Jester v. Correctional Medical Services et al
Filing
45
OPINION AND ORDER DENYING 41 Motion to Dismiss for Lack of Jurisdiction filed by Defendant Zimont. Signed by Judge Rudy Lozano on 11/29/2011. (kjm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TIMOTHY JESTER,
Plaintiff,
v.
DR. ZIMONT, et al.
Defendants.
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NO. 1:11-CV-14
OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss for
Lack of Jurisdiction, filed by Defendant, Dr. Zimont, on August 10,
2011. For the reasons set forth below, the motion is DENIED.
BACKGROUND
The following facts are based on the allegations contained in
the complaint, which this Court accepts as true at this stage in
the litigation.
Plaintiff, Timothy Jester (“Jester”), was incarcerated in the
Pendleton Correctional Facility/f/k/a Indiana State Reformatory,
Indiana Department of Corrections (“Pendleton”) from August 2009
through 2010.
(Complaint, ¶ 1)
Dr. Zimont is an employee of
Correctional Medical Services (“CMS”) which is under contract with
the State of Indiana to provide health care services to persons
incarcerated at Pendleton.
(Id., at ¶ 2)
On or about August 4, 2009, Jester fell while in the shower
and injured his right hand which resulted in swelling.
4)
(Id., at ¶
Two days later Jester received x-rays and met with Dr. Mihalo
who determined that Jester’s right hand was fractured. (Complaint,
Ex. A, Notice of Tort Claim, ¶ 5; Complaint, Ex. B, Am. Notice of
Tort
Claim)
At
this
meeting
Dr.
Mihalo
also
ordered
pain
medication for Jester, that a splint or cast be put on his hand,
and therapy.
(Complaint, ¶ 4; Notice of Tort Claim, ¶ 5; Am.
Notice of Tort Claim)
Approximately two weeks went by before Jester was called to
nursing
to
have
a
personalized
splint
made
for
his
hand.
(Complaint, ¶ 4; Notice of Tort Claim, ¶ 5; Am. Notice of Tort
Claim)
When he arrived at nursing, Jester was treated by Dr.
Zimont who made him the splint for his hand.
(Complaint, ¶ 4;
Notice of Tort Claim ¶ 5; Am. Notice of Tort Claim)
Rather than
custom make the splint to fit Jester’s hand, Dr. Zimont made the
splint to fit his own hand.
(Complaint, ¶ 4; Notice of Tort Claim,
¶ 5; Am. Notice of Tort Claim)
As a result, the splint did not
properly fit Jester’s hand and bone structure.
Notice
of
Tort
Claim
¶
5;
Am.
Notice
of
(Complaint ¶ 5;
Tort
Claim)
For
approximately two weeks Jester suffered from severe distress and
intense pain while wearing the splint and his hand had become
malformed as a result of improper setting. (Complaint, ¶¶ 4,6)
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Jester was subsequently taken to Wishard Hospital on August 31,
2009.
(Notice of Tort Claim, ¶ 5; Am. Notice of Tort Claim)
While at Wishard Hospital, Jester met with three different
doctors who each determined that his hand could not be fixed
through surgery, and that his hand would never function properly
again. (Complaint, ¶ 4; Notice of Tort Claim, ¶ 5; Am. Notice of
Tort Claim)
The reason given by all three doctors was that the
splint Jester had been wearing caused his hand to heal incorrectly
because it did not fit or put pressure on the proper areas of his
hand.
(Notice of Tort Claim, ¶ 5; Am. Notice of Tort Claim)
The
doctors ordered therapy and prescribed pain medication for Jester.
(Notice of Tort Claim, ¶ 5; Am. Notice of Tort Claim)
Upon
returning to Pendleton, Dr. Zimont stopped the pain medication that
the other doctors had prescribed for
Jester.
(Complaint, ¶¶ 2,6;
Notice of Tort Claim, ¶ 5; Am. Notice of Tort Claim)
DISCUSSION
In the motion to dismiss, Dr. Zimont asserts that Jester’s
section 1983 claim sounds in medical malpractice and that Jester
has failed to comply with the procedural requirements of Indiana’s
Medical Malpractice Act.
Therefore, Dr. Zimont contends that
Jester’s complaint against him should be dismissed for lack of
subject-matter
jurisdiction
pursuant
Federal Rules of Civil Procedure.
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to
Rule
12(b)(1)
of
the
Rule 12(b)(1) Legal Standard
Federal Rule of Civil Procedure 12(b)(1) allows a complaint to
be dismissed for “lack of subject-matter jurisdiction.”
Because
federal courts have limited jurisdiction, they are not permitted to
hear cases for which they do not have a statutory grant of
jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 377 (1994); Internat’l Union of Operating Eng’rs, Local
150, AFL-CIO v. Ward, 563 F.3d 276, 280 (7th Cir. 2009), cert.
denied by 130 S.Ct. 442 (Oct. 13, 2009).
There are two basic statutory grants of jurisdiction for
federal courts, which are codified at 28 U.S.C. §§ 1331 and 1332.
Section 1331 grants the federal courts subject-matter jurisdiction
over
“[f]ederal-question[s].”
“A
plaintiff
properly
invokes
federal question jurisdiction when she pleads a colorable claim
arising under the Constitution or laws of the United States.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (internal quotations
omitted).
The subject-matter “jurisdiction of the federal courts is not
defeated by the possibility that the averments in the plaintiff’s
complaint might fail to state a cause of action on which the
plaintiff could actually recover.” Bell v. Hood, 327 U.S. 678, 685
(1946); Jogi v. Voges, 480 F.3d 822, 826 (7th Cir. 2007). However,
federal courts will not have subject-matter jurisdiction over a
plaintiff’s claim in limited circumstances where the claim “clearly
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appears to be immaterial and made solely for the purpose of
obtaining
jurisdiction
or
where
insubstantial and frivolous.”
such
a
claim
is
wholly
Bell, 327 U.S. at 682-83; Carr v.
Tillery, 591 F.3d 909, 917 (7th Cir. 2010); Jogi, 480 F.3d at 826.
A claim is utterly frivolous when it is clear beyond any
reasonable doubt that it does not belong in federal court.
591 F.3d at 917.
Carr,
That being said, there is a presumption that the
dismissal of even a weak case should be on the merits and not
because it was too weak to invoke the subject-matter jurisdiction
of the federal courts.
Id.; Travelers Casualty & Surety Co. of
Am., Inc. V. Northwestern Mutual Life Ins. Co., 480 F.3d 499, 501
(7th Cir. 2007). Moreover, the exhaustion of state remedies is not
required
before
a
federal
court
can
obtain
subject-matter
jurisdiction over claims brought under section 1983.
Jones v.
Bock, 549 U.S. 199, 200 (2007); Patsy v. Bd. of Regents of State of
Fla., 457 U.S. 496, 516 (1982).
Turning to the instant motion, Jester brought his claim
against Dr. Zimont pursuant to section 1983 in order to vindicate
an alleged violation of his Eighth Amendment right to be free from
cruel and unusual punishment.
In his complaint, Jester referenced
specific conduct allegedly undertaken by Dr. Zimont which is
believed to have resulted in deficient medical care and treatment
for Jester’s fractured hand.
Jester alleges that this conduct
rises to the level of cruel and unusual punishment.
-5-
Accordingly,
Jester has plead a colorable claim that arises under the U.S.
Constitution and laws of the United States.
Dr. Zimont’s assertion that Jester’s section 1983 claim sounds
in medical malpractice and that Jester’s failure to comply with the
requirements of Indiana’s Medical Malpractice Act strips this Court
of subject-matter jurisdiction is unfounded.
As an initial matter, Jester was not required to exhaust state
administrative remedies prior to bringing his claim under section
1983.
Jones, 549 U.S. 200.
Moreover, Dr. Zimont has seemingly
overlooked the basic proposition that the same set of facts can
give rise to multiple causes of action under both federal and state
law. Had Jester chosen to file his complaint against Dr. Zimont in
Indiana state court asserting a claim
would
be
bound
by
the
procedural
Indiana’s Medical Malpractice Act.
of medical malpractice he
requirements
set
forth
in
However, Jester made the
decision to pursue a claim against Dr. Zimont under federal law,
not Indiana law.
As such, federal law and procedure govern his
claim.
Additionally, Dr. Zimont’s assertion that Jester’s claim
should be dismissed because the alleged conduct of Dr. Zimont does
not rise to the level of “deliberate indifference” is unpersuasive.
In order for a prisoner to prevail on an Eighth Amendment claim for
cruel and unusual punishment based on deficient medical care the
following two elements must be proven: 1) the prisoner had an
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objectively serious medical condition; and 2) a prison official’s
deliberate indifference to that condition.
Estelle v. Gamble, 429
U.S. 97, 104 (1976); Roe v. Elyea, 631 F.3d 843, 855 (7th Cir.
2011).
The question of whether Dr. Zimont’s alleged conduct rises to
the level of “deliberate indifference” goes to the merits of
Jester’s claim and is not a proper consideration for this Court in
ruling
on
a
jurisdiction.
motion
to
dismiss
for
lack
of
subject-matter
See Haury v. Lemmon, 656 F.3d 521, 522 (7th Cir.
2011)(noting that “a dismissal for lack fo jurisdiction is not the
same as a dismissal for failure to state a claim.”).
At this stage
of the litigation, had Dr. Zimont wanted this Court to inquire into
Jester’s ability to prevail on the merits of his claim, the
appropriate motion to file would have been a motion to dismiss for
failure to state a claim.
CONCLUSION
For the reasons set forth above, Dr. Zimont’s Motion to
Dismiss is DENIED.
DATED:
November 29, 2011
/s/RUDY LOZANO, Judge
United States District Court
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