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Jackson v. Lemmon

United States District Court, S.D. Indiana, Indianapolis Division

October 18, 2017

BRUCE LEMMON Commissioner, DOC SCOTT BRENNEKE, DEPARTMENT RECORD COORDINATOR individual and official capacities, Defendants.


          Hon. William T. Lawrence, Judge.

         The second amended complaint alleges that the defendants violated plaintiff Marshall Jackson's First Amendment Rights and state law by failing to timely produce his medical records when he requested them. The theory of liability is that information contained in the medical records was necessary to file a viable product liability action against AstraZeneca, a third-party. The Commissioner of the Indiana Department of Correction (DOC), Bruce Lemmon, and the Department Record Coordinator, Scott Brenneke, seek dismissal of the complaint for failure to state a claim upon which relief may be granted. For the reasons explained below, the defendants' motion to dismiss, Dkt. No. 60, is granted.

         I. Standard of Review

         When evaluating a motion to dismiss the court “takes all well-pleaded allegations of the complaint as true and views them in the light most favorable to the plaintiff.” Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). Any legal conclusions pressed in the complaint are not presumed to be true. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010). In addition, orders entered and filings made in this and other courts are subject to judicial notice on a Rule 12(b)(6) motion. See Wigod v. Wells Fargo Bank, 673 F.3d 547, 556 (7th Cir. 2012) (collecting cases). To satisfy the notice-pleading standard of Rule 8 of the Federal Rules of Civil Procedure, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief, ” which is sufficient to provide the defendant with “fair notice” of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) and quoting Fed.R.Civ.P. 8(a)(2)). Moreover, a plaintiff can plead himself out of court by pleading facts that show he has no legal claim. Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

         II. Factual Background

         Jackson filed this lawsuit on October 11, 2016, alleging that the defendants' failure to timely produce his medical records violated his First Amendment Rights. Jackson was not incarcerated during this time period and this is not a case where there was an actual barrier to filing a lawsuit.[1]

         On June 14, 2017, Jackson filed a motion for leave to file an amended complaint. That request was granted. See Dkt. No. 49. In addition, Jackson was given a further opportunity to supplement his complaint with a factual basis for his conclusion that he was denied access to the courts (or in his words, “the courthouse doors are closed to the claim”). The supplement was filed on July 17, 2017. In response, the defendants filed a motion to dismiss. Jackson responded and the defendants replied. In addition, Jackson filed a motion to clarify statute of limitations[2] and motion for the court to take judicial notice of related adjudicative facts. See Dkt. Nos. 68 and 71. These briefs were all considered in ruling on the motion to dismiss.

         The allegations and facts in Jackson's amended complaint, Dkt. No. 50, (as supplemented, Dkt. No. 57) are the following.

         On October 1, 2012, Jackson was released from the DOC. While incarcerated Jackson was not told that he had kidney disease and never had a biopsy done. At some point, Jackson learned that he has kidney disease. He alleges that his kidney disease is a result of ingesting Prilosec, a Proton Pump Inhibitor (PPI) that had been prescribed by a prison doctor, to treat his acid reflux disease.

         There are no allegations regarding when Jackson was prescribed Prilosec or when he was diagnosed with kidney disease.

         Jackson alleges that, “towards the end of sometime in 2016, the plaintiff discovered that he had a claim against AstraZeneca.” Dkt. No. 50 at ¶ 5. AstraZeneca Pharmaceuticals LP is the company that allegedly manufactures Prilosec. Jackson alleges that in 2014 warning labels were added to Prilosec and that Prilosec is liable to him for failing to adequately warn against the negative effects and risks associated with ingesting this medication.

         On May 12, 2016, Jackson submitted a request to the DOC Central Office for medical records in its possession. Specifically, Jackson sought a copy of medical records for the time period 1988 through 1993.

         On July 7, 2016, a DOC attorney informed Jackson that the requested medical records could not be produced. Similarly, a record department employee told Jackson that the records could not be located and were unavailable.

         On October 11, 2016, Jackson commenced this action alleging that the defendants obstructed and deprived Jackson of his constitutional right to access the court.

         On March 29, 2017, the DOC recovered Jackson's medical records during an extensive warehouse inventory. On or about March 30, 2017, Jackson was notified that the medical records were located. Jackson agreed to accept a copy of his medical records following a telephonic status conference on April 28, 2017.[3]

         On May 10, 2017, Jackson received the requested medical records. Upon review Jackson determined that the medical records did not include the factual basis needed set forth a claim against AstraZeneca consistent with Rule 8 of the Federal Rules of Civil Procedure. See Dkt. No. 57 at p. 2.

         Jackson alleges that AstraZeneca has accepted responsibility for failing to warn consumers about the dangers of their product to kidneys. Jackson asserts that Prilosec has damaged one of his kidneys. He is on dialysis treatment ...

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