Bird v. Wyoming
| Decision Date | 20 October 2022 |
| Docket Number | 22-CV-152-NDF |
| Parties | CHESTER L. BIRD, et al., Plaintiffs, v. STATE OF WYOMING, et al., Defendant. |
| Court | U.S. District Court — District of Wyoming |
This matter is before the Court on motions to dismiss the amended complaint (ECF 36, 38, 42), a motion to amend the amended complaint (ECF 40), and issues the Court raises sua sponte. Pro se Plaintiffs Chester L. Bird, Ryan A. Brown, and Richard B. Dague are inmates in the Wyoming Medium Correctional Institution (“WMCI”). They sue several defendants regarding alleged falsification and other inaccuracies in their medical records, particularly concerning the date they received the Janssen COVID-19 vaccine. As follows, the Court grants the motions to dismiss, denies the motion to amend and requires Plaintiff Chester Bird (but not his co-Plaintiffs) to show cause why the Court should not impose further filing restrictions against him.
Plaintiffs bring several claims arising from Defendant Melanie Martinez-Ellis - then a Health Services Administrator for Corizon, Inc. (a/k/a YesCare) at WMCI - allegedly falsifying their medical records to make it appear they received the Janssen COVID-19 vaccine twelve days later than they actually did. Plaintiffs allege Martinez-Ellis administered the Janssen vaccine to them on March 19, 2019 - three days before information regarding that vaccine was Erst posted in the facility -but in retaliation for their filing grievances about that, wrote on their consent forms March 31, 2019 as the injection date. All of Plaintiffs' claims in this action arise from those alleged facts.
Plaintiffs allege the timing is important for two reasons. First, they had an earlier case in this District, 21-cv-139-SWS, Bird et al. v. Martinez-Ellis et al., alleging Martinez-Ellis and the Warden of WMCI, Michael Pacheco, violated their Fourteenth Amendment substantive due process rights. They alleged that the patient consent forms disclosed only the Modema and Pfizer vaccines, Martinez-Ellis did not inform them she was administering the Janssen vaccine instead, and no fact sheet was posted regarding that vaccine until March 22, 2019. Plaintiffs alleged they would have declined the vaccine had they been aware that it was the Janssen vaccine. They claimed a substantive due process right to informed consent in order to accept or decline medical treatment, that Martinez-Ellis violated that right when she administered the vaccine to them, and Warden Pacheco failed to train or supervise Martinez-Ellis regarding that right. They also brought state law claims for assault and battery. Chief Judge Scott Skavdahl dismissed the federal claims in that action with prejudice for failure to state a claim and on Pacheco's part, qualified immunity. Bird v. Martinez-Ellis, 582 F.Supp.3d 909 (D. Wyo. 2022). Judge Skavdahl remanded the state law claims to state court. In the same decision, he also found the Plaintiffs' motion to file a second amended complaint was futile and denied it. Plaintiffs appealed the decision to the Tenth Circuit, and the appeal remains pending. They now claim (in both this action and by way of a pending motion for relief from the judgment in 21-CV-139, ECF 44) that dismissal was based in part on the falsified patient consent forms.
Secondly and relatedly, Plaintiffs allege that at the time Martinez-Ellis administered the Janssen vaccine to them, it was generally known to have a risk of causing blood clotting in three out of a million persons. They allege that the inaccuracy of the injection date on their consent forms posed a serious risk of harm to them because healthcare professionals would not know they actually received the vaccines twelve days earlier than stated.
Plaintiffs filed their original, twenty-five page complaint in state court on June 3, 2022. ECF 2.[1] Therein, they brought eleven claims. Some of the claims were against Martinez-Ellis, each regarding her allegedly falsifying the injection date in response to Plaintiffs' filing grievances against her for not informing them that they were receiving the Janssen vaccine. Other claims were directed against Pacheco, a pseudonymous Corizon supervisor John or Jane Doe, Sergeant George Ross, Corizon, Inc., Kurt Johnson, M.D. (Corizon's Regional Director), and Stacie Koch, RN, CCHP (Corizon's Director of Operations-Wyoming). The claims included 42 U.S.C. § 1983 claims. Plaintiffs sought $5 million in compensatoiy damages and $5 million in punitive damages. ECF 2.
The Court received the case by notice of removal on July 14, 2022. All Defendants named in the original complaint moved to dismiss. ECF 24, 26. Plaintiffs then amended their complaint as of right under Rule 15. ECF 33. The Court denied the first round of motions to dismiss without prejudice because they were mooted by the amended complaint. The amended complaint identifies the pseudonymous supervisor as Jaylene Cunningham, RN, RDON, acting Health Services Administrator for Corizon; expands one of the claims (Count Two) to reach all Defendants then-named; adds negligence claims against Cunningham and Corizon; adds a First Amendment claim against Sergeant Ross; notes Corizon, Inc. is now also known as YesCare Corp., (hereafter, “Corizon”); and increases the damages sought to respectively $7 million compensatory and $10 million punitive. Plaintiffs also add various allegations, resulting in an additional sixteen pages for a total 41 pages. ECF 33.
The amended complaint is the operative pleading and contains the following fourteen claims:
Amended Complaint Count No.
Legal Theory
Defendant(s)
First Amendment retaliation in falsifying injection date in response to Plaintiffs' grievances.
Violation of Fourteenth Amendment substantive due process right to accurate medical records in respectively falsifying the date and not requiring it to be corrected.
Eighth Amendment deliberate indifference to serious medical need in falsifying injection date.
Intentional infliction of emotional distress (‘TIED”) in falsifying the injection date.
Negligence in falsifying injection date and thus failing to ensure medical records were accurate.
Negligence in failing to ensure accurate medical records.
Cunningham
Negligence in failing to ensure accurate medical records.
Corizon
Negligence of healthcare provider under Wyoming Governmental Claims Act (“WGCA”) in falsifying injection date as retaliation.
First Amendment denial of right to petition in refusing Plaintiffs access to the grievance process regarding Martinez-Ellis's falsification of the injection date.
Respondeat superior or vicarious liability for actions of Martinez-Ellis
Corizon
Respondeat superior or vicarious liability for actions of Cunningham
Corizon
42 U.S.C. § 1983 negligent training and supervision of Martinez-Ellis to maintain accurate medical records.[2]
42 U.S.C. § 1983 negligent training and supervision of Cunningham to maintain accurate medical records.
XIV
42 U.S.C. § 1983 negligent training and supervision of Martinez-Ellis and Cunningham to maintain accurate medical records
The claims against the individual Defendants are in their individual capacities. ECF 33 ¶ 32.
The docket does not reflect a summons for Ms. Cunningham, nor a waiver of service from her. She is therefore not yet in the case. The Court reviews the claims against Ms. Cunningham pursuant to 28 U.S.C. § 1915A.
All Defendants except Cunningham filed a second round of motions to dismiss, now directed to the amended complaint. ECF 36, 38, 42. Plaintiffs did not respond to these motions, instead filing a motion to amend the amended complaint. ECF 40. The time for responses to the motions to dismiss has passed, and the briefing is complete on all of the pending motions.
At this initial phase, the Court must take all well-pleaded factual allegations as true and view those facts in the light most favorable to the plaintiff. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). Dismissal is proper if, taking those facts as true, the plaintiff has failed to present a plausible right to relief. Id. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). “A plaintiff must nudge his claims across the line from conceivable to plausible in order to survive a motion to dismiss.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (). “Thus, mere Tabeis and conclusions' and ‘a formulaic recitation of the elements of a cause of action' will not suffice.” Id. at 1191 (quoting Twombly, 550 U.S. at 555). But “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable and that a recoveiy is veiy remote and unlikely.” Twombly, 550 U.S. at 556.
To state a claim - particularly a civil rights claim - the complaint must further specify: “1) what each defendant did to [plaintiff]; 2)...
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