Rogers et al v. Indiana Supreme Court et al

Filing 66

OPINION AND ORDER: GRANTING 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant John Whiteleather, Jr. Signed by Chief Judge Theresa L Springmann on 5/17/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
DEXTER ROGERS, Individually and as )
Personal Representative of the
)
ESTATE OF CARRIE BELL ROGERS
)
and as Personal Representative of the
)
ESTATE OF PREMIUS ROGERS,
)
)
Plaintiff,
)
)
v.
)
)
INDIANA SUPREME COURT,
)
JUSTICE LORETTA H. RUSH,
)
JUSTICE ROBERT D. RUCKER,
)
JUSTICE STEPHEN H. DAVID,
)
JUSTICE MARK MASSA
)
JUSTICE GEOFFREY G. SLAUGHTER )
PARKVIEW HOSPITAL INC.,
)
JOHN WHITELEATHER, JR.,
)
)
Defendants.
)

CAUSE NO.: 1:16-CV-364-TLS

OPINION AND ORDER
This matter is before the Court on a Motion to Dismiss [ECF No. 28], filed by Defendant
John Whiteleather, Jr. The pro se Plaintiff, Dexter Rogers, Individually and as Personal
Representative of the Estate of Carrie Bell Rogers, and as Personal Representative of the Estate
of Premius Rogers, filed his Complaint [ECF No. 1] on October 17, 2016, against Parkview
Hospital, Inc. (Parkview), a defendant in an underlying medical malpractice claim filed in the
Allen County Superior Court, Whiteleather, chairman of the medical review panel in the
underlying proceeding, and all five justices of the Indiana Supreme Court, where the Plaintiff
pursued a motion to transfer in the underlying proceeding that was denied. The Plaintiff’s
Complaint invokes Title VI of the Civil Rights Act of 1962, 42 U.S.C. § 2000d et seq. as the
grounds for relief. The statute provides that “[n]o person in the United States shall, on the ground

of race, color, or national origin, be excluded from participation in, be denied the benefits of, or
be subject to discrimination under any program or activity receiving Federal financial
assistance.” 42 U.S.C. § 2000d.
For the reasons stated in this Opinion and Order, the Court finds that the Plaintiff’s
claims against Whiteleather are barred because of the Rooker-Feldman doctrine, Whiteleather is
absolutely immune, and the Complaint does not state a claim upon which relief can be granted.

STANDARD OF REVIEW
“To survive a motion to dismiss under Rule 12(b)(6), a complaint must ‘state a claim to
relief that is plausible on its face.’” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir.
2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although pro se
complaints are to be liberally construed and held to a less stringent standard than pleadings
drafted by lawyers, Luevano v. Wal–Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013), the
factual allegations in the complaint must be enough to raise a right to relief above a speculative
level, Twombly, 550 U.S. at 555. Rule 12(b) requires that a court treat motions to dismiss as one
for summary judgment under Rule 56 when “matters outside the pleadings are presented to and
not excluded by the court.” Fed. R. Civ. P. 12(b). Despite the language of Rule 12(b), the court
may also take judicial notice of matters of public record without converting a Rule 12(b)(6)
motion into a motion for summary judgment. Henson v. CSC Credit Servs., 29 F.3d 280, 284
(7th Cir. 1994) (citing United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991)). A court may
also consider facts alleged in a pro se plaintiff’s brief in opposition to a motion to dismiss when
considering the sufficiency of the complaint, as long as the facts are “consistent with the
allegations in the complaint.” Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015); Gutierrez v.
Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997).
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COMPLAINT ALLEGATIONS
The Plaintiff’s mother, Carrie Bell Rogers, was a patient at Parkview and died on August
23, 2011. (Comp. ¶ 9; ECF No. 1.) The Plaintiff filed a claim with the Indiana Department of
Insurance, as required by Indiana’s Medical Malpractice Act, on June 25, 2013. (Id. ¶ 10.) The
Plaintiff claims that Parkview was negligent in its care of his mother, resulting in her death. The
Plaintiff also alleges that Parkview violated Title VI when Parkview allegedly denied care and
treatment to his mother while she was a patient of the hospital. The Plaintiff alleges that the care
his mother received was inferior to the care that white patients in similar circumstances received.
(Id.)
A discovery dispute arose between the Plaintiff and Parkview in the state court
proceedings, which led the Plaintiff to file a motion to compel. (Id. ¶ 10–12.) The Allen County
Superior Court granted the Plaintiff’s motion and ordered Parkview to produce certain
documents and make available its CEO, Michael Packnett, for a discovery deposition. (Id. Ex.
A 88–89.) Parkview did not produce its CEO, incurred sanctions, and then appealed the Allen
County Superior Court’s decision to the Indiana Court of Appeals. (Id. ¶ 13.)
The Indiana Court of Appeals reversed the Allen Superior Court’s decision and found
that the Plaintiff’s requested discovery deposition was outside the scope of Indiana Trial
Rule 26.1 (Id.) The Plaintiff claims that the Defendant failed to justify its refusal to produce its
CEO for a deposition. The Plaintiff also claims that the Court of Appeal’s decision was
erroneous and violated his due process rights. (Id. ¶ 34.)

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The Plaintiff has also filed a suit against various judges of the Allen County Superior Court and Parkview
Hospital, Inc. That case was dismissed on March 27, 2017 (1:16-CV-40-TLS-SLC).

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The Plaintiff then filed a petition to transfer, which the Indiana Supreme Court denied.
(Id. ¶¶ 13, 34.) The Plaintiff alleges that the Indiana Supreme Court should have granted his
petition to transfer, and that its failure to do so violated the Plaintiff’s due process rights.
(Id. ¶ 34.) After the Indiana Supreme Court denied the transfer, counsel for Parkview contacted
Whiteleather, whom the parties had selected as chairman of the medical review panel that was to
review the Plaintiff’s claim, and asked him to set a schedule for evidentiary submissions to the
medical review panel. (Id. ¶ 46.) The Plaintiff claims he was not ready to proceed to the panel
based on the Court of Appeals’ decision holding that the Plaintiff was not entitled to the
discovery he sought. (Id. ¶¶ 48–49.) The Plaintiff claims that Whiteleather attempted to move the
panel proceedings forward because the Plaintiff is African-American and Parkview’s counsel in
the state court proceedings is white. (Id. ¶ 49.)
The Plaintiff asks the Court to issue a judgment declaring that the acts of the Defendants
were unlawful and unconstitutional, award him damages, restrain the Defendants from violating
the Plaintiff’s constitutional rights, and issue a preliminary injunction. (Id. 21.)

ANALYSIS
First, the Court sua sponte will determine whether the Plaintiff’s claims are barred by the
Rooker-Feldman doctrine. Under the doctrine, this Court does not have jurisdiction to review or
reverse orders issued in state court or state administrative proceedings. See Gilbert v. Ill. Bd. of
Educ., 591 F.3d 896, 900 (7th Cir. 2010); Lewis v. Anderson, 308 F.3d 768, 771–72 (7th Cir.
2002). In essence, the Rooker-Feldman doctrine “prevents a state-court loser from bringing suit
in federal court in order to effectively set aside the state-court judgment.” Gilbert, 591 F.3d at
900. The doctrine applies “even though the state court judgment might be erroneous or even
unconstitutional.” Id. “[A] plaintiff may not seek a reversal of a state court judgment simply by
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casting his complaint in the form of a civil rights action.” Ritter v. Ross, 992 F.2d 750, 754 (7th
Cir. 1993). A federal court is free to entertain claims that are independent of any state court
proceedings. Gilbert, 591 F.3d at 900.
The Plaintiff asserts this Court has jurisdiction by generally invoking Article III of the
Constitution. But the Court cannot discern any independent claims from the Plaintiff’s
Complaint—at least not any that give fair notice of what the claim is and the grounds upon
which it rests—that would provide a jurisdictional basis independent of redressing the outcome
of the state court proceedings. “There is no recognized civil cause of action for the failure or
refusal of a party to provide discovery.” Marozsan v. United States, 849 F. Supp. 617, 645 (N.D.
Ind. 1994). Accordingly, because the Plaintiff’s claims are barred under the Rooker-Feldman
doctrine, the Court dismisses the claims against Whiteleather.
Even if the Plaintiff’s claims were not barred under the Rooker-Feldman doctrine, the
Plaintiff’s claims are barred under the Indiana Medical Malpractice Act. The Indiana Medical
Malpractice Act provides for the establishment of medical review panels to review proposed
medical malpractice complaints against health care providers. Ind. Code § 34-18-10-1. Each
panel is comprised of four members—three health care providers and one attorney, who serves
as chairman of the panel. Ind. Code § 34-18-10-3(a). The chairman of the panel “expedite[s] the
selection of other panel members, convene[s] the panel, and expedite[s] the panel’s review of the
proposed complaint.” Ind. Code § 34-18-10-3(c). The chairman may also “establish a reasonable
schedule for submission of evidence to the medical review panel but must allow sufficient time
for the parties to make full and adequate presentation of related facts and authorities.” Id.
Additionally, the chairman “shall advise the panel relative to any legal question involved in the
review proceeding and shall prepare the opinion of the panel.” Ind. Code § 34-18-10-19.

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As chairman of the medical review panel, Whiteleather is immune from civil liability for
his actions in the course and scope of his duties under the Medical Malpractice Act, which
provides all panelists with absolute immunity from civil liability for “all communications,
findings, opinions, and conclusions” made in the course and scope of their duties. Ind. Code §
34-18-10-24. In Count Five of his Complaint, the Plaintiff alleges that Whiteleather deprived the
Plaintiff of his rights to discovery and sought to advance the panel proceedings because of the
Plaintiff’s race. The Plaintiff’s claims against Whiteleather concern communications
Whiteleather made in the scope of his duties as chairman and panelist. All of Whiteleather’s
actions fall within the scope of his statutory duties as chairman of the panel. The Plaintiff’s
Complaint acknowledges Whiteleather had communications with the Plaintiff and counsel for
Parkview before setting a deadline for evidentiary submissions, and further communications with
the Plaintiff explaining the statutory requirements for the Plaintiff’s timely participation in panel
selection. Accordingly, Whiteleather is absolutely immune from the Plaintiff’s claims against
him pursuant to the immunity provision of the Indiana Medical Malpractice Act.
Lastly, the Plaintiff’s claims are also barred because the Plaintiff has not sufficiently pled
his Complaint.2 The Plaintiff has brought the Complaint under Title VI, which provides in
relevant part that no person shall, “on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity” covered by Title VI. See 42 U.S.C. § 2000d. Title VI “prohibits only
intentional discrimination.” Alexander v. Sandoval, 532 U.S. 275, 280 (2001). To establish the
elements of a prima facie case under Title VI, “a complaining party must demonstrate that [his]

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Whiteleather also argues that the medical review panel is not a “program or activity” under Title
VI, and therefore the Plaintiff did not properly assert a cognizable claim against him. Because the Court is
dismissing the Complaint on multiple grounds, the Court declines to address this argument.

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race, color, or national origin was the motive for the discriminatory conduct.” C.S. v. Couch, 843
F. Supp. 2d 894, 915 (N.D. Ind. 2011) (quoting Thompson v. Bd. of the Special Sch. Dist. No. 1,
144 F.3d 574, 581 (8th Cir. 1998)).
The Plaintiff alleges that Whiteleather sought to advance the panel proceedings because
the Plaintiff is African American and counsel for Parkview is white. The Complaint must
“contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on
its face.” Kolbe & Kolbe Health & Wealthfare Benefit Plan v. Med. Coll. of Wis. Inc., 657 F.3d
496, 502 (7th Cir. 2011). But, even with the relaxed standards that apply to pro se litigants, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Complaint does not set forth factual allegations
that raise the Plaintiff’s right to relief above the speculative level. The Plaintiff’s allegations that
Whiteleather had discriminatory intent when he acted are insufficient. “The complaint needs to
allege some facts tending to support a plausible inference” that Parkview acted with a
discriminatory intent. McReynolds v. Merrill Lynch, 694 F.3d 873, 887 (7th Cir. 2012).
Accordingly, the Court finds that the Plaintiff’s claims against Whiteleather are barred
because of the Rooker-Feldman doctrine, Whiteleather is absolutely immune, and the Complaint
does not state a claim upon which relief can be granted.

CONCLUSION
For the reasons stated above, the Court GRANTS Defendant John Whiteleather, Jr.’s
Motion to Dismiss [ECF No. 28].

SO ORDERED on May 17, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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