United States District Court, S.D. Georgia, Dublin Division
CHANTE FORBES, individually and as Administratrix of the ESTATE OF UCOLLOS OWENS deceased, Plaintiff,
KENNETH COWENS, M.D.; ANNIE BODI, P.A.C.; and KIMBERLY SMITH, R.N., Defendants.
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.
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., . ¶
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.)
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.) Decedent was
referred to Defendant Kenneth Cowens, M.D.,  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. (Id.¶¶ 34-36.)
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.)
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,
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.)
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.)
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.
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555).
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)).