United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING MOTION TO AMEND AND SUPPLEMENT
ORIGINAL RESPONSE BRIEF AND GRANTING IN PART DEFENDANTS'
MOTIONS FOR PARTIAL JUDGMENT ON THE PLEADINGS
JANE MAGNTTS-STINSON, CHIEF JUDGE
Motion to Amend and Supplement Original Response
Chris Kyner's motion to amend and supplement original
response brief, dkt. , is granted to the
extent the Court shall construe the response brief to be a
surreply. The Court appreciates Mr. Kyner's efforts to
shorten his responsive brief. However, the Court does not
appreciate Mr. Kyner's attempt to circumvent the page
limits by shoehorning 25 additional pages by
“adopt[ing] by reference the content [of] pages 3 thru
28 of Doc. 76, ” particularly where Mr. Kyner is merely
repeating the “well-pleaded facts from Plaintiff's
amended complaint, ” and these facts are already
present in his amended complaint and did not need to be
needlessly repeated in his brief. Nonetheless, the Court will
review all briefing and relevant pleadings in its ruling.
Motions for Partial Judgment on the Pleadings
Chris Kyner's amended complaint asserts that he injured
his face in a fall when he was housed at the New Castle
Correctional Facility and that he received constitutionally
inadequate care for his injuries from the defendants.
defendants move for partial judgment on the pleadings arguing
that certain of Mr. Kyner's claims are barred by the
statute of limitations.
Standard of Review
the pleadings are closed but early enough not to delay trial,
a defendant may move for judgment on the pleadings for reason
that a complaint fails to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(c). A motion for judgment on the
pleadings is governed by the same standards as a motion to
dismiss for failure to state a claim under Rule 12(b)(6).
Adams v. City of Indianapolis, 742 F.3d 720, 727-28
(7th Cir. 2014). The complaint must state a claim to relief
that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim has factual
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). A reviewing court
draws all reasonable inferences and facts in favor of the
non-movant, but need not accept as true any legal assertions.
Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th
Kyner is currently incarcerated at the Wabash Valley
Correctional Facility, but has sued certain medical providers
based on care that he received while at the New Castle
Correctional Facility. Those defendants are Dr. Loveridge,
Deanna Hauri, Jane Gregory, Nicole Davis, Megan Miller, and
Meranda Vicente. Mr. Kyner filed his original Complaint on
August 3, 2017. In his original Complaint, he identified as
defendants Dr. Loveridge, Deanna Hauri, Jane Gregory, Nicole
Davis, and Meranda Vicente. On December 6, 2017, Mr. Kyner
filed an amended complaint which added Megan Miller as a
following facts are as pleaded in Mr. Kyner's amended
complaint, dkt. 35, and are assumed to be true for the
purposes of this Order only.
9, 2015, Mr. Kyner slipped and fell on the right side of his
face. As a result, several hard, jagged, and
“unblunted” plastic objects were imbedded in his
face, although he initially did not realize this. It was not
until June 12, 2015, that Mr. Kyner noticed a small object in
the right side of his jaw and some numbness on the right side
of his face. On that day, he hand-delivered a health services
request (HCRF #296247) to the nursing staff during rounds in
his unit. He requested to be x-rayed as soon as possible and
to have any objects removed.
14, 2015, the numbness in Mr. Kyner's right face had
expanded and he experienced swelling. He handed a request
(HCRF #293789) seeking emergency medical care to Nurse Hauri
on the evening of June 14, 2015, and verbally told her of his
complaints. Nurse Hauri verbally acknowledged that Mr. Kyner
had swelling and a possible infection in his face, but Nurse
Hauri ignored the symptoms, and told him to submit another
request if his condition worsened. After speaking with Nurse
Hauri, Mr. Kyner alleges that he developed escalating pain in
his right cheek and he had difficulty sleeping or lying down
on the right side.
15, 2015, Mr. Kyner attended a sick call appointment with a
Nurse Vicente. He advised her of his symptoms, including the
pain, and the presence of foreign objects in his face. He
also told her he suspected an infection and requested pain
medication and antibiotics. He again requested to receive an
x-ray and have the objects removed from his face immediately.
Nurse Vicente refused to physically examine him, but did feel
around the upper and exterior portions of his right cheek
while acknowledging the possible infection, swelling, and
mobile objects in his right cheek. She denied his ...