Hogan et al v. Wellstar Health Network, Inc. et al

Filing 94

ORDER granting all Defendants' Motions to Dismiss 8 , 9 , 54 , 55 , 59 and 68 with regard to Plaintiffs' 42 U.S.C. § 1983 claims. All remaining state law claims against all Defendants are DISMISSED without prejudice. Plaintiffs' Motions to Amend the Amended Complaint to Add Parties are DENIED 31 AND 53 . Plaintiff's Motion for Rule 11 Sanctions 32 is DENIED. Signed by Judge Richard W. Story on 3/14/13. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TAYLOR HOGAN and
SAVANTE HOPKINS, SR.,
Plaintiffs,
v.
WELLSTAR HEALTH
NETWORK, INC., DAVID
NGUYEN, P.A., individually and
as employee of Wellstar Health
Systems, Inc., LORRIE TATE,
individually and as employee of
the Cobb County Sheriff’s
Department; NEIL WARREN,
individually and as Sheriff of Cobb
County, COBB COUNTY, COBB
COUNTY BOARD OF HEALTH,
JOHN D. KENNEDY, individually
and as Director of Cobb County
Board of Health, ANNA MARIE
BOVEE, individually and as
employee of Cobb County Board
of Health, EVELYN WOLFRAM
TAYLOR, individually and as
employee of Cobb County Board
of Health, and MAYDIA
LATREECE MOSLEY,
individually and as employee of
Cobb County Board of Health,
Defendants.

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CIVIL ACTION NO.
1:12-CV-1418-RWS

ORDER
This case comes before the Court on: Defendants Neil Warren and Cobb
County’s Motion to Dismiss [59]; Defendants Cobb County Board of Health,
Evelyn Wolfram Taylor, and Maydia Latreece Mosley’s Motion to Dismiss
[55]; Defendants John D. Kennedy, M.D., and Lorrie Tate’s Motion to Dismiss
[54]; Wellstar Health Network, Inc’s Motion to Dismiss by Special Appearance
[8]; David Nguyen, P.A.’s Motion to Dismiss [9]; Defendant Anna Bovee’s
Motion to Dismiss [68]; Plaintiffs’ Motion to Amend Complaint and First
Amended Complaint to Add Parties [31]; Plaintiffs’ Motion for Leave to
Amend Plaintiffs’ Complaint, First Amended Complaint and Second Amended
Complaint to Add Party [53]; and Plaintiffs’ Rule 11 Motion for Sanctions
Against Wellstar Health Systems, Inc. And David Nguyen [32]. After
reviewing the record, the Court enters the following Order.
Background
On August 3, 2010, Taylor Hogan was arrested and incarcerated at the
Cobb County Adult Detention Center (“CCADC”).1 At the time of her arrest,

1

Unless otherwise noted, the facts are taken from the First Amended
Complaint [13]. All well-pleaded facts in the Amended Complaint are accepted as
true at the motion to dismiss stage. Bryant v. Avado Brands, Inc., 187 F.3d 1271,
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Taylor Hogan was twenty-three weeks pregnant. During booking at the
CCADC, Taylor Hogan informed a jail nurse named I. Poole that she was
twenty-three weeks pregnant. Taylor Hogan was given a pregnancy test and put
on prenatal care. Prior to her incarceration, Taylor Hogan had a normal
pregnancy with no complications and regular visits to her OB-GYN.
On August 9, 2010, at around 6:00 p.m., Taylor Hogan started having
pains in her pelvic area and cramps. She advised Deputy Sheriff Stoker of the
pain and cramping. Deputy Stoker did not take any action, but directed her to
lie down. At this time, Taylor Hogan was at least twenty-four weeks pregnant.
For the next hour, Taylor Hogan continued to complain about her pain
and cramping. She was taken to a pod containing forty other inmates. At that
point, the pain became unbearable and she started crying and asking to see a
doctor. Fellow inmates called for help and Taylor Hogan was placed in a
nearby hallway to await transport to the infirmary. For several hours, she was
left in the hallway while she cried and vomited.
At about 11:00 p.m., Taylor Hogan was admitted to the infirmary. Jail
personnel did not call a doctor. Defendant David Nguyen, a Physician’s
1273 n.1 (11th Cir. 1999).
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Assistant on duty, ordered that Taylor Hogan remain in the infirmary until she
could be seen by a doctor the next morning. Defendant Nguyen did not perform
a physical examination of Taylor Hogan or prescribe any further medical
treatment. Defendants Bovee, Taylor, and Mosley were nurses staffed in the
infirmary. They did not provide any medical care to Taylor Hogan. No jail
medical staff performed a cervical examination or monitored the fetal heart rate.
The jail did not have a fetal heart monitor.
Taylor Hogan was without fluids in the infirmary, so she requested water.
Deputy Stoker delivered water to the front of her infirmary room, but she could
not reach it. Taylor Hogan asked Deputy Stoker to hand her the water, but
Deputy Stoker refused, so Taylor Hogan crawled to get the water.
At approximately 12:55 a.m. on August 10, 2010, Taylor Hogan
delivered her baby, Savante Hopkins, Jr., in the bathroom without assistance.
The baby fell on the concrete floor head first. The jail medical staff placed
Savante on top of his mother’s stomach, but did not perform an examination of
the baby. The medical staff did not cut the umbilical cord. Minutes after
Savante was born, jail medical staff called an ambulance. No medical care was
provided to the baby until the ambulance arrived.
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Within an hour of delivery, Taylor Hogan and Savante were admitted to
Wellstar Cobb County Hospital. The doctors at the hospital predicted that
Savante would live for several hours and they reunited him with Taylor Hogan.
Savante Hopkins, Jr. died around 9:55 a.m. on August 10, 2010.
Taylor Hogan and Savante Hopkins, Sr., for themselves and on behalf of
Savante Hopkins, Jr., assert several claims against Defendants, including:
violation of 42 U.S.C. § 1983 (the only federal law at issue), negligence,
medical malpractice, and respondeat superior or supervisory liability. All
Defendants have moved to dismiss the claims against them.
Discussion
I.

Legal Standard - Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a

“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” mere labels and conclusions or “a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
order to withstand a motion to dismiss, “a complaint must contain sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its
face when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555.
II.

Analysis
A.

Claims Against County Defendants

Neil Warren is and was at all times relevant to this dispute the Sheriff of
Cobb County. Plaintiffs claim that Sheriff Warren and Cobb County violated
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42 U.S.C. § 1983 (Count I). Cobb County is named in Count IV as an entity
“responsible for the wrongful acts and omissions of its agents or employees
acting within the scope of their authority or employment and as such, are
responsible for the negligence, violation of 42 U.S.C. § 1983, and deliberate
indifference of its employees” (“respondeat superior” theory). Cobb County is
also named in Count VI as an entity that “breached [its] duty by failing to
provide adequate supervision and training on monitoring pregnant patients and
providing medical care to pregnant patients and their newborn infants”
(“inadequate training and supervision” theory). County Defendants move to
dismiss the claims against them under Federal Rule of Civil Procedure (“Rule”)
12(b)(1) and 12(b)(6). (See generally, County Def.s’ MTD, Dkt. [59].)
1.

Cobb County

To the extent Plaintiff relies on a theory of respondeat superior to
establish Cobb County’s liability under 42 U.S.C. § 1983, the claim must fail.
“The Supreme Court has placed strict limitations on municipal liability under §
1983. A county’s liability under § 1983 may not be based on the doctrine of
respondeat superior.” Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir.

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2003) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989) and Monnell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).
To establish municipal liability under § 1983, Plaintiffs must allege facts
to show the county’s culpability in the alleged constitutional violation. “A
county is ‘liable under section 1983 only for acts for which the county is
actually responsible.’” Id. (quoting Marsh v. Butler Cnty., 268 F.3d 1014, 1027
(11th Cir. 2001)). “Indeed, a county is liable only when the county’s official
policy causes the constitutional violation. Thus, [Plaintiffs] must identify a
municipal policy or custom that caused [their] injury.” Id. (internal quotations
and citations omitted).
To establish liability under § 1983 based on a failure to train or supervise
subordinates, “a plaintiff must show that the ‘failure to train amounts to
deliberate indifference to the rights of persons with whom the subordinates
come into contact and the failure actually caused the injury of which the
plaintiff complaints.’” McDaniel v. Yearwood, No. 2:11-CV-00165-RWS,
2012 WL 526078, at *16 (N.D. Ga. Feb. 16, 2012) (quoting Belcher v. City of
Foley, 30 F.3d 1390, 1397 (11th Cir. 1994)). “Failure to train can amount to
deliberate indifference when the need for more or different training is obvious,
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... such as when there exists a history of abuse by subordinates that has put the
supervisor on notice of the need for corrective measures, ... and when the failure
to train is likely to result in violation of the constitutional right.” Id.
Here, Plaintiffs have not identified any policy or custom adopted or
promulgated by Cobb County that caused their injury. They also have not
pointed to any history of abuse or widespread problems that would have put the
County on notice regarding the need for more training or supervision. The
Amended Complaint contains only conclusory, vague allegations about the
County’s failure to provide adequate supervision, training, emergency
pregnancy plans, equipment, and staff. (Amended Complaint, Dkt. 13] at ¶¶
54-57.) Furthermore, Plaintiffs have not sufficiently pled causation. See Polk
Cnty. v. Dodson, 454 U.S. 312, 326 (1981) (the municipal policy must be the
“moving force” behind the constitutional violation for a county to be liable).
Therefore, Plaintiffs’ claims against Cobb County for violation of § 1983
(Counts I, IV, and V) are DISMISSED.
2.

Sheriff Warren - Official Capacity

County Defendants argue that Sheriff Warren, in his official capacity, is
entitled to Eleventh Amendment immunity and therefore, this Court lacks
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subject-matter jurisdiction over Plaintiffs’ § 1983 claim against him. The
Eleventh Amendment protects states from being sued in federal court without
their consent. Here, Defendants argue, Sheriff Warren was acting as an arm of
the state and consequently, the state’s immunity extends to him. Plaintiffs
counter that Sheriff Warren was acting as an arm of the county in this case and
is therefore not entitled to Eleventh Amendment immunity.
“Whether a defendant is an ‘arm of the state’ must be assessed in light of
the particular function in which the defendant was engaged when taking the
actions out of which liability is asserted to arise.” Manders v. Lee, 338 F.3d
1304, 1308 (11th Cir. 2003). The Eleventh Circuit has held that generally, “a
sheriff’s ‘authority and duty to administer the jail in his jurisdiction flows from
the State, not [the] County.’” Purcell ex rel. Estate of Morgan v. Toombs Cnty.,
Ga., 400 F.3d 1313, 1325 (11th Cir. 2005) (quoting Manders, 338 F.3d at
1305). However, Manders laid out four factors to determine whether an entity
is an “arm of the State” in carrying out a particular function: “(1) how state law
defines the entity; (2) what degree of control the State maintains over the entity;
(3) where the entity derives its funds; and (4) who is responsible for judgments
against the entity.” 388 F.3d at 1309. Applying the Manders factors, at least
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one Court in this District has concluded that when caring for the medical needs
of inmates, the Sheriff acts as an arm of the county, not the state. See Dukes v.
Georgia, 428 F. Supp. 2d 1298, 1321-22 (N.D. Ga. 2006).
This Court, however, need not decide the issue. If Sheriff Warren is
considered an arm of the state, he is entitled to Eleventh Amendment immunity.
If he is considered an arm of the County, the claim against him is in reality a
claim against Cobb County, and for the reasons stated above in Part II.A.1.,
supra, the claim fails. See Brandon v. Holt, 469 U.S. 464, 471 (1985).
Therefore, the § 1983 claim against Sheriff Warren in his official capacity is
DISMISSED.
3.

Sheriff Warren - Individual Capacity

Plaintiffs assert that Sheriff Warren, in his individual capacity, and all
other Defendants violated 42 U.S.C. § 1983 “by failing to provide them with
adequate and timely medical treatment, access to qualified medical providers,
and appropriate medical tests and intervention.” (Amended Complaint, Dkt.
[13] at 2.) Plaintiffs allege that these failures by Defendants amounted to
deliberate indifference to serious medical needs in violation of their Eighth

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Amendment right to be free from cruel and unusual punishment.2 (Id. at 14.)
Sheriff Warren contends that he is entitled to qualified immunity and therefore,
the § 1983 claim against him in his individual capacity must be dismissed. The
Court agrees with Sheriff Warren.
a.

Standard for § 1983 liability based on inadequate
medical care

To bring a § 1983 claim based on inadequate medical care, Plaintiffs
must show there was “deliberate indifference to serious medical needs.” Estelle
v. Gamble, 429 U.S. 97, 106 (1976). The analysis includes an objective and a
subjective component. “First, a plaintiff must set forth evidence of an
objectively serious medical need. Second, a plaintiff must prove that the prison
official acted with an attitude of ‘deliberate indifference’ to that serious medical
need.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (internal
quotations and citations omitted).

2

As various Defendants note, Plaintiffs have incorrectly alleged violations of
the Eighth Amendment. Because Taylor Hogan was a pre-trial detainee during the
events in question, the due process clause of the Fourteenth Amendment is the
applicable constitutional provision. See Hamm v. DeKalb County, 774 F.2d 1567,
1572 (11th Cir. 1985). However, the minimal standards for treatment of pre-trial
detainees under the Fourteenth Amendment “can be defined by reference to the eighth
amendment rights of convicted inmates.” Id. at 1574.
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“A serious medical need is considered ‘one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.’” Id.
(quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.
1994)). The medical need must be “one that, if left unattended, poses a
substantial risk of serious harm.” Evans v. St. Lucie Cnty. Jail, 448 Fed. App’x
971, 974 (11th Cir. 2011).
Deliberate indifference, the subjective component, is more than mere
negligence. “An official acts with deliberate indifference when he knows that
an inmate is in serious need of medical care, but he fails or refuses to obtain
medical treatment for the inmate.” Farrow, 320 F.3d at 1246 (quoting
Lancaster v. Monroe Cnty., 116 F.3d 1419, 1425 (11th Cir. 1997)). Thus,
deliberate indifference has three components: “(1) subjective knowledge of a
risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than
mere negligence.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).
b.

Qualified Immunity Standard

Plaintiffs allege that Defendants provided inadequate medical care to
both Taylor Hogan and Savante Hopkins, Jr. Sheriff Warren claims that he is
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entitled to qualified immunity on both accounts. Defendants sued in their
individual capacities for discretionary acts are protected from suit by the
doctrine of qualified immunity, unless those acts violate “clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“To receive qualified immunity, a government official must first prove
that he was acting within his discretionary authority.” McDaniel, 2012 WL
536078, at *13 (quoting Cottone v. Jenne, II, 326 F.3d 1352, 1357 (11th Cir.
2003)). “Once the government official has satisfied this initial burden, the
burden shifts to the plaintiff to show that the official is not entitled to qualified
immunity.” Id. The latter part of the analysis is two-pronged. “First, the court
addresses the ‘threshold question’ of whether the facts as alleged, viewed in the
light most favorable to the plaintiff, establish a constitutional violation.” Id.
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “Only if there is a
constitutional violation does the court proceed to the second step to determine
whether that constitutional right was clearly established.” Id.
To show that a constitutional right was clearly established, a plaintiff
must show that “when the defendant acted, the law established the contours of a
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right so clearly that a reasonable official would have understood his acts were
unlawful.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)
(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To determine
whether an official would have understood his conduct to be lawful or unlawful,
parties and courts must look to case law at the time of the alleged violation.
“[T]he salient question is whether the law at the time of the alleged violation
gave officials ‘fair warning’ that their acts were unconstitutional.” McDaniel,
2012 WL 536078, at *13 (quoting Holmes v. Kucynda, 321 F.3d 1069, 1078
(11th Cir. 2003)). “If case law, in factual terms, has not staked out a bright line,
qualified immunity almost always protects the defendant.” Post, 7 F.3d at 1557.
c.

Standards Applied to Sheriff Warren

The Court finds that Plaintiffs have not alleged sufficient facts to make
the threshold showing that Sheriff Warren, in his individual capacity,
committed a constitutional violation.3 Specifically, Plaintiffs have not alleged
facts to satisfy the subjective requirement for § 1983 liability. The deliberate
indifference standard requires subjective knowledge of a risk of serious harm

3

It is undisputed that Sheriff Warren was acting within his discretionary
authority.
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and disregard of that risk. Here, there are no allegations that Sheriff Warren
ever came into contact with Taylor Hogan, particularly not during the events in
question. Furthermore, there are no allegations that Sheriff Warren was ever
informed of Taylor Hogan’s medical complications.
The Amended Complaint states that “Defendants, each and every one of
them, had substantial knowledge that Ms. Hogan was pregnant because it was
documented in her inmate file and visible upon site.” (Amended Complaint,
Dkt. [13] ¶ 32.) Assuming for the sake of argument that Sheriff Warren did see
Taylor Hogan’s inmate file, that is not enough to show that he had subjective
knowledge of a serious medical need. “It is well established that simply being
pregnant – without more – does not constitute a serious medical condition.”
Webb v. Jessamine Cnty. Fiscal Court, 802 F. Supp. 2d 870, 878 (E.D. Ken.
2011). Furthermore, Plaintiffs’ conclusory statement that “the risk of such an
incident was obvious” is insufficient to show the Sheriff’s subjective
knowledge of a serious medical need or his disregard of that need. (See Pl.s’
Resp. to County Def.s’ MTD, Dkt. [73] at 31.) Therefore, Plaintiffs’ § 1983
claim against Sheriff Warren in his individual capacity is DISMISSED.

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B.

Claims Against Board of Health Defendants

The Cobb County Board of Health (“CCBH”) provides nursing staff to
the CCADC. Evelyn Wolfram Taylor, Maydia Latreece Mosley, and Lorrie
Tate are nurses employed by the CCBH. John D. Kennedy, M.D. is the
Director of the CCBH.
Plaintiffs allege that all Board of Health Defendants violated § 1983
(Count I) and committed medical malpractice (Count III).4 Plaintiffs bring a
respondeat superior claim against the CCBH on grounds that it is “responsible
for the wrongful acts and omissions of its agents or employees acting within the
scope of their authority or employment and as such, [is] responsible for the
negligence, violation of 42 U.S.C. § 1983, and deliberate indifference of its
employees” (Count IV). (Amended Complaint, Dkt. [13] ¶ 50.) Plaintiffs also
bring a claim for “inadequate training and supervision” against the CCBH

4

Although Count III is labeled “Negligence of CCBH and Its Employees,” it
alleges that “CCBH and its employees named herein failed to bring to this relationship
a reasonable degree of care and skill of physicians, physicians assistants, and nurses.”
(Amended Complaint, Dkt. [13] ¶ 51.) Further, the count alleges, “CCBH and its
employees owed a duty to their patients, Ms. Hogan and Baby Hopkins, to bring to the
exercise of their profession a reasonable degree of skill and care.” (Id. ¶ 52.)
Therefore, the Court finds that this count is properly considered a medical malpractice
claim, not a claim for mere negligence.
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(Count VI). The Board of Health Defendants move to dismiss all of the claims
against them.
1.

CCBH

Plaintiffs’ § 1983 claims against the CCBH fail for the same reasons they
fail against Cobb County. (See Part II.A.1, supra). Respondeat superior
liability is not available under § 1983. Furthermore, Plaintiffs have failed to
state a claim for § 1983 liability based on a CCBH policy or on the CCBH’s
failure to adequately train or supervise its employees. Plaintiffs raise the same
vague, conclusory allegations against the CCBH as they assert against Cobb
County. No specific CCBH policy or custom is identified as the driving force
behind the alleged constitutional violations. Furthermore, no causation is
shown between a CCBH policy or the CCBH’s failure to train its staff and
Plaintiffs’ injuries. Therefore, the § 1983 claims against the CCBH are
DISMISSED.
2.

John D. Kennedy, M.D.

In their Amended Complaint, Plaintiffs fail to make any factual
allegations against Dr. Kennedy. He is simply identified as the Director of the
CCBH and therefore, the person “responsible for management of the CCBH
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including responsibility for the safety, well-being, and medical care of inmates
at the CCADC at all times relevant hereto.” (Amended Complaint, Dkt. [13] ¶
15.)
a.

Official capacity

The employer of Dr. Kennedy is in dispute. (See Pl.s’ Resp. to Board of
Health Def.s’ MTD, Dkt. [60] at 20-23.) However, as Dr. Kennedy correctly
points out, the resolution of this dispute is immaterial. If Dr. Kennedy is
employed by the State of Georgia, he is entitled to Eleventh Amendment
immunity. (See discussion, supra, Part II.A.2). On the other hand, if he is
employed by the CCBH, the claims against him in his official capacity are
effectively claims against the CCBH, and those claims fail for the reasons stated
above. (Id.) Therefore, the claims against Dr. Kennedy in his official capacity
are DISMISSED.
b.

Individual capacity

Plaintiffs have alleged no facts against Dr. Kennedy in his individual
capacity to support a § 1983 claim. For the same reasons that Plaintiffs’ § 1983
claim fails against Sheriff Warren in his individual capacity (see discussion,
supra, Part II.A.3.c.), it must fail here. Plaintiffs simply have not alleged
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sufficient facts – or any facts – to show a plausible claim under § 1983,
particularly with regard to the subjective component of their inadequate medical
care claim. Therefore, the § 1983 claim against Dr. Kennedy in his individual
capacity is DISMISSED.
3.

Lorrie Tate

Like Dr. Kennedy, Tate is not mentioned in any of the factual allegations
in the Amended Complaint. She is simply identified (erroneously) as an
employee of the Cobb County Sheriff’s Department and/or Cobb County. To
the extent Plaintiffs raise § 1983 claims against her in her official and individual
capacities, those claims fail for the reasons stated above with regard to Dr.
Kennedy. Therefore, the § 1983 claims against Tate are DISMISSED.
4.

Evelyn Taylor and Maydia Latreece Mosley

Plaintiffs allege that Taylor and Mosley were staffed in the infirmary
during the events in question, but provided no medical care to Taylor Hogan or
Savante Hopkins, Jr. (Amended Complaint, Dkt. [13] ¶¶ 37-50.)
Consequently, Plaintiffs have raised § 1983 and medical malpractice claims
against these Plaintiffs. Taylor and Mosley argue that they are entitled to

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qualified immunity as to the § 1983 claim against them. The Court agrees with
Defendants.
a.

Pre-delivery (Taylor Hogan)

First, the Court will determine whether the facts alleged could support a
finding that a constitutional violation occurred. Regarding the objective
component of Plaintiffs’ § 1983 claim, there is no allegation that a physician
diagnosed Taylor Hogan’s pre-term labor and mandated treatment. Therefore,
the inquiry is whether her medical need was so obvious that a lay person would
have recognized the need for immediate medical attention.
Again, it is well established that simply being pregnant is not a serious
medical condition. Webb, 802 F. Supp. 2d at 878. However, “an inmate in
labor has a serious medical need.” Id. The question is, at what point does it
become obvious to a layperson that a woman is in labor? Defendants identify
two cases that are instructive on this issue: Webb and Patterson v. Carroll Cnty.
Det. Ctr., No. 05-101-DLB, 2006 WL 3780552 (E.D. Ken. Dec. 20, 2006).
In Webb, the court found that a serious medical need existed when the
plaintiff, nine months pregnant, displayed “readily recognizable symptoms of
labor,” including: sharp back pain and severe cramping, a sensation that she was
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“burning up” and needed to have a bowel movement, vaginal discharge that she
believed to be the mucus plug from her cervix, and rupture of the amniotic sac
(i.e., her water broke). 802 F. Supp. 2d at 880-81. The court in Webb
distinguished Patterson, which involved an inmate in her second trimester who
“complained of no pregnancy-related medical problems other than cramping.”
Id. at 880. According to the Webb court, “[r]ather than looking for a bright line
in the course of labor, Courts consider the amount of time left before a pregnant
inmate reaches the full term of her pregnancy, the symptoms of labor that she
has exhibited, any previous or potential complications with respect to the
inmate’s pregnancy, and –ultimately – the reaction of jail officials.” Id. (citing
Patterson, 2006 WL 3780552, at *3-4).
Here, all of the Webb factors weigh against concluding that Taylor
Hogan had an obvious and serious medical need. The Amended Complaint
states that Taylor Hogan was twenty-four weeks pregnant (i.e., in her second
trimester) and that prior to incarceration, “she had a normal pregnancy with
regular visits to the OBGYN with no complications.” (Amended Complaint,
Dkt. [13] ¶¶ 27, 29.) The Amended Complaint also indicates that Taylor Hogan
was put on prenatal care as soon as she was booked at the CCADC. (Id. ¶ 26.)
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The symptoms reported by Taylor Hogan to jail personnel were cramps, pain
and vomiting. (Id. ¶¶ 28, 31, 33.) These symptoms are not as serious or
obviously pregnancy-related as amniotic fluid leakage, vaginal discharge, or
vaginal bleeding – conditions which have been found to present objectively
serious medical needs in pregnant inmates. See Townsend v. Jefferson Cnty.,
601 F.3d 1152 (11th Cir. 2010) (serious medical need existed where plaintiff
admitted using crack cocaine and smoking cigarettes every day of her
pregnancy and experienced abdominal pain and vaginal bleeding for an entire
day); Goebert v. Lee Cnty., 510 F.3d 1312 (11th Cir. 2007) (serious medical
need existed where inmate suffered prolonged amniotic leakage). Therefore,
Plaintiffs have not alleged sufficient facts to show that Taylor Hogan presented
an objectively serious medical need prior to delivery of her son.
Even if an objectively serious medical need existed, Plaintiffs have not
shown that Defendants Taylor and Mosely acted with deliberate indifference
toward that need. Ms. Hogan was admitted to the infirmary around 11:00 p.m.
(Amended Complaint, Dkt. [13] ¶ 34.) There are no allegations that Defendants
Taylor or Mosely were aware of Ms. Hogan’s condition before that time. David
Nguyen, a physician’s assistant, ordered that Ms. Hogan remain in the infirmary
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until she could be seen by a doctor in the morning. (Id. ¶ 35.) There are no
allegations that Ms. Hogan’s condition worsened or changed after Nguyen gave
his orders. Ms. Hogan was left in a bed in the infirmary. The Amended
Complaint states that Ms. Hogan requested fluids from Deputy Stoker, but does
not indicate that Ms. Hogan requested any additional assistance from
Defendants Taylor or Mosley. (Id. ¶ 44.)
Around 1:00 a.m., just two hours after being admitted to the infirmary,
Taylor Hogan gave birth to Savante Hopkins Jr. without assistance in the
bathroom. The Court cannot conclude that Defendants Taylor and Mosley
acted with deliberate indifference when they obeyed the instructions of a
superior (Nguyen) and when Taylor Hogan’s condition and symptoms did not
change or worsen until she gave birth. This is not a case of prolonged or
intentional neglect of an obvious and serious medical need. Therefore,
Plaintiffs have not satisfied the objective or the subjective standard for § 1983
liability as to these Defendants before Taylor Hogan delivered her baby.
b.

Post-delivery (Taylor Hogan and Savante Hopkins,
Jr.)

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Defendants concede that after Taylor Hogan gave birth, an objectively
serious medical need arose as to both her and her infant. (Def.s CCBH, Taylor,
and Mosley MTD Br., Dkt. [55-1] at 14.) However, Taylor and Mosley assert
that there are no allegations showing that their response to this serious medical
need amounted to deliberate indifference. (Id. at 14-15.) Again, the Court
agrees with Defendants.
Plaintiffs allege that Defendants demonstrated deliberate indifference by
failing to examine the baby and sever the umbilical cord. (Amended
Complaint, Dkt. [13] ¶¶ 47-48.) Instead, Defendants simply placed the baby on
top of his mother’s stomach. (Id. ¶ 46.) However, the Amended Complaint
admits that jail medical staff called an ambulance within minutes of the
delivery, and that Taylor Hogan and her baby were admitted to a hospital within
an hour of delivery. (Id. ¶¶ 49, 51.)
Given the limited resources at the jail infirmary to treat a severely
premature baby, jail medical staff opted to call for emergency services and have
Ms. Hogan and her baby transported to a hospital facility. These actions do not
show intentional neglect or deliberate indifference. There is no indication that
Defendants delayed in calling for help or that they had any clearly superior
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option available to them for the treatment of Ms. Hogan and Baby Hopkins.
The bottom line is, the jail medical staff took action and they acted quickly.
See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (courts will not
second guess the propriety or adequacy of a particular course of treatment and
“a simple difference in medical opinion” does not constitute deliberate
indifference). Therefore, based on the allegations in the Amended Complaint,
the Court cannot conclude that Defendants Taylor and Mosley acted with
deliberate indifference toward Taylor Hogan or Savante Hopkins, Jr. following
the birth.
The Court also notes that Plaintiffs have not identified any case law
showing that Defendants Taylor and Mosley’s conduct violated a “clearly
established” constitutional right before or after the delivery. In fact, the case
law discussed above suggests that there was no constitutional violation, let
alone a “clearly established” right. Therefore, the § 1983 claims against these
Defendants are DISMISSED.
C.

Claims Against Wellstar Defendants

Wellstar is a private entity that contracted to provide administrative
services, medical care, and medical personnel to the CCADC. David Nguyen is
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a physician’s assistant and is employed by Wellstar. Anna Bovee is a nurse
employed by Wellstar. Plaintiffs assert claims for violation of § 1983 (Count I)
and medical malpractice (Count II) against all Wellstar Defendants. Plaintiffs
assert a claim based on respondeat superior against Wellstar for “the
negligence, violation of 42 U.S.C. § 1983, and deliberate indifference of its
employees” (Count IV). Plaintiffs also bring a claim for “inadequate training
and supervision” against Wellstar (Count VI). Finally, Plaintiffs assert a claim
against David Nguyen for practicing medicine without the guidance or
supervision of a licensed medical physician (Count VII).
At the outset, the Court must determine whether the Wellstar Defendants
should be considered state actors in this case. If they were acting under color of
state law, § 1983 and qualified immunity apply to them; if they were not, there
can be no § 1983 liability. “Section 1983 provides a cause of action against any
person who deprives an individual of federally guaranteed rights ‘under color’
of state law. Anyone whose conduct is ‘fairly attributable to the state’ can be
sued as a state actor under § 1983.” Filarsky v. Delia, 132 S. Ct. 1657, 1661
(2012) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

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In Filarsky, the Court addressed the issue of “whether an individual hired
by the government to do its work is prohibited from seeking [qualified]
immunity, solely because he works for the government on something other than
a permanent or full-time basis.” Id. at 1660. Filarsky involved a private
attorney who was hired by a city to investigate a particular city employee
suspected of committing fraud. The attorney and several public employees
were sued by the suspect for violation of § 1983.
The Court concluded that “immunity under § 1983 should not vary
depending on whether an individual working for the government does so as a
full-time employee, or on some other basis,” and that the private attorney was
entitled to qualified immunity like the public officials who were sued based
upon the same events. Id. at 1665. The Court reasoned that “[a]ffording
immunity not only to public employees but also to others acting on behalf of the
government similarly serves to ‘ensure that talented candidates [are] not
deterred by the threat of damages suits from entering public service.’” Id.
(quoting Richardson v. McKnight, 521 U.S. 399, 408 (1997)). “Indeed, it is
often when there is a particular need for specialized knowledge or expertise that

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the government must look outside its permanent work force to secure the
services of private individuals.” Id. at 1665-66.
The Filarsky Court distinguished Richardson, which involved prison
guards employed by a private company. In Richardson, the Court concluded
that, based on the particular circumstances of the case, the privately-employed
guards were not entitled to qualified immunity. 521 U.S. at 413. Specifically,
the Court stated:
[W]e have answered the immunity question narrowly, in
the context in which it arose. The context is one in which
a private firm, systematically organized to assume a
major lengthy administrative task (managing an
institution) with limited direct supervision by the
government, undertak[ing] that task for profit and
potentially in competition with other firms. The case
does not involve a private individual briefly associated
with a government body, serving as an adjunct to
government in an essential government activity, or acting
under close official supervision.
Id. The Richardson opinion includes an in-depth analysis of the history and
purposes behind the doctrine of qualified immunity. Ultimately, the Court
concluded, the doctrine was not meant to apply to private actors like the prison
guards in Richardson.

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The Wellstar Defendants argue that Filarsky controls here and therefore,
they are entitled to qualified immunity as to the § 1983 claim. Plaintiffs
maintain that this case is more analogous to Richardson and therefore, qualified
immunity does not apply. (See Pl.s’ Resp. to Def. Bovee’s MTD, Dkt. [84-1] at
11-17.) Of course, if Defendants were not acting under color of state law for
qualified immunity purposes, they were not acting under color of state law for
purposes of § 1983 liability.
Given the similarities between the Wellstar Defendants and the private
defendants in Richardson, and Plaintiffs’ own position that the Wellstar
Defendants did not act under color of state law,5 the Court finds that the
Wellstar Defendants should be treated as private actors in this case. Therefore,
the § 1983 claims against the Wellstar Defendants are DISMISSED.

5

Plaintiffs’ reliance on Richardson has substantial merit. This case does not
involve a single individual briefly associated with a government body like the private
attorney in Filarsky. Instead, like the defendants in Richardson, the Wellstar
Defendants are affiliated with a private firm, systematically organized to assume a
major lengthy administrative task (administration of health clinics in Cobb County
detention facilities, as well as provision of medical care and personnel in those
facilities) with limited direct supervision by the government, undertaking that task for
profit and potentially in competition with other firms. (See Agreement Regarding
Inmate Medical Care, Dkt. [60-3].)
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In sum, the Court dismisses all § 1983 claims against all Defendants in
this case. The remaining causes of action are state law claims. The Court
declines to exercise jurisdiction over these remaining claims. Therefore, all
remaining state law claims are DISMISSED without prejudice.
D. Plaintiffs’ Motions
1.

Motions to Amend

Plaintiffs have filed multiple motions to amend the Amended Complaint
to add parties. ([31] and [53].) In light of the Court’s dismissal of all of
Plaintiffs’ claims in this action, these motions are DENIED.
2.

Motion for Sanctions

Plaintiffs move for Rule 11 sanctions against Defendants Wellstar Health
Network, Inc. and David Nguyen [32] on grounds that these Defendants’
motions to dismiss are “frivolous,” “unfounded in both law and fact,” and “an
abuse of the litigation process.” (Pl.s’ Rule 11 Br., Dkt. [32-1] at 2.)
Specifically, Plaintiffs challenge Defendants’ arguments that an expert affidavit
was required with the Complaint to set forth a claim for medical malpractice,
and that without such affidavit, Plaintiffs’ Complaint did not satisfy Rule 8
notice pleading standards.
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Rule 11 allows a court to impose sanctions on an attorney who submits a
written motion “for any improper purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(c).
Further, sanctions may be imposed if the claims, defenses, and other legal
contentions in a written motion are not supported by law or by a nonfrivolous
argument for extending, modifying, or reversing existing law. Id. The Court
finds no circumstances warranting sanctions to be present here.
Defendants’ argument regarding the need for an expert affidavit at the
pleading stage in a medical malpractice case is based on O.C.G.A. § 9-11-9.1.
They assert that without such an affidavit, Plaintiffs cannot state a plausible
claim for medical malpractice as required by Rule 8, Twombly, and Iqbal. (See
discussion, supra, Part I.) This Court has previously held that § 9-11-9.1 is a
procedural rule and does not apply in federal court. See Zurich Am. Ins. v.
Sheffer Eng’g Co., No. 1:09-CV-666-RWS, 2011 WL 344095, at *4 (N.D. Ga.
Jan. 31, 2011). However, Defendants, in their written and oral submissions,
have presented legitimate arguments for why they believe an expert affidavit in
a medical malpractice case should be considered a substantive requirement
under Georgia law, and why the case law in this District should be modified to
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reflect that. Defendants also cite case law from other districts to support their
arguments.
As Defendants correctly note, “Rule 11 was not intended to chill
innovative theories and vigorous advocacy that bring about vital and positive
changes in the law.” Fox v. Acadia State Bank, 937 F.2d 1566, 1569 (11th Cir.
1991) (internal citations and quotations omitted). “The standard for
determining whether conduct is sanctionable under Rule 11 is ‘reasonableness
under the circumstances.’” Id. The Eleventh Circuit has not yet addressed this
question regarding expert affidavits, so the issue remains unsettled. Defendants
have raised reasonable arguments regarding their interpretation of this unsettled
area of law, and in so doing, have preserved the issue for appeal. Therefore, the
Court finds that Rule 11 sanctions are not appropriate here and Plaintiffs’
motion is DENIED.
Conclusion
Based on the foregoing, all Defendants’ Motions to Dismiss [8, 9, 54, 55,
59 and 68] are GRANTED with regard to Plaintiffs’ 42 U.S.C. § 1983 claims.
All remaining state law claims against all Defendants are DISMISSED without
prejudice. Plaintiffs’ Motions to Amend the Amended Complaint to Add
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Parties are DENIED [31 and 53]. Plaintiffs’ motion for Rule 11 sanctions [32]
is DENIED.
SO ORDERED, this 14th day of March, 2013.

________________________________
RICHARD W. STORY
United States District Judge

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