Fitzgerald v. Corrections Corp. of America

• Decision Date: 11 April 2005
• Docket Number: No. 03-5029.,03-5029.
• Parties: James J. FITZGERALD, Plaintiff-Appellant, v. CORRECTIONS CORPORATION OF AMERICA; Prison Health Services, Inc.; Board of County Commissioners of Tulsa County; Tulsa County Criminal Justice Authority; and John F. Josephson, M.D., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

403 F.3d 1134

James J. FITZGERALD, Plaintiff-Appellant, v. CORRECTIONS CORPORATION OF AMERICA; Prison Health Services, Inc.; Board of County Commissioners of Tulsa County; Tulsa County Criminal Justice Authority; and John F. Josephson, M.D., Defendants-Appellees.

No. 03-5029.

United States Court of Appeals, Tenth Circuit.

April 11, 2005.

COPYRIGHT MATERIAL OMITTED

Gina Cowley-Crabtree, Tulsa, OK, for Appellant.

Matthew B. Free (Catherine L. Campbell, Best & Sharp, Tulsa, OK, and David A. Graves and Jeffrey L. Wilson, The Barkley Law Firm, Tulsa, OK, with him on the brief), for Defendants-Appellees Corrections Corporation of America, John F. Josephson, M.D., and Prison Health Services, Inc.

Gretchen M. Schilling, Riggs, Abney, Neal, Turpen, Orbison & Lewis on the brief for Defendants-Appellees Board of County Commissioners of Tulsa County and Tulsa County Criminal Justice Authority.

Before TACHA, Chief Judge, HOLLOWAY and LUCERO, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-Appellant James J. Fitzgerald broke his hip while he was incarcerated at the David Moss Criminal Justice Center. Fitzgerald alleges that he suffered this fracture after experiencing a diabetes-related seizure and falling down, and he claims that his injuries are a result of the prison authorities' failure to adequately treat his diabetes and failure to provide him with a wheelchair. Fitzgerald further alleges that prison authorities did not secure a medical evaluation for his injuries until over five months after he incurred them, and ultimately failed to provide any treatment for him at all.

Fitzgerald sued the jail's private operator, the Corrections Corporation of America (CCA), as well as the health care provider Prison Health Services (PHS), the Board of County Commissioners of Tulsa County (BCC), the Tulsa County Criminal Justice Authority (TCCJA), and John F. Josephson, M.D. ("Dr. Josephson"), attempting to assert claims for disability discrimination under Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. He also attempted to assert, against CCA, PHS and Dr. Josephson, claims arising under state law for negligence or medical malpractice and arising under federal law, i.e. 42 U.S.C. § 1983, based upon alleged violations of the Eighth Amendment to the United States Constitution. The District Court for the Northern District of Oklahoma granted summary judgment to Dr. Josephson and dismissed the suit pursuant to Fed.R.Civ.P. 12(b)(6) against the remaining defendants. Fitzgerald now appeals.

As explained later, with respect to the dismissal of Fitzgerald's claims against CCA, PHS, BCC and TCCJA for failure to plead exhaustion of administrative remedies sufficiently as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), we vacate and remand for clarification whether dismissal of Fitzgerald's claims was with or without prejudice. We affirm the grant of summary judgment for Dr. Josephson with respect to the federal claims against him. We reverse the summary judgment for him with respect to the state law claims, and remand for further proceedings.

I BACKGROUND

A. Fitzgerald's Allegations

James Fitzgerald was an insulin-dependent diabetic with a history of low blood sugar and seizures. Fitzgerald Amended Petition dated Feb. 22, 2002, Aplt.App. 20, 21, ¶ 2. As a result of his condition, he alleges that he was also particularly susceptible to bone fractures. Id.

In August 1999 Fitzgerald was placed in the David Moss Criminal Justice Center. Id. at 22-23, ¶ 7. Upon admission, he alleges that he "informed jail staff" that he required a special diet and regular injections of insulin. Id. Fitzgerald alleges he further "informed jail staff" that as a result of his diabetic condition, his bones were more susceptible to fracture and that he had broken his leg while being housed in the old Tulsa County jail several years earlier. Id. He also "informed jail staff" that he had a history of low blood sugar, that this caused him to have seizures if his diet and medication were not properly regulated, and that he required use of a wheelchair to prevent him from falling and sustaining injury. Id. Fitzgerald alleges that defendants CCH and PHS failed to accommodate his requests. Id at 23, ¶ 9.

On or about September 17, 1999, Fitzgerald alleges that he slipped into a diabetic coma or seizure and fell, fracturing his left upper femur. Id. Despite the apparent severity of these injuries, Fitzgerald alleges he was not provided with the opportunity for appropriate medical treatment until February 24, 2000. Id. at 23-24, ¶ 10-11. On or about February 24, 2000, Fitzgerald was examined by Dr. John F. Josephson, who was under contract with PHS. Id. at ¶ 11. Dr. Josephson reviewed Fitzgerald's medical records and interpreted x-rays with which he was provided. Affidavit of Dr. Josephson dated Oct. 24, 2002, Aplee. Supp.App. at 75. Dr. Josephson offered three treatment options for Fitzgerald's injury. Id. Although Dr. Josephson advised that a surgical procedure was the best form of treatment, he also informed PHS that an acceptable course of treatment was to do nothing. Fitzgerald Petition, Aplt.App. at 23-24, ¶ 11. PHS chose to do nothing. Id.

In November, 2000, Fitzgerald was transferred into the custody of the Oklahoma Department of Corrections, having lived for fourteen months with an untreated broken hip. Id. at 24, ¶ 13 Fitzgerald alleges that he received no medical treatment for his injuries other than non-prescription pain medication during the time that he was in jail, despite "numerous and repeated requests." Id.

B. Procedural History

Fitzgerald first sued Defendants in the District Court of Tulsa County, Oklahoma. The case was subsequently removed to the United States District Court for the Northern District of Oklahoma, on notice by CCA. The U.S. District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331, since the court was presented with claims arising under 42 U.S.C. § 1983, the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12102 et seq.), the Rehabilitation Act (29 U.S.C. §§ 701 et seq.), and the United States Constitution. The District Court also had supplemental jurisdiction under 28 U.S.C. § 1367 over Fitzgerald's state negligence or malpractice claims against CCA, PHS and Dr. Josephson. We have jurisdiction over the appeals involving these claims under 28 U.S.C. § 1291.

In the District Court before Judge Holmes, BCC, CCA, PHS and TCCJA moved to dismiss the claims against them under Fed.R.Civ.P. 12(b)(6), while Dr. Josephson moved for summary judgment under Fed.R.Civ.P. 56(c) and Local Rule 56.1. The District Court found that Fitzgerald failed to adequately plead exhaustion of administrative remedies before bringing suit, as is required by the Prison Litigation Reform Act. 42 U.S.C. § 1997e(a). As a result, the court dismissed Fitzgerald's suit entirely against BCC and TCCJA, because no state law claims were asserted against those Defendants. Order (2d) dated Jan. 6, 2003, Aplt.App. 33, 37. The District Court also granted the motions for CCA and PHS except for the state law claims, which were remanded to the District Court of Tulsa County. Id.

As for the claims against Dr. Josephson, the Federal District Court found first, as with his federal claims against the other defendants, that Fitzgerald was unable to proceed because he failed to exhaust his administrative remedies in compliance with 42 U.S.C. § 1997e. Order (1st) dated Jan. 6, 2003, Aplt.App. 26, 30. Further, the court found Fitzgerald's claims also failed against Dr. Josephson on the merits on the following grounds: First, Fitzgerald failed to provide expert testimony as was generally required under Oklahoma law to demonstrate medical negligence. Id. Second, the court concluded that Fitzgerald failed to rebut an expert affidavit introduced by Dr. Josephson, which asserted the doctor "met or exceeded the applicable standard of care." Id. at 28. As a result, the court found, this established as uncontroverted fact that Dr. Josephson's care was not substandard. Id. at 28, 30. Since Dr. Josephson's conduct was not substandard, it could not constitute either state law medical negligence, or a violation of the ADA, Rehabilitation Act or Eighth Amendment. Id. at 30. The court further concluded, as to Fitzgerald's ADA claim, that he had no right to bring a private claim for substandard medical treatment under the ADA in any case. Id. The court thus granted summary judgment for Dr. Josephson on the entirety of claims against him. Id. at 31.

II. DISCUSSION

A. Dismissal for Lack of Exhaustion of Administrative Remedies.

A district court's finding of failure to exhaust administrative remedies is reviewed de novo. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002).

In Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1208-09 (10th Cir.2003), we concluded that a plaintiff's failure to meet the exhaustion requirement of § 1997e(a) does not deprive us of subject matter jurisdiction over the action. We further determined that under § 1997e, exhaustion was a pleading burden that falls on the plaintiff, and "a complaint `that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief can be granted.'" 355 F.3d at 1209 (quoting Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.1998)). To successfully allege exhaustion a "prisoner must: (1) plead his claims with `a short and plain statement ... showing that [he] is entitled to relief,' in compliance with Fed.R.Civ.P. 8(a)(2); and (2) `attach[ ] a copy of the applicable administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceeding and its outcome.'" Id (quoting Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000)).

In the instant case, Fitzgerald asserted that he "exhausted those administrative remedies that were...