Tanner v. McMurray

• Citation: 429 F.Supp.3d 1047
• Decision Date: 27 September 2019
• Docket Number: No. CIV 17-0876 JB/KBM,CIV 17-0876 JB/KBM
• Parties: Shawna TANNER, individually and as personal representative of Jay Hinton, Jr., Plaintiff, v. Timothy I. MCMURRAY, M.D.; Adriana Luna, R.N.; Audrey Leber, R.N.; Taileigh Sanchez, R.N.; Elisa Manquero, R.N.; Correct Care Solutions, LLC; Board of County Commissioners of Bernalillo County, New Mexico; Thomas J. Ruiz ; John and Jane Does 1-10; Christopher Mercer ; Ed Kossman; Claudia Rodriguez-Nunez; Martina Sanchez-Filfred, and Tina M. Munoz, Defendants.
• Court: U.S. District Court — District of New Mexico

429 F.Supp.3d 1047

Shawna TANNER, individually and as personal representative of Jay Hinton, Jr., Plaintiff,
v.
Timothy I. MCMURRAY, M.D.; Adriana Luna, R.N.; Audrey Leber, R.N.; Taileigh Sanchez, R.N.; Elisa Manquero, R.N.; Correct Care Solutions, LLC; Board of County Commissioners of Bernalillo County, New Mexico; Thomas J. Ruiz ; John and Jane Does 1-10; Christopher Mercer ; Ed Kossman; Claudia Rodriguez-Nunez; Martina Sanchez-Filfred, and Tina M. Munoz, Defendants.

No. CIV 17-0876 JB/KBM

United States District Court, D. New Mexico.

Filed September 27, 2019

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Nicole Moss, The Law Office of Nicole W. Moss, Albuquerque, New Mexico --and-- Paul J. Kennedy, Jessica M. Hernandez, Arne Leonard, Elizabeth Harrison, Kennedy, Hernandez & Associates, P.C., Albuquerque, New Mexico, Attorneys for the Plaintiff.

Alfred A. Park, Geoffrey D. White, Park & Associates, L.L.C., Albuquerque, New Mexico, Attorneys for Defendants Timothy I. McMurray, Adriana Luna, Audrey Leber, Taileigh Sanchez, Elisa Manquero, Correct Care Solutions, LLC, Christopher Mercer, and Ed Kossman.

Jonlyn M. Martinez, Law Firm of Jonlyn M. Martinez, Albuquerque, New Mexico, Attorney for Defendants Board of County Commissioners of Bernalillo County, Thomas J. Ruiz, Claudia Rodriguez-Nuñez, Martina Sanchez-Filfred, and Tina M. Muñoz.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

429 F.Supp.3d 1056

THIS MATTER comes before the Court on the Defendants Timothy I. McMurray, M.D., Adriana Luna, R.N., Taileigh Sanchez, R.N[.]'s Motion for Partial Summary Judgment and Memorandum in Support, filed April 22, 2019 (Doc. 220)("Partial MSJ"). The Court held a hearing on May 13, 2019. See Transcript of Proceedings at 2:3-5 (Court)(taken May 13, 2019), filed June 11, 2019 (Doc. 296)("Tr."). The primary issues are: (i) whether McMurray, Luna, and Sanchez, who are private parties working for Correct Care Solutions, LLC, a private contractor, are legally entitled to assert governmental immunity; (ii) whether the Court should dismiss Count I of Tanner's First Amended Complaint for Civil Rights Violations, Tort Claims, Wrongful Death, Statutory Violations, Damages, and Injunctive Relief, filed May 23, 2018 (Doc. 50)("Complaint")¹ as to Defendants Timothy I. McMurray, Adriana Luna, and Taileigh Sanchez (collectively, the "Correct Care Defendants"), because the 42 U.S.C. § 1983 claims in the Complaint's Count I are facially invalid where Tanner, as a detainee held pursuant to a probation violation, improperly alleges rights under the Eighth Amendment to the Constitution of the United States of America rather than exclusively under the Fourteenth Amendment to the Constitution of the United States of America; (iii) whether the Court should grant summary judgment in favor of the Correct Care Defendants on the Complaint's Count I, because the undisputed facts show the Correct Care Defendants did not violate Tanner's Fourteenth Amendment right to timely and adequate medical care; (iv) whether the Court should grant summary judgment in favor of the Correct Care Defendants on the Complaint's Count II,² because the undisputed facts support that the Correct Care Defendants did not unduly burden Tanner's reproductive rights, were not deliberately indifferent, and did not commit acts that shocked the conscience when caring for and treating Tanner; and (v) whether the Court should dismiss without prejudice the state law claims in the Complaint's Count III.³ The Court concludes that: (i) McMurray, Luna, and Sanchez are legally entitled to assert

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governmental immunity; (ii) the 42 U.S.C. § 1983 claims in the Complaint's Count I are not facially invalid where Tanner, as a detainee held pursuant to a probation violation, properly alleged rights under the Eight and Fourteenth Amendments, in the alternative, consistent with rule 8(d); (iii) summary judgment in favor of the Correct Care Defendants on the Complaint's Count I is proper because the undisputed facts support that the Correct Care Defendants did not violate Tanner's Fourteenth Amendment right to timely and adequate medical care, and the right Tanner alleges was not clearly established; (iv) summary judgment in favor of the Correct Care Defendants on the Complaint's Count II is proper because the undisputed facts support that the Correct Care Defendants did not unduly burden Tanner's reproductive rights, were not deliberately indifferent, and did not commit acts that shocked the conscience when caring for and treating Tanner; and (v) dismissal without prejudice of the remaining state law claims found in the Complaint's Count III is proper. Accordingly, the Court grants the Partial MSJ.

FACTUAL BACKGROUND

The Court draws the factual background from the parties' undisputed material facts in their summary judgment motion papers for the Partial MSJ. See Partial MSJ ¶¶ 1-41, at 4-12; Plaintiffs' Response in Opposition to Defendants McMurray, Luna, and Sanchez's Motion for Partial Summary Judgment at 1-22,⁴ filed June 3, 2019 (Doc. 286)("Response"), id., at ¶¶ A-Z, at 22-34;⁵ and Defendants Timothy I. McMurray, M.D., Adriana Luna, R.N., Taileigh Sanchez, R.N.'s Reply in Support of their Motion for Partial Summary Judgment, filed June 19, 2019 (Doc. 316)("Reply"), at ¶¶ A-Z, at 2-20.

1. Tanner's Pregnancy and Healthcare History Before Her 2016 Arrest.

Tanner was thirty-two years old in 2016. See Partial MSJ ¶ 1, at 4 (asserting this fact);⁶ Response at 1.⁷ Before 2016, Tanner

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was pregnant six times; four were terminated, one resulted in a miscarriage, and one resulted in a live birth. See Partial MSJ ¶ 1, at 4 (asserting this fact)(citing Deposition of Shawna Tanner at 56:8-19 (taken January 21, 2019), filed June 14, 2019 (Doc. 303-2)("Tanner Depo.")); id. at 56:22-4; id. at 58:16-18; id. at 61:19-22; id. at 62:22-24; id. at 68:5-12; id. at 69:14-20; id. at 70:17-71:6; id. at 73:3-5; id. at 81:14-18; Response at 1.⁸ Tanner's seventh pregnancy, of which she learned in March, 2016, resulted in another stillbirth. See Partial MSJ ¶¶ 1-2, at 4 (citing Tanner Depo at 81:14-18; id. at 154:15-19);⁹ Response at 1.¹⁰ On August 30, 2016, Tanner first sought pregnancy confirmation and prenatal care, and Dr. Rowe at Integrative Medicine Spa¹¹ evaluated her. See Partial MSJ ¶ 2, at 4 (asserting this fact)(citing Tanner Depo at 155:16-18; id. at 163:19-164:15);¹² Response at 1.¹³ Tanner reported that her last menstrual period occurred on

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February 14, 2016, six months before her appointment with Dr. Rowe. See Partial MSJ ¶ 3, at 4 (asserting this fact)(citing Tanner Depo. at 163:19-164:15); Response ¶ 3 and 7,¹⁴ at 1-2.¹⁵ Tanner informed Dr. Rowe that her 2016 pregnancy was her sixth pregnancy when it was her seventh. See Partial MSJ ¶ 3, at 4 (asserting this fact)(citing Tanner Depo. at 155:19-25); Response at 1-2.¹⁶ Tanner reported that she smoked five cigarettes per day, but that she quit in 2016, and that, as of the August 30, 2016, visit, she did not currently smoke. See Partial MSJ ¶ 3, at 4 (asserting this fact)(citing Tanner Depo. at 155:19-25; id. at 162:8-12; id. at 163:23-164:15); Response at 1 (objecting to the Correct Care Defendant's characterization that Tanner told Dr. Rowe in 2016 that she was currently smoking five cigarettes per day).¹⁷ Dr. Rowe determined that Tanner was twenty-eight weeks and two days pregnant, with a November 20, 2016, due date. See Partial MSJ ¶ 4, at 5 (asserting this fact)(citing Tanner Depo. at 164:16-19); Response at 1.¹⁸ Dr. Rowe did not advise Tanner that hers was a high-risk pregnancy and placed no limitations on her, although he noted that she was receiving late prenatal care. See Partial MSJ ¶ 5, at 5 (asserting this fact)(citing Tanner Depo. at 166:9-22; id. at 169:19-170:4); Response

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at 1.¹⁹

On September 2, 2016, Tanner returned to Dr. Rowe for an ultrasound and obstetric²⁰ visit appointment. See Partial MSJ ¶ 6, at 5 (asserting this fact)(citing ACOG²¹ Prenatal Antepartum Record at 1, filed June 14, 2019 (Doc. 303-3)("Relevant Integrative Med Spa Records")); Response at 1.²² At the September 2, 2016 appointment, Dr. Rowe detected fetal heart tones, and Tanner's ultrasound indicated good fluid, posterior placenta, and was consistent with dates.²³ See Partial

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MSJ ¶ 6, at 5 (asserting this fact)(citing Relevant Integrative Med Spa Records at 2, 4). Response at 1.²⁴ On September 13, 2016, Tanner underwent another ultrasound showing good fluid, normal fetal growth, and an estimated fetal weight in the thirty-ninth percentile. See Partial MSJ ¶ 6, at 5 (asserting this fact)(citing Relevant Integrative Med Spa Records at 21, 22);²⁵ Response at 1 (not disputing this fact).²⁶ Tanner was ordered to follow up for an ultrasound in four weeks. See Partial MSJ ¶ 6, at 5 (asserting this fact)(citing Relevant Integrative Med Spa Records at 23); Response at 1.²⁷ On September 27, 2016, Tanner returned to Integrative Medicine Spa, her fetus' heart...