Tanner v. McMurray

• Decision Date: 19 November 2018
• Docket Number: No. CIV 17-0876 JB\KBM,CIV 17-0876 JB\KBM
• Court: U.S. District Court — District of New Mexico
• Parties: SHAWNA TANNER, individually and as personal representative of JAY HINTON, JR., Plaintiffs, 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.

SHAWNA TANNER, individuallyand as personal representative of JAY HINTON, JR., Plaintiffs, 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 COMMISSIONERSOF BERNALILLO COUNTY, NEW MEXICO; THOMAS J. RUIZ; JOHNAND 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 FOR THE DISTRICT OF NEW MEXICO

November 19, 2018

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) Defendant Claudia Rodriguez-Nuñez' Motion to Dismiss and Brief in Support, filed July 9, 2018 (Doc. 63)("Rodriguez-Nuñez Motion"); and (ii) Defendant Tina Muñoz' Motion to Dismiss and Brief in Support, filed July 30, 2018 (Doc. 70)("Muñoz Motion"). The Court held a hearing on October 3, 2018. The primary issues are: (i) whether the § 41-4-6 immunity waiver in the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 through 41-4-27 ("NMTCA"), applies to Defendant Claudia Rodriguez-Nuñez when her alleged delay in responding to Plaintiff Shawna Tanner's request for medical attention affected only Tanner; (ii) whether the NMTCA § 41-4-9 immunity waiver applies to Rodriguez- Nuñez when she was not present in the medical unit during the time in question; (iii) whether the NMTCA § 41-4-6 immunity waiver applies to Defendant Tina Muñoz when her alleged delay in responding to Tanner's requests for medical attention and refusal to provide Tanner with a blanket and drinking cup affected only Tanner; and (iv) whether the NMTCA § 41-4-9 immunity waiver applies to Muñoz when she was not involved in clinical decision-making or supervision of the medical unit. For the reasons explained below, the Court concludes that neither immunity waiver applies to either Defendant, and the Court will grant both Motions.

FACTUAL BACKGROUND

Plaintiff Shawna Tanner, on behalf of herself and as personal representative of her deceased minor child, Jay Hinton Jr., (collectively, "Plaintiffs") filed the First Amended Complaint for Civil Rights Violations, Tort Claims, Wrongful Death, Statutory Violations, Damages, and Injunctive Relief, filed May 23, 2018 (Doc. 50)("Amended Complaint"). The Amended Complaint states that the Court "has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343, with supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367." Amended Complaint ¶ 1, at 1. Plaintiff Shawna Tanner was at all relevant times a New Mexico resident. See Amended Complaint ¶ 3, at 2. All the known Defendants are individuals who resided in the State of New Mexico at all relevant times or are entities who are incorporated or are authorized to do business in New Mexico. See Amended Complaint ¶ 2, at 1 (stating that venue is proper "in this District as Defendants are residents of New Mexico under 28 U.S.C. § 1391 and all of the acts complained of occurred in New Mexico."). See also Amended Complaint ¶¶ 5-12, at 2-4 (describing the Defendants' residences).

Tanner first brought the Complaint for Civil Rights Violations, Tort Claims, Statutory Violations, Damages, and Injunctive Relief, filed August 25, 2017 (Doc. 1)("Complaint") in federal district court against the following Defendants: (i) Timothy I. McMurray, M.D., the Metropolitan Detention Center in the County of Bernalillo, New Mexico ("MDC")'s Site Medical Director; (ii) Adriana Luna, R.N., an MDC Registered Nurse; (iii) Audrey Leber, R.N., an MDC Registered Nurse; (iv) Taleigh Sanchez, R.N., an MDC Registered Nurse; (v) Elisa Manquero, R.N., an MDC Registered Nurse; (vi) Correct Care Solutions LLC ("CCS"), a Kansas Limited Liability Company with a site office at the MDC, which "employed, contracted with, and exercised direct supervisory control" over McMurray, Luna, Leber, Sanchez, and Manquero, see Complaint ¶ 6, at 2; (vii) Thomas J. Ruiz, the MDC's Administrator; (viii) Board of County Commissioners ("BCC") of Bernalillo County, which contracted with CCS to provide health-care services to MDC inmates; (viv) additional health-care personnel, identified as Does 1-5; and (x) additional corrections personnel, including corrections officers, employed at the MDC and identified as Does 6-10. Complaint ¶¶ 4-9, at 2-3. In the Amended Complaint, Tanner withdrew the Complaint against Leber, and added the following Defendants: (i) Christopher Mercer, P.A., an MDC Physician Assistant; (ii) Ed Kossman, an MDC Health Services Administrator ("HSA"); (iii) Claudia Rodriguez-Nuñez, an MDC corrections officer; (iv) Martina Sanchez-Filfred, an MDC corrections officer; and (v) Tina M. Muñoz, an MDC corrections officer. See Amended Complaint ¶¶ 6-8 and 12, at 2-4.

According to the Amended Complaint, Tanner began a term of incarceration at the MDC on October 4, 2016, while in the last month of her pregnancy. See Amended Complaint ¶ 34, at10. Upon intake, Tanner disclosed her pregnancy "as well as her desire and intent to give birth and keep the child" to the MDC and medical personnel. Amended Complaint ¶ 35, at 10. Tanner also disclosed her medical history relevant to diagnosing possible risks associated with her pregnancy, including "prior pregnancies, past substance abuse, and her age (33 years old)." Amended Complaint ¶ 36, at 10-11.

Tanner remained in the MDC's custody from on or about October 4, 2016, until on or about October 20, 2016, aside from a brief emergency visit to Lovelace Women's Hospital in Albuquerque, New Mexico, on or about October 17, 2016. See Amended Complaint ¶ 34, at 10. The Amended Complaint alleges that, while at the MDC:

[Tanner] was dependent on MDC personnel and CCS personnel for access to timely and appropriate prenatal care, medical examinations by a clinician qualified to provide such care, appropriate prenatal laboratory and diagnostic tests, specialized obstetrical services and resources for her pregnancy, transport to an appropriate community facility for delivery and peripartum care, and all emergency medical care.

Amended Complaint ¶ 34, at 10. According to the Amended Complaint, Rodriguez-Nuñez and Muñoz were corrections officers at the MDC during the time that the Amended Complaint addresses, and at all relevant times "were acting under the color of law and within the scope of their duties and employment as corrections officers at MDC." Amended Complaint ¶ 12, at 4.

Tanner alleges that:

On or about December 9, 2014, Defendant BCC selected, approved, and entered into a written contract between Bernalillo County, New Mexico and Defendant CCS entitled "Medical, Dental, Mental Health, Psychiatric and Methodone Services Agreement" (hereinafter "Medical Services Agreement"). That agreement remains in effect, as amended, for a four-year term.

Amended Complaint ¶ 13, at 4. Tanner alleges that, under the Medical Services Agreement, BCCand CCS represented that healthcare for the MDC inmates would comply with all current and future standards issued by the National Commission on Correctional Health Care ("NCCHC") and the American Correctional Association ("ACA"). See Amended Complaint ¶ 14, at 4. Tanner alleges that, under the Medical Services Agreement, CCS agreed to train the MDC staff on NCCHC and ACA standards, "including training on recognizing emergencies and procedures for referring inmates for care." Amended Complaint ¶ 14, at 4. Tanner alleges that the NCCHC standards in effect when CCS and BCC entered into the Medical Services Agreement contain a standard entitled "Counseling and Care of the Pregnant Inmate," which requires that: "Pregnant inmates receive timely and appropriate prenatal care, specialized obstetrical services when indicated, and postpartum care. Pregnant inmates are given comprehensive counseling and assistance in accordance with their expressed desires regarding their pregnancy." Amended Complaint ¶ 15, at 4-5. Tanner alleges that CCS and BCC contracted to add a provision for "bi-weekly onsite OB/GYN clinics at 4 hours per clinic" to the Medical Services Agreement. Amended Complaint ¶ 20, at 6. Tanner alleges that, in addition to the provision for bi-weekly onsite OB/GYN clinics, the Medical Services Agreement

required a staffing pattern with at least two physicians, two physician assistants or other mid-level providers, as well as the site medical director, such that a physician was on-call and available for site visits twenty-four hours, seven days per week, and daily rounds of the facility's Sheltered Housing Unit (SHU) were conducted by a physician, physician assistant, or other mid-level provider seven days a week.

Amended Complaint ¶ 21, at 6. Tanner alleges that the ACA standards in effect when CCS and BCC entered into the Medical Services Agreement require that "[p]regnant inmates have access to obstetrical services by a qualified provider, including prenatal, peripartum, and postpartum care."

Amended Complaint ¶ 18, at 5. Tanner alleges that the Medical Services Agreement contained specific provisions regarding referral of pregnant inmates for prenatal care, identification of patients in need of hospitalization or other off-site services, and other such responsibilities. See Amended Complaint ¶ 22, at 6. Tanner alleges that McMurray's responsibilities under the Medical Services Agreement include "develop[ing] special medical programs for inmates who require close medical supervision, special accommodations, and/or chronic and convalescent care, including a plan of treatment with directions for health care staff and correctional staff regarding their roles in the care and supervision of such inmates." Amended Complaint ¶ 23, at 6-7. Tanner alleges that Kossman's responsibility under the Medical Services Agreement "is to monitor the performance of all health care personnel rendering patient care and advise the Chief of Corrections, Defendant Tom Ruiz, on specific clinical issues as appropriate." Amended Complaint ¶ 24,...