Bridgewater v. Moore et al
ORDER granting in part and denying in part 12 Defendants' Motion to Dismiss for Failure to State a Claim; dismissing Defendant Corizon, Inc., denying the Motion in all other aspects; dismissing Wendy Kelly as a party; and directing the Clerk of the Court to change the docket to reflect the correct spelling of Defendant Michelle Cavallo's name. Signed by Magistrate Judge Joe J. Volpe on 6/19/2013. (srw) (Docket text modified on 6/19/2013 to correct a typographical error.) (thd).
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JOHN W. BRIDGEWATER,
CORIZON INC.; et al.,
MEMORANDUM AND ORDER
Before the Court is a Motion to Dismiss for Failure to State a Claim by Defendants Cavallo1
and Corizon, Inc. (Doc. No. 12.) Since filing of the Motion, Plaintiff has amended his claims. After
careful review, the Court finds the Motion should be GRANTED in part and DENIED in part.
STANDARD OF REVIEW
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662
(2009); Erickson v. Pardus, 551 U.S. 89, 93 (2007). While specific facts are not necessary, a
pleading that offers only “labels and conclusions” or “a formulaic recitations of the elements of a
cause of action will not do.” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)); Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008). In
order to meet the Rule 8(a) standard and survive a motion to dismiss under Rule 12(b)(6), the factual
allegations in the complaint must “state a claim to relief that is plausible on its face.” Ashcroft, 556
U.S. at 678 (quoting Bell Atlantic, 550 U. S. at 570); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
Defendant’s true name is Michelle Cavallo. (Doc. No. 13.) The Clerk of the Court shall
change the docket to reflect the correct spelling of her name.
594 (8th Cir. 2009). 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, 556 U.S. at 678 (quoting Bell Atlantic, 550 U.S. at 556); Ritchie v. St. Louis
Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011). The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic, 550 U. S. at 556). Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Bell Atlantic, 550 U.S.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a claim
on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989). If as a
matter of law “it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations,” a claim must be dismissed, without regard to whether it is based on
an outlandish legal theory or on a close but ultimately unavailing one. Id. at 327 (quoting Hishon
v. King & Spalding, 467 U.S. 69, 73 (1984); see O’Neal v. State Farm Fire & Cas. Co., 630 F.3d
1075, 1077 (8th Cir. 2011).
When considering a motion to dismiss under Rule 12(b)(6), the court must accept as true all
of the factual allegations contained in the complaint and all reasonable inferences from the
complaint must be drawn in favor of the nonmoving party. Erickson, 551 U.S. at 93-94; Young v.
City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001). The court reads the complaint as a
whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.
Braden, 588 F.3d at 594.
Title 42 of the United States Code, section 1983, allows an individual to bring suit against
persons who, under color of state law, have caused him to be “depriv[ed] of any rights, privileges,
or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983 (1996).
Section 1983 itself “creates no substantive rights; it merely provides remedies for deprivation of
rights established elsewhere.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (citations
omitted). In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person acting under the color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff states, “Corizon Inc. is the Corporation that hired Dr. Moore and Nurse Cavallo and
is responsible for doing back-ground checks on who they hire and making sure they have a license
to practice in that area they are assigned to.” (Doc. No. 26 at 2.) He later states he is suing because
of “[t]he actions of Corizon Inc. hiring a doctor w[ith]out a license.” (Id. at 4.)
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988);
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). “The traditional definition of acting under
color of state law requires that the defendant in a § 1983 action have exercised power possessed by
virtue of state law and made possible only because the wrongdoer is clothed with the authority of
state law.” West, 487 U.S. at 49 (internal quotations omitted). For liability under § 1983 to attach,
there must be “a causal link to, and direct responsibility for, the deprivation of rights.” Madewell
v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990).
To the extent that Plaintiff is seeking to hold Corizon liable under a theory of respondeat
superior, it is well settled that respondeat superior is inapplicable to claims under § 1983. See
Royster v. Nichols, 698 F.3d 681, 692 (8th Cir. 2012); Briscoe v. Cnty. of St. Louis, Missouri, 690
F.3d 1004, 1011 (8th Cir. 2012); Schaub v. VonWald, 638 F.3d 905, 924 (8th Cir. 2011). And any
allegation of negligent hiring fails to amount to a constitutional claim. See Estelle v. Gambler, 429
U.S. 97, 106 (1976). Therefore, Defendant Corizon Inc. is DISMISSED from this cause of action.
Since filing of the Motion to Dismiss, Plaintiff included more allegations against Ms.
Cavallo. He states, “On February 21, 2013, the plaintiff was refused medical treatment for chest
pains by Nurse Michelle Cavallo.” (Doc. No. 26 at 3.) He further states he was not seen by a nurse
despite repeated requests for medical care. Id. Accordingly, the Court concludes that Plaintiff has
stated enough to survive a motion to dismiss.
Additionally, comparing the documents filed with his Complaint (Doc. No. 1) with the
Motion to Dismiss, the record remains unclear as to whether Plaintiff exhausted his administrative
remedies with regard to Ms. Cavallo. Plaintiff states he “exhausted his administrative remedies
with respect to all claims and all defendants.” (Doc. No. 26 at 4.) Therefore, Motion to Dismiss
is DENIED as to Ms. Cavallo.
The Prison Litigation Reform Act requires federal courts to screen prisoner complaints
seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The court
must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally
frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek
monetary relief from a defendant who is immune from such relief.
Plaintiff alleges “Defendant Wendy Kelly is responsible for all grievances related to medical
and waits 4 months to respond. After several weeks the plaintiff has received no response from the
medical department.” (Doc. No. 26 at 3.)
As a general principle, prisoners do not have a constitutional right to enforce compliance
with internal prison rules or regulations. See Phillips v. Norris, 320 F.3d 844, 847 (8th Cir .2003);
Gardner v. Howard, 109 F.3d 427, 430 (8th Cir.1997). And allegations against Ms. Kelly based on
her grievance responses do not support a claim for relief. See Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir.1993). Ms. Kelly’s alleged failure to properly process Plaintiff’s grievances is not
actionable under § 1983. So Plaintiff fails to state a claim against Ms. Kelly and she should be
dismissed as a Defendant.
Defendants’ Motion to Dismiss For Failure to State a Claim should be GRANTED
in part and DENIED in part.
Defendant Corizon Inc. is DISMISSED.
The Motion is DENIED in all other respects.
Defendant Wendy Kelly is dismissed as a party for Plaintiff’s failure to state a claim
upon which relief may be granted.
SO ORDERED this 19th day of June, 2013.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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