she would schedule it anyway. Plaintiff was informed by the MCCX healthcare administrator on April 25, 2012, that his surgery was scheduled for May 8, 2012, at Parkwest Hospital. Dr. Higgs and Corizon, however, refused to transport plaintiff to the hospital that day for surgery.
Plaintiff filed his complaint on December 19, 2012. As of that date, he still had not received the recommended surgery. Plaintiff alleges that, due to the delay in receiving the recommended surgery, he risks permanent disability and disfigurement to his right hand. According to plaintiff, Corizon and Dr. Higgs refused to provide the surgery due to the cost of surgery, treatment, and follow-up care and therapy. Plaintiff alleges that the defendants' refusal to provide him with necessary treatment constitutes deliberate indifference to serious medical needs in violation of the Eighth Amendment. [Doc. 2, ...