Barnes v. Boyd

Filing 113

OPINION AND ORDER: The Court GRANTS Dr. Cooke's motion to dismiss 69 in part, DISMISSES Counts 5 and 6 of the third amended complaint as to Dr. Cooke, and DENIES the motion in all other respects. GRANTS IUHLP Liquidation's motion for ju dgment on the pleadings 87 to the extent the claims asserted under 42 U.S.C. § 1983 seek to hold IUHLP Liquidation vicariously liable for the acts or omissions of its employees, and DENIED the motion in all other respects. DENIES the motion to stay 80 as moot. Signed by Judge Robert L Miller, Jr on 4/10/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

JAMES BARNES, as Personal
Representative of the ESTATE OF
RACHEL A. BARNES, Deceased,
Plaintiff
v.
JOHN T. BOYD, Sheriff of LaPorte
County, Indiana, et al.,
Defendants

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CAUSE NO. 3:16-CV-190 RLM-MGG

OPINION AND ORDER
Three motions are ripe for ruling: Dr. Cooke’s motion to dismiss the third
amended complaint until a medical review panel has issued an opinion [Doc. No.
69]; Dr. Cooke’s alternative motion to stay proceedings until the review panel
opinion is issued (in which IUHLP Liquidation, Inc. joins) [Doc. No. 80]; and IUHLP
Liquidation’s renewed motion for judgment on the pleadings [Doc. No. 87]. For the
following reasons, Dr. Cooke’s motion to dismiss is granted as to Counts 5 and 6
of the complaint, and is denied as to the § 1983 claims raised in Counts 1-4; the
motion to stay is denied as moot; and IUHLP Liquidation’s Rule 12(c) motion is
granted in part and denied in part.

I. STANDARD OF REVIEW
The standard of review for a motion to dismiss under Fed. R. Civ. P. 12(b)(6)
and a motion for judgment on the pleadings under Rule 12(c) is the same – both
challenge the complaint’s sufficiency, not its underlying merits. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 570 (2007); Killingsworth v. HSBC Bank Nevada,
507 F.3d 614, 619 (7th Cir. 2007); Northern Ind. Gun & Outdoor Shows, Inc. v.
City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). The court construes the
complaint in the light most favorable to the nonmoving party, accepts all wellpleaded facts as true, and draws all reasonable inferences in the plaintiff’s favor.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Anicich v. Home Depot U.S.A., Inc.,
852 F.3d 643, 648 (7th Cir. 2017). Fed. R. Civ. P. 8(a)(2), however, “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation,”
Ashcroft v. Iqbal, 556 U.S. at 678, and legal conclusions aren’t entitled to any
presumption of truth.
II. DISCUSSION
1. Dr. Cooke’s Motion to Dismiss
Dr. Cooke moved to dismiss all claims against him (Counts 1-6) because Mr.
Barnes hasn’t completed the medical panel review process required under the
Indiana Medical Malpractice Act. The Act provides that: “an action against a
health care provider may not be commenced in a court in Indiana before: (1) the
claimant's proposed complaint has been presented to a medical review panel...
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and (2) an opinion is given by the panel.”1 IND. CODE. § 34-18-8-4. It “grants
subject matter jurisdiction over medical malpractice actions first to the medical
review panel, and then to the trial court.” H.D. v. BHC Meadows Hospital, Inc.,
884 N.E.2d 849,

853 (Ind. App. 2008). But the prohibition on court action

imposed by the Indiana legislature in IND. CODE. §§ 34-18-8-4 doesn't affect this
court's subject-matter jurisdiction over (or the federal pleading requirements with
respect to) the constitutional claims raised in Counts 1-4, see Tacket v. General
Motors Corp., 93 F.3d 332, 334 (7th Cir.1996); Estate of Rice ex rel. Rice v.
Correctional Medical Services, 596 F.Supp.2d 1208, 1225 (N.D. Ind. 2009), so the
court denies Dr. Cooke’s motion to dismiss those claims.
The claims asserted against Dr. Cooke in Counts 5 and 6 are based on state
law, and so are subject to dismissal if they’re essentially a medical malpractice
claim – they’re “based on health care or professional services that were provided,
or that should have been provided, by a health care provider, to a patient”, see
IND. CODE. § 34-18-2-18 (defining malpractice) – and the medical review panel
hasn’t issued an opinion. See Estate of Rice ex rel. Rice v. Correctional Medical
Services, 596 F.Supp.2d at 1225; Hobson v. Dominguez, Cause No. 2:10-CV-429,

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IND.CODE § 34–18–8–7 “allows a claimant to commence a malpractice action at
the same time as the claimant's proposed complaint, but the complaint can't contain any
information that would allow a third party to identify the defendant; the claimant is
prohibited from pursuing the action; and the court is prohibited from taking any action
except setting a date for trial.” Estate of Rice ex rel. Rice v. Correctional Medical
Services, 596 F.Supp.2d 1208, 1225 (N.D. Ind. 2009). Section 7 isn’t applicable in this
case because Mr. Barnes didn’t file this lawsuit pursuant to that statute.

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2012 WL 4361537, at *10-12 (N.D. Ind. Sep. 24, 2012); Hubbard v. Columbia
Women’s Hospital of Indianapolis, Inc., 807 N.E.2d 45, 51-52 (Ind. App. 2004).
The complaint alleges that Dr. Cooke “is a licensed Indiana physician who,
via telephone only, provided medical services and advice regarding the decedent
Rachel Barnes during the time in question”; prescribed medications, “without ever
seeing [her]”; “failed to provide reasonable medical care for an individual going
through alcohol withdrawal”; and that his “wrongful acts” or omissions (“failure
to conduct an in-person medical examination” or to “follow up concerning her
condition”) caused her death, in violation of Indiana’s Wrongful Death Act (Count
5), and other unidentified state law (Count 6). [Doc. No. 82 at ¶ 23, 34, 66, 68, 89,
and 91]. Those allegations clearly fall within the definition of a malpractice action,
so Mr. Barnes had to comply with the requirements in the Medical Malpractice Act
before filing and/or pursuing the current action. He hasn’t done so.
Mr. Barnes filed a proposed medical malpractice complaint against Dr.
Cooke with the Indiana Department of Insurance on behalf of his daughter’s
estate, but the medical review panel hadn’t issued an opinion when this suit was
filed. In response to Dr. Cooke’s motion to dismiss, Mr. Barnes voluntarily
dismissed the proposed malpractice complaint before the review panel had issued
an opinion. But he can’t proceed with his state law claims against Dr. Cooke in
this court unless and until he’s complied with IND. CODE. § 34-18-8-4. The court
grants the motion to dismiss Counts 5 and 6 as to Dr. Cooke.
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2. IUHLP Liquidation’s Rule 12(c) Motion
In moving for judgment on the pleadings, IUHLP Liquidation contends that:
it isn’t a state actor and can’t be held liable for any of the constitutional violations
alleged in Counts 1-4 because it’s contract with the County to provide medical
services to inmates only applies to inpatient services and Ms. Barnes wasn’t
admitted to the hospital when the blood test was performed; it can’t be held
vicariously liable under 42 U.S.C. § 1983 for its employees’ isolated acts or
omissions; and the court should decline to exercise supplemental jurisdiction over
the state law claims asserted in Counts 5 and 7 after the federal claims are
dismissed.
Mr. Barnes alleges in the third amended complaint that IUHLP Liquidation
is directly and/or vicariously liable for Ms. Barnes’ death under federal and/or
state law because it willfully, wantonly, maliciously, recklessly and/or negligently:
(1) failed to contact the Sheriff’s Department and/or jail to
inform it that Ms. Barnes’ blood alcohol “exceeded .400", “was at a
dangerous and life-threatening level,” and “required medical
treatment” [Doc. No. 82 at ¶¶ 37, 41, 51, and 67];
(2) had a custom and practice of “simply leav[ing] lab results for
pick-up by the Sheriff’s Department and/or jail personnel, regardless
of whether the test results show a life-threatening level of alcohol in
an arrestee” [Doc. No. 82 at ¶ 69];
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(3) “failed to adopt a policy that required the Hospital and/or
Lab personnel to contact the Sheriff’s Department and/or the jail
when an arrestee’s blood alcohol levels are life-threatening” [Doc. No.
82 at ¶ 70]; and
(4) “failed to train personnel as to the procedures to be followed
when an arrestee’s blood alcohol tests over .400 and there is no one
to immediately pick-up or report the results to from the Jail.” [Doc.
No. 82 at ¶ 70].
To the extent the plaintiff seeks to hold IUHLP Liquidation liable for the actions
(or omissions) of its employees under § 1983 for failing to contact the Sheriff’s
Department and/or jail in a timely fashion, those claims are premised on vicarious
liability and cannot proceed. See Rodriguez v. Plymouth Ambulance Service, 577
F.3d 816, 822 (7th Cir 2009); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir.
2007).
But the complaint also asserts claims of direct liability premised on the
alleged custom and policy, a failure to enact policies and a failure to adequately
train its personnel. Those claims might be actionable under § 1983, if the plaintiff
can show that the constitutional deprivations were caused by an entity that was
acting under color of state law. Id. IUHLP Liquidation claims that it wasn’t so
acting, but its argument is premised on facts that aren’t contained in the third
amended complaint or supported by any documentation attached thereto, and
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can’t be considered on a motion to dismiss. Whether IUHLP Liquidations is a state
actor is a fact-intensive inquiry that requires the court to engage in a functional
inquiry, Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 797 (7th Cir. 2014);
Rodriquez v. Plymouth Ambulance Service, 577 F.3d at 826-27, and the third
amended complaint doesn’t provide enough facts to conduct such an inquiry. See,
i.e., Manzanales v. Krishna, 113 F.Supp.3d 972, 980 (N.D. Ill. 2015).
Accordingly, IUHLP Liquidation is entitled to judgment on the pleadings to
the extent plaintiff seeks to hold IUHLP Liquidation vicariously liable under § 1983
for the acts or omissions of its employees , but its motion must be denied in all
other respects.
3. The Motion to Stay
The court’s findings with respect to Dr. Cooke’s motion to dismiss make his
motion to stay moot, and the court agrees with Mr. Barnes that the dismissal of
his medical malpractice complaint before the Indiana Department of Insurance
moots the Hospital’s argument about the state claims and supplemental
jurisdiction. The court denies the motion to stay [Doc. No. 80].
III. CONCLUSIONS
For the foregoing reasons, the court:
(1) GRANTS Dr. Cooke’s motion to dismiss [Doc. No. 69] in part,
DISMISSES Counts 5 and 6 of the third amended complaint as to Dr.
Cooke, and DENIES the motion in all other respects.
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(2) GRANTS IUHLP Liquidation’s motion for judgment on the
pleadings [Doc. No. 87] to the extent the claims asserted under 42 U.S.C.
§ 1983 seek to hold IUHLP Liquidation vicariously liable for the acts or
omissions of its employees, and DENIED the motion in all other respects.
(3) DENIES the motion to stay [Doc. No. 80] as moot.
SO ORDERED.
ENTERED:

April 10, 2018

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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