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Where a plaintiff has brought a 42 U.S.C. §1983 action alleging that the defendant nurse exhibited deliberate indifference to his underlying seizure condition while he was incarcerated at a county jail, the complaint should be dismissed because it cannot plausibly demonstrate that the defendant recklessly failed to prevent or avert a heightened risk that the plaintiff would experience a seizure.
“Andrew Poronto commenced this consolidated 42 U.S.C. §1983 action against Wellpath, LLC nurse employee Mary Krause. The complaint alleges that Krause exhibited deliberate indifference to Poronto’s underlying seizure condition while he was incarcerated at the Macomb County jail, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. …
“Poronto was a pretrial detainee at the time of his incarceration at the Macomb County jail because ‘a court had yet to try or punish him.’ …
“To establish a plausible Fourteenth Amendment deliberate indifference claim, pretrial detainees must allege (1) that they suffered from an objectively ‘serious medical need,’ and (2) that ‘each defendant acted deliberately (not accidentally), and also recklessly in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.’ … In plain terms, jail medical staff must recognize the potential for harm to the detainee — either through actual or imputed (because the risk is so obvious) knowledge — and then recklessly fail to prevent or avert that same harm. …
“… Poronto asserts that (1) Debus informed Krause about Poronto’s seizure condition, (2) Krause ordered jail nursing staff to dispense both Clobazam and Zonisamide to Poronto by 8:00 P.M. on April 13, but that (3) Krause knew ‘both medications were non formulary and were not in stock at the jail and that the medication had not arrived from the off-site pharmacy,’ and (4) Krause was aware of a heightened risk that Poronto would suffer a seizure in the event he did not receive the medications timely. … These allegations are factually insufficient to establish a plausible claim of deliberate indifference. …
“Here, the complaint flatly asserts that Krause knew the jail’s onsite pharmacy did not carry Clobazam or Zonisamide when she prescribed them to Poronto. … But without any supporting factual allegations explaining how Krause could have known this information at the time — thereby exhibiting the requisite culpable mental state — the complaint cannot plausibly demonstrate that Krause recklessly failed to prevent or avert a heightened risk that Poronto would experience a seizure.
“An additional theory of liability — that Krause should have directed jail nursing staff to evaluate whether Poronto was suffering from benzodiazepine withdrawal — faces the same hurdle. Assuming benzodiazepine withdrawal is an objectively serious medical condition, the complaint omits any description of the symptoms associated with that type of withdrawal; it does not allege that Poronto ever exhibited withdrawal symptoms; and it neglects to explain how Krause could have otherwise known he was suffering from withdrawal when she was not present at the jail during Poronto’s incarceration. … So the complaint lacks sufficient allegations to plausibly establish that Krause recklessly failed to prevent or avert a heightened risk that Poronto would undergo benzodiazepine withdrawal.
“For all these reasons, the Fourteenth Amendment deliberate indifference claim is subject to Rule 12(b)(6) dismissal.”
