Durden v. Newton County, Georgia et al

Filing 20

OPINION and ORDER granting 18 Motion for Reconsideration re: 4 Defendant NaphCare's MOTION to Dismiss with Prejudice and the Court hereby VACATES the portion of its June 11, 2014 Order 15 remanding the case to the State Court of Fu lton County. The portion of the Order 15 dismissing all claims except the state law medical negligence claim against Defendant Naphcare remains in effect. The Clerk is DIRECTED TO REOPEN the case against Defendant Naphcare. Further, Defendant Nap hCares Motion to Dismiss 4 is GRANTED in part and DENIED in part. It is GRANTED as to Plaintiff's claim for her stillborn child's damages for pain and suffering and her claim for negligence per se. It is DENIED as to all other claims. The Court having ruled on the merits of the pending Motions to Dismiss 4 , 6 , the Stay 9 entered by the Court on April 30, 2014, is hereby LIFTED, and the Parties shall proceed with discovery. Signed by Judge Richard W. Story on 1/5/2015. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LATISH DURDEN, Individually
and as Surviving Parent and Next
of Kin of Baby Durden, Deceased,
Plaintiff,
v.
NEWTON COUNTY, GEORGIA,
EZELL BROWN, NEWTON
COUNTY DETENTION
CENTER, NEWTON COUNTY
SHERIFF’S OFFICE, and
NAPHCARE, INC.,
Defendants.

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CIVIL ACTION NO.
1:14-CV-01163-RWS

ORDER
This case comes before the Court on Defendant NaphCare, Inc.’s Motion
to Dismiss [4] and Motion for Reconsideration [18]. After considering the
record, the Court enters the following Order.
Background1
This action arises out of the stillbirth of Plaintiff Latish Durden’s child
while she was an inmate at the Newton County Detention Center. Plaintiff was
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The following facts are taken from Plaintiff’s Complaint [1-1] and are
assumed to be true for the purposes of a motion to dismiss.

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in the second trimester of a high-risk pregnancy when Plaintiff’s incarceration
began on January 25, 2012. In fact, Plaintiff had notified prison staff that she
had a high-risk pregnancy and requested medical care related to her pregnancy
throughout her incarceration. On March 13, 2012, Plaintiff had surgery at the
Newton County Medical Center to treat an incompetent cervix. Her doctor
there instructed Plaintiff to observe strict bed rest while she was monitored
around the clock by prison staff. Staff members included employees of
Defendant NaphCare, Inc., a government contractor that has supplied healthcare
professionals and staff for the Newton County Detention Center since 2003.
Further, Defendants were instructed to monitor warning signs of pre-term labor,
including abdomen cramps, low dull back pain, pelvic pressure, vaginal
discharge, and diarrhea. If any of these warning signs did not go away after one
hour, Defendants were to bring Plaintiff back to the hospital.
In the days following her surgery, Plaintiff experienced a number of
symptoms, including nausea, vomiting, dehydration, dizziness, cramping, and
bleeding and other vaginal discharge. Plaintiff reported these symptoms and
repeatedly requested medical treatment, but Defendants refused to take any
action for several days. Plaintiff experienced extreme cramping and pain in her
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abdomen while she continued to bleed; she soaked through up to seven sanitary
pads each day. Plaintiff’s symptoms lasted for four to five days before prison
officials finally transported her by ambulance to the Newton County Medical
Center on the morning of March 19, 2012. On March 20, 2012, Plaintiff’s child
was stillborn.
Plaintiff filed this action in the State Court of Fulton County against the
Newton County Defendants and NaphCare, the company providing healthcare
services at the Newton County Detention Center, under 42 U.S.C. § 1983 for
deliberate indifference to serious medical needs resulting in a violation of her
Eighth Amendment rights. Plaintiff also asserted a state-law claim for medical
negligence. Defendants removed the case and then moved for dismissal.
Plaintiff later filed motions to remand, amend, and voluntarily dismiss her
Complaint. On June 11, 2014, the Court entered an Order [15] dismissing all of
Plaintiff’s claims except her state-law negligence claim against NaphCare and
then remanded the case to the State Court of Fulton County. NaphCare moves
for reconsideration of the Court’s decision to remand.
Discussion
I.

Motion for Reconsideration
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On April 18, 2014, Defendants filed their Notice of Removal indicating
that their sole basis for removal was federal question jurisdiction. After
Plaintiff voluntarily dismissed all her claims against the Newton County
Defendants, as well as her § 1983 claim against NaphCare, her only remaining
claim was state-law negligence against NaphCare. The Court then remanded
this case because it determined it lacked diversity jurisdiction, as Plaintiff
alleged that NaphCare was a Georgia corporation in her Complaint. NaphCare
moves for reconsideration, however, arguing that it is an Alabama corporation,
and therefore the Court retains diversity jurisdiction. Indeed, NaphCare pointed
out in its Answer that it is an Alabama corporation. (Dkt. [2] ¶ 9.) Plaintiff did
not file a response to NaphCare’s motion, and thus NaphCare’s motion is
deemed unopposed. See LR 7.1B (“Failure to file a response shall indicate that
there is no opposition to the motion.”). Because the Court finds a basis for
diversity jurisdiction in the record, and given the lack of opposition to the
motion, the Court GRANTS Defendant NaphCare’s Motion for
Reconsideration [18] and hereby VACATES the portion of its Order [15]
remanding the case to the State Court of Fulton County. The Court next
considers NaphCare’s previously submitted Motion to Dismiss.
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II.

Motion to Dismiss
A.

Standard

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
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. See Iqbal, 556 U.S. at 678. “Threadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. Furthermore, the court does not “accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555.
B.

Analysis

As the Court already dismissed the Eighth Amendment claims against
NaphCare, the Court turns to NaphCare’s arguments related to the medical
negligence claim under state law. Defendant asserts that (1) Plaintiff failed to
comply with O.C.G.A. § 9-11-9.1; (2) pain and suffering by a stillborn child is
not a recognized claim; (3) the Court should strike Plaintiff’s reference to
“homicide”; (4) the Court should strike Plaintiff’s negligence per se claim; and
(5) Plaintiff fails to state a claim for punitive damages. Plaintiff failed to
respond to NaphCare’s arguments; thus, Defendant’s arguments are deemed
unopposed. See LR 7.1B.
Defendant first argues that Plaintiff failed to comply with O.C.G.A. § 911-9.1's pleading requirement that a plaintiff asserting professional negligence
file along with her complaint an affidavit from a competent expert setting forth
his or her qualifications and opinions as to at least one negligent act or omission
of each professional defendant. While Plaintiff did attach an affidavit from a
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doctor to her Complaint, Defendant argues that the affidavit is insufficient
under the statute. Even if the affidavit were insufficient, however, Defendant’s
argument fails. In federal courts, “state law governs substantive issues, . . .
while federal law governs pleading requirements.” Brown v. Nichols, 8 F.3d
770, 773 (11th Cir. 1993) (citations omitted). This Court has previously held
that O.C.G.A. § 9-11-9.1 does not apply in federal courts because it is a
procedural obligation, not substantive state law. See Baird v. Celis, 41 F. Supp.
2d 1358, 1362 (N.D. Ga. 1999) (holding “that O.C.G.A. § 9-11-9.1, requiring
an expert affidavit to be filed with a complaint for professional malpractice, is
in direct conflict with Federal Rule of Civil Procedure 8(a) which requires only
notice pleading”); Zurich Am. Ins. Co. v. Sheffer Eng’g Co., No. 1:09-cv-666RWS, 2011 WL 344095, at *4 (N.D. Ga. Jan. 31, 2011) (“[T]his Court has
consistently held that O.C.G.A. § 9-11-9.1 does not apply in federal court.”).
Accordingly, any defect in the affidavit does not defeat Plaintiff’s negligence
claim.
Second, Defendant argues that Plaintiff may not recover for her child’s
pain or suffering because Georgia law does not recognize such a right for
stillborn children. Defendant is correct, but not for the reasons it argues.
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Defendant advances two arguments on this issue: (1) Plaintiff fails to plead that
her fetus was viable, so she cannot recover for its pain and suffering; and (2)
claims for pain and suffering belong to the decedent’s estate and must be
brought by the estate’s administrator, whereas a wrongful death claim may be
brought by the decedent’s survivor and next of kin. Because Plaintiff does not
sue as the administrator of the decedent’s estate, Defendant asserts that she
cannot recover for pain and suffering.
At the outset the Court notes that “[a] wrongful death action for the death
of a child under O.C.G.A. §§ 51-4-4 and 19-7-1 is separate and distinct from a
survival action for pain and suffering of a child under O.C.G.A. § 51-4-5(b) and
9-2-41.” Blackstone v. Blackstone, 639 S.E.2d 369, 371 n.5 (Ga. Ct. App.
2006). In wrongful death actions concerning the death of a child before birth,
“Georgia has historically adhered to the concept of ‘quickening.’ ” Citron v.
Ghaffari, 542 S.E.2d 555, 556 (Ga. Ct. App. 2000). “The concept of
‘quickening’ is defined as that point in time when the fetus ‘is able to move in
its mother’s womb.’ ” Shirley v. Bacon, 267 S.E.2d 809, 811 (Ga. Ct. App.
1980) (quoting Porter v. Lassiter, 87 S.E.2d 100, 103 (Ga. Ct. App. 1955)). At

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that point, Georgia law recognizes an action for wrongful death of a fetus.2 The
concept of quickening is distinguished from the concept of viability, which is
defined as the point when a “fetus is ‘capable of independent existence outside
his or her mother’s womb, . . . even if only in an incubator.” Citron, 542 S.E.2d
at 556 n.1 (quoting BLACK’S LAW DICTIONARY 1566 (6th ed. 1990)).
However, quickening only applies to wrongful death claims. Defendant
only challenges Plaintiff’s claim for the unborn child’s pain and suffering. To
recover for prenatal pain and suffering, the child must be born alive. In Peters
v. Hospital Authority of Elbert County, the Georgia Supreme Court considered
whether “a stillborn child [has] a right to recover for injuries sustained while
inside the womb.” 458 S.E.2d 628, 629 (Ga. 1995). The court first observed
that “O.C.G.A. § 51-1-9 authorizes ‘[e]very person’ against whom a tort is
committed to recover therefor, and O.C.G.A. § 9-2-41 provides that a cause of
action for the recovery of damages for personal injury is not abated by the death
of a party.” Id. The court further explained:

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See also Citron, 542 S.E.2d at 556 n.1 (“Georgia appears to be unique in
its adherence to the concept of quickening. The majority of jurisdictions that
recognize a cause of action for wrongful death of a fetus limits such actions to
claims arising after the fetus is viable.”).
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It has been recognized that the parent of a stillborn child is
statutorily entitled to recover the full value of the life of the
stillborn, but no Georgia appellate court has ever held that the
stillborn child has a cause of action against the tortfeasor who
allegedly caused the stillborn delivery. In order for the stillborn to
have a cause of action, ‘person,’ as used in O.C.G.A. § 51-1-9,
must be construed to include the unborn. This we decline to do, as
we are reluctant to accord legal rights to the unborn without
conditioning those rights upon live birth. Given the opportunity
today, we expressly hold that the fetal victim of a tort must be born
alive in order to seek recovery from the alleged tortfeasor pursuant
to O.C.G.A. § 51-1-9.
Id. at 629-30. Claims for pain and suffering vest in the administrator of an
estate, see Blackstone, 639 S.E.2d at 371 n.5. However, here it matters not
whether Plaintiff sues as next of kin or as administrator because the child was
not born alive. Consequently, under Georgia law the child’s estate has no cause
of action for pain and suffering. NaphCare’s Motion to Dismiss [4] is thus
GRANTED as to Plaintiff’s claim for her stillborn child’s damages for pain and
suffering.
Next, Defendant argues that the Court should strike any references to
“homicide” in Plaintiff’s Complaint as an attempt to invoke prejudicial and
inflammatory language. Plaintiff cites the Wrongful Death Act in her reference
to homicide, where the term is defined as “all cases in which the death of a

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human being results from a crime, from criminal or other negligence, or from
property which has been defectively manufactured, whether or not as the result
of negligence.” O.C.G.A. § 51-4-1. Moreover, the statute permits “[t]he right
to recover for the homicide of a child as provided in Code Section 19-7-1.”
O.C.G.A. § 51-4-4. Plaintiff therefore tracks the language of the statute
creating her cause of action, and the Court DENIES Defendant’s request to
strike.
Defendant also moves to dismiss any claim for negligence per se.
“Georgia law allows the adoption of a statute as a standard of conduct so that its
violation becomes negligence per se.” Brown v. Belinfante, 557 S.E.2d 399,
403 (Ga. Ct. App. 2001). Here, Plaintiff alleges that NaphCare committed
professional negligence but does not allege any statute established an applicable
standard of care. Thus, professional negligence is the appropriate theory under
which to consider Plaintiff’s claim, not negligence per se. To the extent
Plaintiff asserts that NaphCare breached a duty imposed by O.C.G.A. § 42-5-2,
which provides that “it shall be the responsibility of the governmental unit,
subdivision, or agency having physical custody of an inmate to maintain the
inmate, furnishing him food, clothing, and any medical and hospital attention,”
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that statute imposes a duty on Newton County, not NaphCare. Besides, this
duty only requires the county “merely to provide inmates with access to medical
care. What is considered proper medical care, however, is not addressed by the
[statute].” Kimbell v. Clayton County, Ga., No. 1:03-CV-2910-JEC, 2005 WL
7861525, at *16 (N.D. Ga. Sept. 27, 2005) (quoting Epps v. Gwinnett County,
499 S.E.2d 657, 663 (1998)). Therefore, NaphCare’s Motion to Dismiss is
GRANTED on Plaintiff’s negligence per se claim.
Finally, NaphCare moves to dismiss Plaintiff’s claim for punitive
damages, arguing that Plaintiff fails to plead any facts that would support such
an award. Under Georgia law, punitive damages “are awardable ‘solely to
punish, penalize, or deter a defendant.’ ” Banks v. ICI Ams., Inc., 469 S.E.2d
171, 174 (Ga. 1996) (quoting O.C.G.A. § 51-12-5.1(c)). A plaintiff must prove
“by clear and convincing evidence that the defendant’s actions showed willful
misconduct, malice, fraud, wantonness, oppression, or that entire want of care
which would raise the presumption of conscious indifference to consequences.”
O.C.G.A. § 51-12-5.1(b). Plaintiff alleges that Defendants deliberately refused
to give her medical treatment for several days, and she alleges facts that,
construed in her favor, support this allegation. Accordingly, Plaintiff plausibly
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alleges that Defendants acted with conscious indifference to consequences, and
Defendant’s Motion to Dismiss is DENIED as to punitive damages.
Conclusion
For the foregoing reasons, Defendant NaphCare’s Motion for
Reconsideration [18] is GRANTED, and the Court hereby VACATES the
portion of its June 11, 2014 Order [15] remanding the case to the State Court of
Fulton County. The portion of the Order [15] dismissing all claims except the
state law medical negligence claim against Defendant Naphcare remains in
effect. The Clerk is DIRECTED TO REOPEN the case against Defendant
Naphcare. Further, Defendant NaphCare’s Motion to Dismiss [4] is
GRANTED in part and DENIED in part. It is GRANTED as to Plaintiff’s
claim for her stillborn child’s damages for pain and suffering and her claim for
negligence per se. It is DENIED as to all other claims.
The Court having ruled on the merits of the pending Motions to Dismiss
[4, 6], the Stay [9] entered by the Court on April 30, 2014, is hereby LIFTED,
and the Parties shall proceed with discovery.

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SO ORDERED, this 5th day of January, 2015.

________________________________
RICHARD W. STORY
United States District Judge

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