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Forbes v. Cownes

United States District Court, S.D. Georgia, Dublin Division

June 18, 2018

CHANTE FORBES, individually and as Administratrix of the ESTATE OF UCOLLOS OWENS deceased, Plaintiff,
v.
KENNETH COWENS, M.D.; ANNIE BODI, P.A.C.; and KIMBERLY SMITH, R.N., Defendants.

          ORDER

         Before the Court is Defendants' Motion to Dismiss (doc. no. 17). Plaintiff filed a response in opposition (doc. no. 22) and Defendants filed a reply in support (doc. no. 27). Accordingly, Defendants' motion has been fully briefed and is ripe for review.

         I. BACKGROUND

         The facts of Plaintiff's Amended Complaint are as follows. Ucollos Owens ("Decedent") was a prisoner at Johnson State Prison ("JSP") who suffered from mild to moderate asthma and severe Chronic Obstructive Pulmonary Disease ("COPD") . (Am. Compl., Doc. No. 12, ¶ 2 5.) During his stay at JSP, Decedent received several prescriptions for his asthma including Albuterol, Xopenex, Astrovent, and QVAR. (Id. ¶ 26.) Despite taking these medications, Decedent continued to experience difficulty breathing. (Id. ¶ 30.) Decedent suffered "asthma exacerbations" on December 19, 2014, March 23, June 18, and July 7, 2015. (Id., . ¶ 30.)

         To treat Decedent's asthma, Defendants were supposed to conduct a review of Decedent's chronic care treatment plan every six months. (Id. ¶ 32.) Defendants, however, missed one of these reviews, which was scheduled to take place in April 2015. (Id.)

         On July 2, 2015, Decedent visited the JSP Medical Center complaining about a cough and congestion. (Id. ¶ 32.) A peak expiratory flow measurement was taken and revealed a reading of 230, which was apparently indicative of asthma. (Mendel Aff., Doc. No. 12-1, ¶ 8.)[1] Decedent was referred to Defendant Kenneth Cowens, M.D., [2] who prescribed antibiotics, steroids, nebulizer treatments, and ordered a chest x-ray. (Am. Compl. ¶ 33.) Dr. Cowens also scheduled a follow-up appointment, but that appointment was apparently cancelled. (Id. ¶¶ 34-35.) On July 15, Decedent was given an x-ray which revealed anw8mm nodular density overlying the right upper lung zone superimposed on posterior right sixth/anterior right third rib.[3] (Id.¶¶ 34-36.)

         On August 18, Decedent returned to the Medical Center, complaining about his persisting cough and asthma symptoms. (Id. ¶ 37.) Decedent was examined by Defendant Annie Kristen Andrews Bodi, P.A. (Id. ¶ 38.) Although she was skeptical about the severity of Decedent's coughing, Ms. Bodi diagnosed Decedent with bronchitis and prescribed a bottle of Robitussin and instructed Decedent to restart his Astrovent, Singulair, QVAR, and Xopenex. (Id. ¶¶ 38, 40.) Decedent had prematurely run out of all of these medications except Xopenex. (Id.) Ms. Bodi also ordered another x-ray, which revealed "no acute or active cardiopulmonary disease." (Id. ¶ 41.)

         Decedent returned to JSP Medical Center at 4:35 pm on August 24, 2015, complaining of shortness of breath and wheezing. (Id. ¶ 44.) Decedent informed Defendants that he had run out of the medication in his inhaler. (Id. ¶ 47.) Defendant Kimberly Smith took Decedent's vitals and referred him to Dr. Cowens who diagnosed Decedent with bronchitis and prescribed an Albuterol nebulizer breathing treatment. (Id. ¶ 48.) When Decedent's symptoms continued to deteriorate, Ms.

         Bodi ordered a second nebulizer treatment and directed her staff to call the paramedics. (Id.) Shortly after beginning I the second nebulizer treament, Decedent began yelling for help, stating that he could not breathe. (Id. ¶¶ 50-51.)

         Johnson County paramedics received the emergency call at 5:17 p.m. and arrived at JSP Medical Center at 5:24 p.m. (Id. ¶52.) Decedent was rushed to the Fairview Park Hospital but was pronounced dead at 6:17 p.m. (Id. ¶¶ 53-54.) Decedent's autopsy revealed the cause of death was an "acute asthma exacerbation." (Id. ¶ 56.)

         Plaintiff Chante Forbes, Decedent's daughter and administratrix of his estate, initiated this action on June 7, 2017. Plaintiff alleges that Defendants were deliberately indifferent to Decedent's serious medical needs, in violation of his Eighth Amendment rights. Defendants now move to dismiss Plaintiff's Amended Complaint.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 8 (a) requires that a plaintiff's complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss for failure to state a claim upon which relief can be granted, a complaint must include enough "factual allegations to raise a right to relief above the speculative level, " and those facts must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 570 (2007). Although a complaint does not need to be buttressed by-detailed factual allegations, the plaintiff's pleading "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. The Rule 8 pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

         A complaint should not be dismissed for failure to state a claim, however, "unless it appears beyond a doubt that the plaintiff can prove no set of circumstances that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Robinson v. United States, 484 Fed.Appx. 421, 423 (11th Cir. 2012) (quoting Lopez v. First Union Nat'l Bank of Fla., 129 F.3d 1186, 1189 (11th Cir. 1997)). At this stage, courts must accept all factual allegations in the complaint and construe all reasonable inferences in the light most favorable to the plaintiff. Belanaer v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009) (citing Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262 (11th Cir. 2004)).

         III. ...


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