Sperry v. Corizon Health, Inc.

• Decision Date: 25 February 2020
• Docket Number: CASE NO. 18-3119-SAC
• Parties: JEFFREY J. SPERRY, Plaintiff, v. CORIZON HEALTH, INC., et al., Defendants.
• Court: U.S. District Court — District of Kansas

JEFFREY J. SPERRY, Plaintiff, v. CORIZON HEALTH, INC., et al., Defendants.

CASE NO. 18-3119-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

February 25, 2020

MEMORANDUM AND ORDER

This matter is before the Court on three motions: (1) a Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 29) filed by Defendants Johnnie Goddard, Christopher Ross, Doug Burris, Raymond Roberts, and Rex Pryor ("KDOC Defendants"); (2) a Motion for Medical Malpractice Screening Panel (ECF No. 32) filed by Plaintiff; and (3) a Motion to Stay Case (ECF No. 40) filed by Plaintiff. Plaintiff's only response to the Motion to Dismiss has been his motion to stay the case, which was filed more than a month after his response was due.¹

For the reasons described herein, the motion to dismiss is granted, and the KDOC Defendants are dismissed from this action. The Court further finds Plaintiff's motion to stay the case is denied as to the motion to dismiss. The Court defers further ruling on the motion to stay and the motion for screening panel until after reassignment of the case.

Summary of Amended Complaint²

Plaintiff alleges the defendants failed to notify him that he had tested positive for Hepatitis-C for over a year and then failed to provide him with treatment to cure the infection. He claims this violated his right to be free from cruel and unusual punishment under the Eighth Amendment and constituted a conspiracy to violate his civil rights. In addition, he brings state law claims of medical malpractice, outrageous conduct, battery, mistreatment of a confined person, breach of fiduciary duty, and negligence. He names the KDOC Defendants as well as Corizon and two nurses employed by Corizon, FNU Brundage (infection control coordinator at El Dorado Correctional Facility), and Rebecca LNU (infection control coordinator at Lansing Correctional Facility).

Plaintiff states that he filed grievances and injury claim forms demanding he receive the treatment to cure his Hepatitis-C, and the KDOC Defendants "all failed to take steps to get plaintiff's treatment" and refused to "enforce the contract [with Corizon] and make Corizon and its employees give plaintiff his treatment." ECF No. 25, at 10. He requests relief in the form of $1,000,000.

Motion to Dismiss (ECF No. 29)

The KDOC Defendants argue they should be dismissed from the case because the amended complaint includes no facts supporting a plausible claim that they personally participated in Plaintiff's medical care. They further argue that the Eleventh Amendment bars claims against them for money damages in their official capacities, that Plaintiff failed to exhaust his administrative remedies before filing suit, that they are entitled to qualified immunity, and that the Court should decline to exercise pendant jurisdiction over Plaintiff's state law claims.

Legal Standards

Rule 12(b)(6)

"To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain 'enough facts to state a claim to relief that is plausible on its face.'" Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial 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). When applying this standard, a court must accept as true all well-pleaded factual allegations and then ask whether those facts state a plausible claim for relief. See id. at 679. Viewing the complaint in this manner, the Court must decide whether the plaintiff's allegations give rise to more than speculative possibilities. Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).

Summary Judgment

While Defendants attached an affidavit to their Memorandum in Support, and while there was a Martinez report filed in this case, the Court does not rely on those submissions in ruling on the Motion to Dismiss. Therefore, the summary judgment standard is not applicable. See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10^th Cir. 2010) (district court's dismissal under Rule 12(b)(6) of a prisoner's complaint filed pro se characterized as "irregular" where court had not limited its review to the complaint).

Analysis

Personal Participation

An essential element of a civil rights claim against an individual is that person's direct personal participation in the acts or inaction upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Trujillo v. Williams, 465 F.3d 1210, 1227 (10^th Cir. 2006); Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir. 1997). Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). As a result, a plaintiff is required to name each defendant not only in the caption of the complaint, but again in the body of the complaint and to include in the body a description of the acts taken by each defendant that violated the plaintiff's federal constitutional rights.

Plaintiff names five KDOC defendants: Rex Pryor, former Warden of Lansing Correctional Facility (LCF); Doug Burris, Designee of the Secretary of Corrections; Johnnie Goddard, former Deputy Secretary of Corrections; Raymond Roberts, former Secretary of the Kansas Department of Corrections; and Christopher Ross, Grievance and Property Claims Officer at LCF.

Plaintiff's only mention in the amended complaint of any of the KDOC Defendants is that Defendants Pryor, Burris, Goddard, and Roberts, as a group, "failed to take steps to get plaintiff's treatment" after Plaintiff allegedly filed grievances and injury claims and failed to enforce the contract with Corizon. Plaintiff makes no allegation at all about Defendant Ross.

The Tenth Circuit has repeatedly held that the denial of administrative grievances alone is insufficient to establish personal participation. See Stewart v. Beach, 701 F.3d 1322, 1328 (10^thCir. 2012); Larson v. Meek, 240 F. App'x 777, 780 (10^th Cir. 2007). If Plaintiff named the KDOC Defendants on the basis of their supervisory capacity, such claim must also fail. It is well established that "§ 1983 does not recognize a concept of strict supervisor liability; the defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation." Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10^th Cir. 2008). An "affirmative link" must be established between the constitutional deprivation and "either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Id. Establishing an affirmative link requires allegations of: a) a personal involvement in the violation; b) a sufficient causal connection between the supervisor's involvement and the constitutional violation; and c) a culpable state of mind. Dodds v. Richardson, 614 F.3d 1185, 1195 (10^th Cir. 2010).

At the very most, Plaintiff can be said to contend the KDOC Defendants had knowledge of the alleged constitutional violation through Plaintiff's grievances.³ This does not demonstrate more than that these defendants reasonably relied upon the judgment of the prison medical providers. That is not enough for liability. See Phillips v. Tiona, 508 F. App'x 737, 744 (10^th Cir. 2013); Arocho v. Nafziger, 367 F. App'x 942, 956 (10^th Cir. 2010) (affirming dismissal of claim against warden that arose from grievance denial regarding Hepatitis-C treatment because reasonable reliance on judgment of medical professionals "negates rather than supports liability"); see also, Jovel v. Berkebile, 2015 WL 458074, *4 (D. Colo. July 28, 2015); Karsten v. Davis, 2013 WL 2120635, *11-12 (D. Colo. Apr. 26, 2013).

All of the KDOC Defendants are subject to dismissal from the § 1983 claim on the basis of lack of personal participation in the alleged constitutional violation.

State Law Claims

Plaintiff lists several state law causes of action in his amended complaint, including medical malpractice, the tort of outrageous conduct, battery, mistreatment of a confined person, breach of fiduciary duty, and negligence. However, he ties none of them to the KDOC Defendants specifically. As discussed above, he alleges only that Defendants failed to "take steps to get him treatment" and failed to "enforce the contract and make Corizon and its employees give plaintiff his treatment." ECF No. 25, at 10. While pro se pleadings must be liberally construed, Plaintiff makes no more than vague and conclusory allegations that fail to state a claim for any of the state law causes of action.

Furthermore, there are additional problems with Plaintiff's state law claims. "Medical malpractice is negligence of a healthcare professional in the diagnosis, care, and treatment of a patient." Perkins v. Susan B. Allen Mem'l Hosp., 146 P.3d 1102, 1105 (Kan. App. 2006) (citing Webb v. Lungstrum, 575 P.2d 22 (Kan. 1978)). Plaintiff cannot state a claim against any of the KDOC Defendants for medical malpractice because none are healthcare professionals.

As for breach of fiduciary duty, Kansas courts have not recognized an action for breach of fiduciary duty in the prison context, and courts in other states have found no fiduciary duty between prison officials and prisoners. See Hernandez v. Cate, 2014 WL 6473769, *3 (C.D. Cal. Oct. 16, 2014) (no authority for proposition that as a general matter a California state prison official has a fiduciary relationship with a state prisoner with respect to conditions of confinement); Rua v. Glodis, 52 F. Supp. 3d 84, 100 ...