Apodaca v. Ommen

• Decision Date: 18 March 1991
• Docket Number: No. 90-137,90-137
• Citation: 807 P.2d 939
• Parties: Vincent APODACA, Appellant (Plaintiff), v. Janet OMMEN, R.N. and Archie Kirsch, M.D., Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 939

807 P.2d 939

Vincent APODACA, Appellant (Plaintiff), v. Janet OMMEN, R.N. and Archie Kirsch, M.D., Appellees (Defendants).

No. 90-137.

Supreme Court of Wyoming.

March 18, 1991.

Vincent Apodaca, pro se.

Terry L. Armitage, Asst. Atty. Gen., and Linda Burt, Legal Intern, Cheyenne, for appellee Ommen.

David E. Westling of Vlastos, Brooks & Henley, P.C., Casper, for appellee Kirsch.

Before URBIGKIT, C.J., THOMAS and GOLDEN, JJ., and ROONEY, and BROWN, Ret., JJ.

GOLDEN, Justice.

Appellant, Vincent Apodaca, appeals from orders of the district court which dismissed his complaint of medical malpractice against appellees, Archie Kirsch, M.D., a contract physician for the Wyoming State Penitentiary, and Janet Ommen, R.N., a prison employee who serves as director of the penitentiary's medical services department and who provides medical care to prisoners on a day-to-day basis.

We will affirm the district court's orders dismissing the complaint for failure to state claims upon which relief can be granted. However, because the complaint was not dismissed with prejudice and because of the somewhat unusual circumstances of this case, we will not treat the dismissals as res judicata, thus, permitting Apodaca to refile a complaint if he so desires.

PROCEEDINGS IN THE TRIAL COURT

On January 9, 1990, Apodaca filed his complaint. He alleged that he had been incarcerated in the Wyoming State Penitentiary since August 3, 1989. Before his incarceration, he was injured in an industrial accident for which he received worker's compensation temporary total disability benefits. Before his arrest and incarceration, Apodaca was being treated by Milo E. Wilcox, D.C. ¹ , but he had not seen Wilcox for treatment since February of 1989. The complaint identified Archie Kirsch, M.D., as a physician employed to provide medical services to inmates at the state penitentiary and Janet Ommen, R.N., as the director of the medical services department at the penitentiary. Apodaca claimed that he had submitted requests to the administrators of the penitentiary to permit him to be treated by Wilcox, but that these requests were referred to Ommen. In one paragraph of the complaint, Apodaca asserted that Kirsch and Ommen attempted to force Apodaca to be treated by Kirsch, in lieu of Wilcox. Included in Apodaca's complaint was an averment that Kirsch and Ommen have also attempted to force Apodaca to be treated by an orthopedic surgeon of their choice, again, in lieu of treatment by Wilcox. Apodaca claimed that Wilcox was familiar with his injury and course of treatment, but that Kirsch and Ommen were not. Apodaca also included this paragraph in his complaint:

18. For reasons unknown to plaintiff [Apodaca], the administrators of the Wyoming State Penitentiary and the Defendants Apodaca further claimed there was no legitimate reason for not allowing him to see Wilcox and that Kirsch had used his professional licensure to mask nonmedical decisions as medical and to reduce the penitentiary's expenses in providing health care to inmates, as well as to cover up and conceal liability for "lack and/or refusal of medical attention." In closing, Apodaca claimed the acts of Kirsch and Ommen constituted a deliberate and willful interference with his medical treatment and with his worker's compensation claim. Finally, Apodaca asserted that the acts and omissions of Kirsch and Ommen had caused him great pain and concomitant mental anguish and asked for compensatory, exemplary and punitive damages of $50,000 from each of them.

herein do not want Plaintiff to be treated by Dr. Milo E. Wilcox, and these defendants are utilizing their licensure under Wyoming law as health care providers to erect a shield against civil rights liability for the Wyoming State Penitentiary administrators referred to in 13 above. ²

On February 2, 1990, citing W.R.C.P. 12(b)(6), Ommen filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. On February 5, 1990, Kirsch filed an identical motion. The district court scheduled a hearing on these motions for February 27, 1990. A brief was filed in support of Ommen's motion to dismiss on February 13, 1990. Although that brief was filed on behalf of Ommen, it made reference to the positions of both Kirsch and Ommen. Kirsch did not file a brief in support of his motion to dismiss. ³ On February 16 and 20, 1990, Apodaca filed motions: (1) for an order directing pre-hearing written argument and memoranda by Kirsch and rescheduling hearing; and, (2) to restrict argument at hearing to those issues upon which written argument has been submitted by the defendants. Apodaca also filed traverses to the motions to dismiss on February 20 and 21, 1990. On February 27, 1990, Apodaca filed a notice and motion for restraining order asserting that an accusation had been made, by penitentiary administrators as well as the counsel for Ommen, that he might have been guilty of tampering with the mails because he had possession of a document mailed by Ommen's counsel to her. Apodaca claimed Ommen and her counsel were attempting to coerce and frighten him into dropping his lawsuit.

After conducting a hearing in open court on February 27, 1990, ⁴ the district court entered an order on March 5, 1990, dismissing the complaint against Ommen and a second order on March 8, 1990, dismissing

the complaint against Kirsch. This latter order constitutes the final order in this case. W.R.C.P. 54(b). On March 15, 1990, Apodaca filed a motion for new trial or to alter or amend the judgment pursuant to W.R.C.P. 59. As noted above, entry of final judgment occurred on March 8, 1990, and the district court did not rule on the motion or grant a continuance. Thus, by operation of W.R.C.P. 59(f), the motion was deemed denied on May 7, 1990, and notice of appeal was required to be filed not later than May, 22, 1990. W.R.A.P. 2.01. Apodaca filed his notice of appeal on May 22, 1990.

ISSUES

Apodaca raises these issues:

1. Whether the complaint states a claim for medical malpractice, and whether the district court erred in dismissing the complaint under Rule 12(b)(6), W.R.C.P.

2. Whether the district court erred in failing to consider the Appellees' motions to dismiss under Rule 12(b)(6), W.R.C.P., as orally argued at the hearing, as motions for summary judgment under Rule 56, W.R.C.P.

3. Whether the district court erred in allowing the Appellees to orally plead affirmative defenses which had not been argued in writing, thus imposing an impermissible surprise upon the Plaintiff.

4. Whether the district court erred in holding the pro se plaintiff to the same, or higher, standards, as an attorney would have been.

In response, Kirsch poses the question of whether the trial court properly dismissed Apodaca's complaint for failure to state a claim upon which relief can be granted.

Ommen, on the other hand, who was represented by the Attorney General of Wyoming, did not address the substantive issues raised by Apodaca, but argued only that his notice of appeal was not timely filed and, thus, under this court's mandatory rule, W.R.A.P. 1.02, the supreme court is deprived of jurisdiction to consider Apodaca's appeal. ⁵

STANDARD OF REVIEW

A plaintiff is only required to give fair notice of his claim against the defendant in his complaint and motions to dismiss must be sparingly granted. Pleadings must be liberally construed in order to do justice to the parties. W.R.C.P. 8(a) and (b); Johnson v. Aetna Casualty & Surety Co. of Hartford, Conn., 608 P.2d 1299, 1302 (Wyo.1980). When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, the facts alleged in the complaint are admitted and the allegations must be viewed in a light most favorable to the plaintiff. McClellan v. Tottenhoff, 666 P.2d 408, 414 (Wyo.1983); Moxley v. Laramie Builders, Inc., 600 P.2d 733, 734 (Wyo.1979). Where a complaint is dismissed on the ground that it fails to state a claim, the order of dismissal should also inform the plaintiff of the reasons for dismissal so he can make an intelligent choice as to amending his complaint. State Highway Commission v. Bourne, 425 P.2d 59, 63 (Wyo.1967).

DISPOSITION

Because of its dispositive nature, we will address Ommen's issue first. In doing so As a preface to the disposition of Apodaca's substantive issues, we will address his claim that he is entitled to preferential treatment because he is proceeding pro se in this matter. This court has indicated that a certain leniency is accorded to anyone acting pro se; however, the proper administration of justice requires reasonable adherence to the rules and requirements of the court. Zier v. City of Powell, 526 P.2d 63 (Wyo.1974); and see Kost v. Thatch, 782 P.2d 230, 231 (Wyo.1989) (and cases cited therein). There is no more basic requirement in the rules than that a complaint must state a cause of action. Likely, Apodaca has confused the standards applied to a pro se litigant in a state civil action with the less stringent standards applied to pro se litigants in actions pursuant to 42 U.S.C. § 1983. See, for example, Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163, 169 (1980); Hayes v. Cuyler, 475 F.Supp. 1347, 1349 (D.C.Pa.1979); 42 U.S.C.A. § 1983, n. 2188 (1981). The record in this case does not reveal anything but that the trial court accorded Apodaca every courtesy and consideration to which he was entitled.

we merely refer the reader to the statement of the proceedings in the district court, above, which demonstrates that Apodaca's notice of appeal was timely filed.

Apodaca asserts that his complaint states causes of action for medical malpractice, for his nonconsent to treatment by Kirsch and Ommen and gross negligence in the delivery of that treatment.

The last of these we can quickly dispose of because it is clear from Apodaca's complaint that no treatment has been given him by either...