Cox v. Grote
Filing
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MEMORANDUM AND ORDER sustaining in part 10 Motion for Judgment. The court dismisses Count I of the petition (Doc 1). The court otherwise overrules defendant's motion; overruling 16 Motion to Amend Complaint. Signed by District Judge Kathryn H. Vratil on 8/9/2018. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DUSTY JAMES COX,
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Plaintiff,
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v.
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STEWART GROTE, D.O.,
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Defendant.
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____________________________________________)
CIVIL ACTION
No. 17-2500-KHV
MEMORANDUM AND ORDER
Dusty James Cox, a former inmate at Corrections Corporation of America in Leavenworth,
Kansas, brings suit under state law and 42 U.S.C. § 1983 claiming that Stewart Grote, D.O.,
provided negligent medical treatment and subjected him to cruel and unusual punishment in
violation of the Eighth Amendment. This matter is before the Court on Defendant Stewart Grote,
D.O.’s Motion For Judgment On The Pleadings (Doc. #10) filed November 22, 2017 and
Plaintiff’s Motion To Amend Petition (Doc. #16) filed December 28, 2017. For reasons stated
below, the Court sustains in part defendant’s motion for judgment on the pleadings and overrules
plaintiff’s motion to amend.
Factual Background
Beginning in June of 2009, plaintiff was incarcerated at Corrections Corporation of
America in Leavenworth, Kansas (“CCA-Leavenworth”). Beginning in November of 2009, Dr.
Grote was plaintiff’s primary healthcare provider.
While at CCA-Leavenworth, plaintiff
developed a rash. On January 9, 2010, plaintiff transferred to Golden Valley Memorial Hospital
in Clinton, Missouri, where medical personnel diagnosed his rash as scabies. They successfully
treated plaintiff’s rash with permethrin cream.
In May of 2010, plaintiff returned to CCA-Leavenworth. Plaintiff showed Dr. Grote
medical records from Golden Valley which documented the successful treatment of his scabies
infection.
In July of 2010, plaintiff developed a rash that appeared identical to his rash in January of
2010. On July 13, 2010, plaintiff told Dr. Grote that he believed he had contracted scabies again.
Even so, Dr. Grote did not prescribe permitherin cream to plaintiff.
Plaintiff’s rash grew and worsened.
plaintiff.
On September 28, 2010, Dr. Grote examined
Dr. Grote again did not prescribe permitherin cream, but instead prescribed
mometasone, a corticosteroid.
Plaintiff’s rash persisted. On November 24, 2010, Dr. Grote examined plaintiff. Dr.
Grote offered a treatment of Lindane but never provided it. Instead, Dr. Grote continued plaintiff
on mometasone and added prednisone.
On February 10, 2011, plaintiff transferred from CCA-Leavenworth to a Bureau of Prisons
facility. Plaintiff continued taking mometasone and prednisone until a physician could examine
him at the new facility.
On March 10, 2011, Douglas Kruse, M.D. examined plaintiff. Dr. Kruse discontinued
mometasone, prescribed a taper dosage of prednisone to wean plaintiff off of the drug and
prescribed permetherin cream. After several treatments, plaintiff’s rash healed.
Plaintiff subsequently began to experience pain and loss of range of motion in his left
shoulder. On September 12, 2013, plaintiff was diagnosed with avascular necrosis in his left
shoulder.
On October 16, 2013, Gregory Daus, M.D. examined plaintiff. Dr. Daus told plaintiff that
the steroids which Dr. Grote prescribed had probably caused the necrosis. Plaintiff’s necrosis
continued to worsen with a total collapse of the humeral head. Dr. Daus told plaintiff that surgery
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was necessary. Dr. Daus advised plaintiff that he would not perform surgery, however, because
plaintiff had a methicillan-resistant staphylococcus infection and was on chronic suppressive
therapy for the infection.
On March 7, 2014, plaintiff was diagnosed with avascular necrosis in both hips. On
October 1, 2014, plaintiff was diagnosed with avascular necrosis in his right shoulder. Plaintiff
has and continues to suffer great pain, suffering and disability associated with avascular necrosis
in his shoulders and hips.
Plaintiff has filed three lawsuits related to Dr. Grote’s care. On December 13, 2011,
plaintiff filed suit against Dr. Grote and others related to his medical care in 2009 and 2010. See
Cox v. Cunningham et al., D. Kan. No. 11-3215-SAC (“Cox I”). In Cox I, plaintiff did not assert
claims involving medical care related to his scabies rash.1
On July 27, 2015, plaintiff filed suit against Dr. Grote related to his treatment of plaintiff’s
scabies rash in 2010 and 2011. See Civil Complaint (Doc. #1 filed in Cox v. Grote, D. Kan.
No. 15-3189-CM (“Cox II”)). Because plaintiff did not give notice of his lawsuit to the Kansas
Healthcare Stabilization Fund, he asked to dismiss his complaint without prejudice so that he could
file the required notice. See Plaintiff’s Motion To Dismiss (Doc. #45) filed July 21, 2017. On
August 8, 2017, the Honorable Carlos Murguia granted plaintiff’s request and dismissed the action
without prejudice. See Order (Doc. #47).
On August 30, 2017, plaintiff filed the instant action. See Petition (Doc. #1). Plaintiff
1
In Cox I, the Honorable Sam A. Crow dismissed plaintiff’s complaint for failure to
state a claim. See Order (Doc. #10 filed November 19, 2013 in D. Kan. No. 11-3215-SAC).
Plaintiff appealed. On April 11, 2014, the Tenth Circuit dismissed the appeal for lack of
prosecution. See Order (Doc. #19 filed in D. Kan. No. 11-3215-SAC).
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asserts that Dr. Grote provided inadequate medical care because he (1) failed to timely diagnose
and treat plaintiff’s scabies infection; (2) improperly prescribed and treated plaintiff with
prednisone; (3) failed to properly and adequately inform plaintiff of the risks of the high dosage or
long-term use of prednisone; (4) improperly prescribed long-term use of mometasone which
increased the amount of steroids administered to plaintiff and masked the scabies infection;
(5) failed to timely follow up with plaintiff to determine the effects of the prescribed treatments;
and (6) prescribed plaintiff steroids which were contraindicated for a person on chronic
suppressive therapy for a methicillan-resistant stachylococcus infection.
See id., Count I.
Plaintiff also asserts a claim of cruel and unusual punishment under 42 U.S.C. § 1983. See id.,
Count II.
Legal Standards
A motion for judgment on the pleadings under Rule 12(c), Fed. R. Civ. P., is governed by
the same standards as a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P. See Atl. Richfield
Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000); Mock v. T.G. & Y.
Stores Co., 971 F.2d 522, 528 (10th Cir. 1992). In ruling on a motion to dismiss for failure to
state a claim under Rule 12(b)(6), the Court assumes as true all well-pleaded factual allegations
and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual
matter to state a claim which is plausible – and not merely conceivable – on its face. Id.; Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The specific allegations in the complaint must
plausibly support a legal claim for relief. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).
Rather than deciding whether a claim is “improbable,” the Court determines whether the factual
allegations in the complaint sufficiently raise a right to relief above the speculative level. See id.
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(quoting Twombly, 550 U.S. at 556). In determining whether a complaint states a plausible claim
for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.
The Court need not accept as true those allegations which state only legal conclusions.
See id. Plaintiff bears the burden to frame his complaint with enough factual matter to suggest
that he is entitled to relief; it is not enough for plaintiff to make threadbare recitals of a cause of
action accompanied by mere conclusory statements. Twombly, 550 U.S. at 556. Plaintiff makes
a facially plausible claim when he pleads factual content from which the Court can reasonably
infer that defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiff must
show more than a sheer possibility that defendant has acted unlawfully – it is not enough to plead
facts that are “merely consistent with” defendant’s liability. Id. (quoting Twombly, 550 U.S. at
557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a
cause of action, or naked assertions devoid of further factual enhancement will not stand. Id.
Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere
possibility of misconduct, the complaint has alleged – but not “shown” – that the pleader is entitled
to relief. Id. at 679. Finally, the degree of specificity necessary to establish plausibility and fair
notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ.
P., depends upon the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
Analysis
I.
Medical Malpractice Claim (Count I)
Defendant argues that the Kansas statute of repose, K.S.A. § 60-513(c), bars plaintiff’s
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medical malpractice claim. 2 The Kansas limitations period for tort claims is two years. See
K.S.A. § 60-513(a)(4). Kansas has a general statute of repose of ten years for negligence actions,
but medical malpractice claims are subject to a four-year statute of repose. See K.S.A. § 60513(c) (no medical malpractice action shall be “commenced more than four years beyond the time
of the act giving rise to the cause of the action”).
Plaintiff alleges that Dr. Grote last treated him in February of 2011. Accordingly, under
the Kansas statute of repose, plaintiff had to file any medical malpractice claim action related to
such treatment by February of 2015. Plaintiff concedes that if applied, the Kansas statute of
repose would bar his claim. Plaintiff argues, however, that the statute of repose violates his rights
to equal protection under Section 1 of the Kansas Bill of Rights. See Kan. Const. Bill of Rights
§ 1 (all persons possessed of equal and inalienable natural rights including life, liberty and pursuit
of happiness).
The Kansas Supreme Court has rejected an equal protection challenge to the statute of
repose in K.S.A. § 60-513(c). Stephens v. Snyder Clinic, 230 Kan. 115, 631 P.2d 222 (1981). In
Stephens, plaintiff asserted that K.S.A. § 60-513(c) created an arbitrary and discrimination
classification for tort actions against healthcare providers and that such a classification lacked a
rational basis. Id. at 127, 631 P.2d at 233. The Kansas Supreme Court held that a reasonable
relation existed between the legislative objective of assuring continued quality health care in
Kansas and the 1976 amendment which shortened the statute of limitations to four years from the
date of the wrongful act. Id. at 115, Syl. ¶ 9, 631 P.2d at 224, Syl. ¶ 9. The Kansas Supreme
2
In diversity cases, the Court applies the statute of limitations which the forum courts
would apply to the claims. See, e.g., Miller v. Armstrong World Indus., Inc., 949 F.2d 1088, 1089
n.3 (10th Cir. 1991). The parties agree that Kansas law applies.
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Court concluded that “the legislature has the authority to set statutes of limitation, that the
classification of ‘health care providers’ for beneficial treatment is justified and reasonable, and
without constitutional infirmity.” Id. at 132, 631 P.2d at 236. In reaching this conclusion, the
Kansas Supreme Court summarized the history and purpose of the statute of repose for medical
providers as follows:
The 1976 amendment to K.S.A. 60-513 was the legislature’s attempt to assure
continued quality health care for Kansans by combating the rapidly rising cost of
medical malpractice insurance and the increasing reluctance of insurance
underwriters to underwrite medical professionals. One of the principal causes of
the increased costs and unavailability of medical malpractice insurance was
attributed to the “long tail,” or the length of time after the negligent conduct,
allowed for the discovery of the injury and the filing of suit thereon. Medical
malpractice insurance policies insure against liability arising from conduct while
the policy is in effect. Because of the “long tail,” or ten-year discovery period,
under the prior statute, premiums were being calculated to include the possibility
of claims on policies in effect up to ten years earlier. With the increased number
of medical malpractice claims being filed, underwriting malpractice policies
became unprofitable, with underwriters leaving the medical malpractice market.
As a result, it was feared that doctors would be unable to procure insurance, or
would be unwilling to pay exorbitant premiums, and would leave to practice outside
of this state. Reduction of the discovery period was considered to be the obvious
compromise to assure continued availability of malpractice insurance while
protecting the injured parties’ causes of action. The public interest in solving the
medical malpractice problem is discussed in depth in State ex rel. Schneider v.
Liggett, 223 Kan. 610, 576 P.2d 221. That discussion shows clearly that there is a
reasonable basis for dealing with malpractice actions against health care providers
in a different manner than in cases involving other tortfeasors.
Id. at 130-31, 631 P.2d at 234-35.
Plaintiff argues that Stephens does not bar his claim because the medical malpractice
insurance crisis that existed 40 years ago has passed. In particular, plaintiff asserts that Kansas
has no current need to curtail the “long tail” of medical malpractice claims because the Kansas
Healthcare Stabilization Fund now requires that all policies be issued on a claims-made basis.
Plaintiff’s Memorandum In Opposition (Doc. #15) at 2.
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Plaintiff ignores the fact that the
transition from occurrence to claims-made policies occurred as part of the creation of the Health
Care Stabilization Fund in 1976, well before the decision in Stephens. As part of its ruling on the
constitutionality of the statute of repose, the Kansas Supreme Court necessarily considered the
impact of claims-made policies on malpractice reform. See Stephens, 230 Kan. at 118-19, 631
P.2d at 226 (change in statute of repose part of “malpractice package” aimed at limiting liability
of healthcare professionals); see also State ex rel. Schneider v. Liggett, 223 Kan. 610, 611, 576
P.2d 221, 223-24 (1978) (1976 amendment required provider to carry coverage for “all claims
made” during annual period); Kansas Health Care Stabilization Fund, History of the Health Care
Provider Insurance Availability Act (important feature of 1976 version of Health Care Provider
Insurance Availability Act was requirement that carriers sell claims-made, rather than occurrence,
coverage), available at https://hcsf.kansas.gov/about/ (last accessed Aug. 1, 2018). Accordingly,
any purported easing of the medical malpractice crisis because of the transition from “occurrence”
to “claims-made” policies does not undermine the holding in Stephens.
Plaintiff also argues that the current cap on the recovery of non-economic damages
undermines the need for a shorter statute of repose for medical malpractice claims. See Plaintiff’s
Memorandum In Opposition (Doc. #15) at 3. In 1988, to further limit the cost of medical
malpractice insurance premiums, as a supplement to the original malpractice package, the Kansas
legislature imposed a cap on non-economic damages. Samsel v. Wheeler Transp. Servs., 246
Kan. 336, 340, 789 P.2d 541, 545 (1990). The fact that since Stephens, the Kansas legislature
implemented additional measures to help address the medical malpractice crisis does not
undermine the rationality of the legislative decision in 1976 that a four-year statute of repose for
claims against medical providers would help assure continued quality health care in Kansas.
Stephens, 230 Kan. at 130, 631 P.2d at 235 (reduction of discovery period obvious compromise to
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assure continued availability of malpractice insurance and quality care while protecting injured
parties’ causes of action); Liggett, 223 Kan. at 611, 576 P.2d at 224 (low medical malpractice
premiums necessary to ensure availability of medical service in all Kansas communities); see also
Brubaker v. Cavanaugh, 741 F.2d 318, 321 (10th Cir. 1984) (rejecting equal protection challenge
to Kansas statute of repose, agreeing with Stephens that rational relation exists between shorter
limitation period for health care providers and legitimate objective of providing quality health care;
plaintiff did not show legislature’s “studied choice” irrational); Marzolf v. Gilgore, 924 F. Supp.
127, 129-30 (D. Kan. 1996) (Saffels, J.) (rejecting due process challenge to statute of repose in
light of Stephens). Plaintiff has not satisfied his burden to show that the statutory classification
of medical providers in the Kansas statute of repose lacks a rational relationship to a valid
legislative purpose. Miller v. Johnson, 295 Kan. 636, 666, 289 P.3d 1098, 1119 (2012) (statutory
classification must bear “some rational relationship” to valid legislative purpose).
Even if the need to provide some protection to health care providers has changed somewhat
over the years, many courts continue to uphold statutes of repose specific to medical providers
against equal protection challenges. See, e.g., Ambers-Phillips v. SSM Depaul Health Ctr., 459
S.W.3d 901, 913 (Mo. 2015) (rejecting equal protection challenge to ten-year statute of repose,
statute reflected reasonable balance between rights of injured parties and policy concerns in
medical malpractice suits); Nichols v. Gross, 653 S.E.2d 747, 748-49 (Ga. 2007) (rejecting equal
protection challenge to five-year statute of repose, statute did not reflect irrational legislative
judgment); Fields v. Legacy Health Sys., 413 F.3d 943, 955 (9th Cir. 2005) (classifications in
Oregon statutes of limitations and repose rationally related to legitimate legislative ends of
avoiding stale claims and limiting costs of litigation and medical care).
In light of Stephens, the Court rejects plaintiff’s argument that the Kansas statute of repose
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for medical providers violates his rights to equal protection under the Kansas Bill of Rights.
Because plaintiff did not file his claim within four years of the act which gave rise to his claim,
the Court sustains defendant’s motion for judgment on this claim.
II.
Motion To Amend Medical Malpractice Claim
The Court shall freely give leave to amend “when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Whether to grant leave to amend is a matter of discretion for the trial court. See
Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991). The Court should normally
refuse to grant leave to amend only upon a showing of futility, undue delay, undue prejudice to
the non-moving party or bad faith of the moving party. See Frank v. U.S. West, Inc., 3 F.3d 1357,
1365 (10th Cir. 1993). A district court may deny a motion to amend as futile if the proposed
amendment would not withstand a motion to dismiss or otherwise fails to state a claim. See
Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992).
Plaintiff’s proposed amended complaint seeks to add a claim that the statute of repose for
claims against medical providers violates his rights to equal protection under Section 1 of the
Kansas Bill of Rights. For reasons stated above and in light of Stephens, plaintiff’s proposed
claim is futile because it would not withstand a motion to dismiss for failure to state a claim. See
Ketchum, 961 F.2d at 920 (court may deny motion to amend as futile if proposed amendment fails
to state claim).
III.
Section 1983 Claim (Count II): Statute of Limitations
Because no federal statute of limitations exists for Section 1983 actions, courts look to
analogous state laws and the applicable state statutes of limitation to determine the appropriate
time limit for filing a particular Section 1983 action. Baker v. Bd. of Regents of Kan., 991 F.2d
628, 630 (10th Cir. 1993). As noted above, under Kansas law, a two-year statute of limitations
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applies. See K.S.A. § 60–513(a). Federal law, however, controls when a federal cause of action
accrues. See Wallace v. Kato, 549 U.S. 384, 388 (2007). The standard rule is that a cause of
action accrues when plaintiff had a complete and present cause of action, that is, when he could
have filed suit and obtained relief. Id. In other words, a Section 1983 action accrues when facts
that would support a cause of action are or should be apparent. Fogle v. Pierson, 435 F.3d 1252,
1258 (10th Cir. 2006).
In light of the objective and subjective elements of an Eighth Amendment claim, plaintiff’s
claim accrued when he knew or had reason to know that defendant had acted with deliberate
indifference to a known risk to his medical needs, and that defendant’s deliberate indifference
caused plaintiff substantial harm. Vasquez v. Davis, 882 F.3d 1270, 1275-76 (10th Cir. 2018).
The claim accrues once plaintiff knew that defendant’s deliberate indifference had caused him
substantial harm, “even though the full extent of the injury is not then known or predictable.” Id.
at 1276 (citing Wallace, 549 U.S. at 391 (internal quotation marks omitted)).
Defendant argues that plaintiff’s Section 1983 accrued in February of 2011, when he
transferred from CCA-Leavenworth, where Dr. Grote provided care. The allegations in plaintiff’s
complaint, however, do not establish that when he left CCA-Leavenworth in February of 2011, he
had suffered “substantial harm” or had reason to suspect that Dr. Grote’s treatment for his scabies
rash would result in substantial harm. The complaint alleges that plaintiff first realized on
October 16, 2013, that defendant’s deliberate indifference had caused avascular necrosis. Petition
(Doc. #1), ¶ 26 (on October 16, 2013, plaintiff learned that avascular necrosis probably caused by
steroids prescribed by defendant); see also id., ¶ 25 (plaintiff diagnosed with avascular necrosis on
September 12, 2013).
Defendant next argues that plaintiff’s Section 1983 accrued by March of 2011, when a
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medical provider told plaintiff of potential problems related to Dr. Grote’s treatment. In support
of his argument, defendant refers to plaintiff’s allegations in a complaint in a separate lawsuit.
Defendant Stewart Grote, D.O.’s Suggestions In Support Of His Motion For Judgment On The
Pleadings (Doc. #11) at 4-5 (citing Petition (Doc. #1 in Cox II), ¶¶ 13-15). Neither party
addresses whether on a Rule 12(c) motion, the Court can properly consider pleadings from a prior
lawsuit. Generally, when deciding a Rule 12(b)(6) motion to dismiss, the Court may not look
beyond the four corners of the instant complaint. Dean Witter Reynolds, Inc. v. Howsam, 261
F.3d 956, 961 (10th Cir. 2001). Two exceptions to this rule permit the Court to consider
(1) indisputably authentic copies of documents if plaintiff referred to them in the complaint and
the documents are central to the claims and (2) facts which are subject to judicial notice. See GFF
Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (if document
referred to in complaint but not attached to it, and is central to plaintiff’s claim, defendant may
submit indisputably authentic copy to be considered on motion to dismiss); Fed. R. Evid. 201(b)
(judicially noticed fact must be one not subject to reasonable dispute because it is generally known
within territorial jurisdiction of trial court or capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned). Plaintiff’s complaint in a prior case
in this District is subject to judicial notice, but the complaint may only be considered to show its
contents, “not to prove the truth of matters asserted therein.” Tal v. Hogan, 453 F.3d 1244, 1264
n.24 (10th Cir. 2006). Accordingly, the Court can only consider the fact that plaintiff alleged that
in March of 2011, a medical provider told him that he may suffer future problems from Dr. Grote’s
treatment. By itself, plaintiff’s prior allegation does not establish that in March of 2011, he had
suffered “substantial harm” or had reason to suspect that Dr. Grote’s deliberate indifference to his
scabies rash would result in substantial harm.
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Based on the pleadings in this case, on October 16, 2013, plaintiff learned that Dr. Grote’s
treatment had caused him substantial harm. See Petition (Doc. #1), ¶ 26. Within two years, he
filed suit against Dr. Grote. See Civil Complaint (Doc. #1 filed in D. Kan. No. 15-3189-CM).
Judge Murguia dismissed plaintiff’s action without prejudice. See Order (Doc. #47 filed in D.
Kan. No. 15-3189-CM). Plaintiff refiled the instant action within six months of the dismissal.
For purposes of the present motion, defendant does not dispute that under the savings statute,
K.S.A. § 60-518, plaintiff’s complaint relates back to the date that he filed the complaint in Cox II,
D. Kan. No. 15-3189-CM. Therefore, the Court overrules defendant’s motion to the extent it
seeks dismissal of plaintiff’s Section 1983 claim based on the statute of limitations.
IV.
Section 1983 Claim (Count II): Collateral Estoppel
Defendant argues that plaintiff’s Section 1983 claim is foreclosed by collateral estoppel
because Judge Crow made factual findings in Cox I which are dispositive of the claim in this case.
Collateral estoppel prevents the same parties from relitigating an issue that a court has conclusively
determined in a prior action. Phelps v. Hamilton, 122 F.3d 1309, 1318 (10th Cir. 1997); see
Jackson Trak Group, Inc. v. Mid States Port Auth., 242 Kan. 683, 690, 751 P.2d 122, 128 (1988).
The doctrine of collateral estoppel attaches only when an issue of fact or law is actually litigated
and determined by a valid and final judgment, and the determination is essential to the judgment.
B-S Steel of Kan., Inc. v. Tex. Indus., Inc., 439 F.3d 653, 662 (10th Cir. 2006); Arizona v.
California, 530 U.S. 392, 414 (2000). To properly invoke collateral estoppel, defendant must
show that (1) the issue previously decided is identical to the issue presented in the current action;
(2) the prior action has been finally adjudicated on the merits; (3) the party against whom the
doctrine is raised was a party, or in privity with a party, to the prior action; and (4) the party against
whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
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B-S Steel, 439 F.3d at 662.
In Cox I, plaintiff asserted a Section 1983 claim against Dr. Grote related to his treatment
in 2009 and 2010. After filing the complaint, Judge Crow directed plaintiff to show cause why
Minneci v. Pollard, 132 S. Ct. 617 (2012), did not bar his Bivens claim against “private prison
employees.” Order (Doc. #5 filed April 3, 2012 in D. Kan. No. 11-3215-SAC). In the order
dismissing plaintiff’s complaint, Judge Crow held that plaintiff could not assert a Section 1983
claim against “employees of federal, state, and private prisons.” Order (Doc. #10 filed in D. Kan.
No. 11-3215-SAC) at 3. Judge Crow likewise found that plaintiff could not assert a Bivens claim
against such employees. Id.3
Defendant asserts that Judge Crow’s ruling in Cox I bars plaintiff’s Section 1983 claim in
this action.
For purposes of defendant’s motion for judgment on the pleadings, the Court
considers only whether defendant has shown that each element of collateral estoppel is satisfied.
In Cox I, Judge Crow’s order to show cause and order dismissing plaintiff’s complaint rested on
the assumption that Dr. Grote was an employee of CCA-Leavenworth. In this action, plaintiff
has not alleged this fact. Instead, plaintiff alleges that Dr. Grote was “under contract with CCA
to provide medical care to inmates at the Leavenworth Detention Center.” Petition (Doc. #1),
¶ 41. Because the allegations of Dr. Grote’s employment status are different in the two actions,
the legal issue of the availability of a remedy under Section 1983 does not appear to be “identical.”
In addition, based on Judge Crow’s statement of the relevant legal issues in the order to show
cause, plaintiff did not have a full and fair opportunity to litigate the issue whether a Section 1983
3
Plaintiff appealed Judge Crow’s rulings, but the Tenth Circuit dismissed plaintiff’s
appeal for lack of prosecution.
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claim is available against a physician who is not a prison employee.4 For these reasons, the Court
overrules defendant’s motion to the extent it seeks dismissal of plaintiff’s Section 1983 claim on
the grounds of collateral estoppel.
IT IS THEREFORE ORDERED that Defendant Stewart Grote, D.O.’s Motion For
Judgment On The Pleadings (Doc. #10) filed November 22, 2017 is SUSTAINED in part. The
Court dismisses Count I of the Petition (Doc. #1). The Court otherwise overrules defendant’s
motion.
IT IS FURTHER ORDERED that Plaintiff’s Motion To Amend Petition (Doc. #16) filed
December 28, 2017 is OVERRULED.
Dated this 9th day of August, 2018 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
4
At this stage, Judge Crow’s rulings in Cox I do not preclude plaintiff’s claim under
collateral estoppel principles. Even so, the Court does not imply that plaintiff necessarily can
pursue a Section 1983 claim against Dr. Grote.
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