Pfeifer v. Thompson et al

Filing 186

MEMORANDUM OPINION AND ORDER signed by Senior Judge Thomas B. Russell on 4/17/18 granting 171 Motion to Dismiss; granting 180 Motion for Extension of Time to Answer: Hiland's Motion to dismiss, [DN 171 ], is GRANTED insofar as Plaintiff m ay not pursue claims for loss of consortium on behalf of Embrys heirs. 2. Grishams Motion for an extension of time to file an answer, [DN 180 ], is GRANTED. Grisham shall have twenty-one (21) days from the date of entry of this Order to file an answer or otherwise respond. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:15-CV-7-TBR
MARK PFEIFER, Administrator of
the Estate of James Kenneth
Embry, Deceased,

PLAINTIFF

v.
CORRECTCARE-INTEGRATED HEALTH,
INC., et al.,

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon two Motions. First, there is the Motion filed by
Defendant Steve Hiland to dismiss Plaintiff’s claim for loss of consortium, loss of
companionship, grief, and pain and suffering. [DN 171.] Second, Defendant Hope Grisham1 has
filed a Motion for extension of time to file an answer. [DN 180.] These matters are ripe for
adjudication, and their merits are discussed below.
I. Factual Background
The following Factual Background section is taken largely from this Court’s previous
Memorandum Opinion and Order docketed at DN 127: This action arises out of the death of
James Kenneth Embry while he was an inmate at the Kentucky State Penitentiary (“KSP”).
Embry died of starvation and dehydration after refusing thirty-five of his final thirty-six meals.
Following his death, the Kentucky Department of Corrections (“DOC”) conducted a Critical
Incident Review which concluded that Embry’s death “occurred as a result of a systemic failure
at the Kentucky State Penitentiary.” [DN 105-1, at 19.]

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Her listed name in the lawsuit is “Gresham,” but the correct spelling is “Grisham.”

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Embry was a 57-year-old man serving a nine-year sentence after being convicted of drug
possession, assault, and wanton endangerment. Embry had a history of mental illness and had
been prescribed various medications while at KSP. Embry was also disruptive, having “no less
than 25 major disciplinary violations.” [Id. at 3.] This pattern of disruptive behavior ceased on
June 22, 2012. On that date Embry was assaulted by another inmate. The assault, which required
Embry to be transported to a local hospital for medical care, appeared to have a major impact on
Embry. Embry received no further disciplinary reports until shortly before his death, when he
was cited multiple times for failing to eat and harming himself. Embry was fearful and believed
there was a “contract” on his life. [Id. at 4.]
Embry was prescribed various medications for his mental health while he was an inmate.
On May 7, 2013, Embry informed the medical staff that he did not like how these medications
made him feel and would no longer take certain medications. Eventually, all of Embry’s
medications were discontinued on July 22, 2013, after Embry refused to take them for two
weeks. Embry continued to fear for his own safety and on November 29, 2013, he was moved to
a segregation unit, Cellhouse Three. On December 3, Embry told Dr. Jeane Hinkebein, a
psychologist at KSP, that he wanted to begin taking his medication again. Embry was “anxious
and paranoid” and believed he “could not take it on the yard.” [Id.] Embry also repeatedly made
statements about wanting to harm himself. These claims were discounted and it was concluded
that Embry’s actions were goal-driven to influence his housing location. Embry was seen again
on December 5 and his request for medication was denied. [Id. at 6.] Embry was placed on a 15minute watch and put into a suicide smock due to the statements he made to staff.
Thereafter, Embry began to display a pattern of refusing to eat many of his meals. [Id. at
7.] Embry also continued to make statements about wanting to hurt himself and about how he

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had nothing to live for. Throughout the end of December 2013 and into January 2014, Embry
began to refuse more and more meals. On January 13, 2014, Embry died. His autopsy concluded
that he died from “dehydration with contributing starvation, duodenal ulcer, and emphysema
with right ventricle hypertrophy.” [Id. at 6.] Embry had lost around 44 pounds in the five months
before his death.
This action was initially filed as two separate lawsuits. Mark Pfeifer was appointed the
Administrator of the Estate of James Embry in Daviess County and filed a case on January 12,
2015. Pfeifer v. Thompson, 5:15-cv-7. Robbie Emery Burke was appointed Administrator of the
Estate of James Embry in Lyon County and filed a case on January 15, 2015. Burke v. Correct
Care Solutions, 5:15-cv-15. The Daviess County case was amended to name Ms. Burke the
administrator. The Court consolidated these cases. [DN 86.]
II. Hiland’s Rule 12(c) Motion to Dismiss
A. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that the plaintiff’s complaint include “a
short and plain statement of the claim showing that the pleader is entitled to relief.” “Rule
12(b)(6) provides that a complaint may be dismissed for failure to state a claim upon which relief
can be granted.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998). Crucially, “[w]hen
considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the district court must accept all of the allegations in the complaint as true, and
construe the complaint liberally in favor of the plaintiff.” Lawrence v. Chancery Court of
Tennessee, 188 F.3d 687, 691 (6th Cir. 1999). This means that, “unless it can be established
beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief,” the motion should be denied. Achterhof v. Selvaggio, 886 F.2d 826, 831

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(6th Cir. 1989). “However, the Court need not accept as true legal conclusions or unwarranted
factual inferences.” Blakely v. United States, 276 F.3d 853, 863 (6th Cir. 2002). A “complaint
must contain either direct or inferential allegations respecting all the material elements to sustain
a recovery under some viable legal theory.” Andrews v. Ohio, 104 F.3d 803, 806 (6th Cir. 1997).
Although a “complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. The concept of “plausibility” demands that a complaint contain sufficient facts “to
state a claim to relief that is plausible on its face.” Id. at 570. The element of plausibility is met
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). However, where the court is unable to “infer more than the mere possibility of
misconduct, the complaint has alleged—but has not show[n]—that the pleader is entitled to
relief.” Id. at 679 (internal quotation marks omitted).
Finally, pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the pleadings.”
The Court analyzes a Rule 12(c) motion for judgment on the pleadings using the same standard
as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.
Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).

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B. Discussion
Hiland has presented three key arguments to the Court regarding why Plaintiff’s claim for
loss of consortium, loss of companionship, grief, and pain and suffering should be dismissed for
failure to state a claim upon which relief can be granted. However, as an initial matter, this Court
must address the propriety of Hiland’s Motion at this stage in the litigation. Hiland filed an
Answer to the original Complaint on February 5, 2015. [DN 6.] Hiland also filed Answers with
respect to Plaintiff’s Amended Complaints. [See DN 87, 88, 108.] It is axiomatic that the filing
of a responsive pleading forecloses a defendant’s opportunity and ability to file a Rule 12(b)(6)
motion to dismiss for failure to state a claim upon which relief can be granted.
Notably though, Rule 12(c) provides that a party may move for judgment on the
pleadings after such pleadings have closed. Fed. R. Civ. P. 12(c). Thus, the filing of an answer
does not foreclose a defendant’s opportunity to move under this rule. The question then becomes
whether, having announced an intention to move under Rule 12(b)(6), this Court may construe it
as a Rule 12(c) motion instead, thereby preventing its automatic dismissal. The Court finds that it
may do so. In Satkowiak v. Bay Cnty. Sheriff’s Dept., 47 F. App’x 376, 377 (6th Cir. 2002), the
Sixth Circuit Court of Appeals explained how the conversion works. There, the defendant
Sheriff’s Department answered the plaintiff’s Complaint and, thereafter, filed a motion to
dismiss pursuant to Rule 12(b)(1) and 12(b)(6). Id. In reviewing the district court’s decision, the
Sixth Circuit explained that
[t]echnically, under the Federal Rule of Civil Procedure 12(b), which requires that
‘[a] motion making any of these defenses shall be made before pleading if a
further pleading is permitted,’ the Sheriff Department’s motion to dismiss under
Rule 12(b)(6) should be labeled as a Rule 12(c) motion for judgment on the
pleadings since the Sheriff’s Department had already filed an answer to the
complaint.

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Id. at 377 n.1. See also Wagner v. Higgins, 754 F.2d 186, 188 (6th Cir. 1985) (explaining that
where defendants’ motion was incorrectly labeled as a Rule 12(b)(6) motion when it should have
been under Rule 12(c), “such an incorrect reference to the Rules is not fatal where the substance
of the motion is plain.”). Thus, the Court has concluded that, although Hiland referenced Rule
12(b)(6) in the instant Motion, “the substance of the motion is plain” as one under Rule 12(c),
and the Court will analyze it as such. Indeed, the Court ordered Plaintiff to file a renewed
Response to the instant Motion, [See DN 183 (Court Order)] addressing it on its merits, [DN
184], and Hiland also filed a renewed Reply thereto. [DN 185.]
Plaintiff has laid out the following claims: (1) violation of Embry’s Constitutional rights
under 42 U.S.C. § 1983; (2) negligence and gross negligence; (3) Intentional Infliction of
Emotional Distress (“IIED”); (4) Wrongful Death; and (5) Negligence Per Se. [DN 105, at 2228.] After each of these claims, Plaintiff has stated that “Embry’s heirs have suffered damages,
including, but not limited to, pecuniary loss (including lost wages), loss of consortium, grief, loss
of companionship, pain and suffering.” [See id. at p. 91, 112, 116, 124.]
In his Motion to Dismiss, Hiland sets forth three key arguments: (1) an estate cannot
recover damages for loss of consortium, loss of companionship, grief, or pain and suffering; (2)
the statute of limitations has passed for Embry’s children to bring such a claim in their individual
capacities; and (3) even if the statute of limitations has not run, or an amendment would relate
back, emancipated children cannot recover for loss of consortium or loss of companionship. [See
DN 171-1, at 3-7.]
1. Plaintiff’s § 1983 Claim
Regarding Plaintiff’s § 1983 claim, Hiland correctly points out that this claim is a
personal one. In Jaco v. Bloechle, 739 F.2d 239, 241 (6th Cir. 1984), the Sixth Circuit Court of

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Appeals explained that “Section 1983 creates a cause of action for deprivation of civil rights. By
its own terminology, the statue grants the cause of action ‘to the party injured.’” This means that
“it is an action personal to the injured party.” Id. Stated differently, a § 1983 claim, “by virtue of
the explicit language of the section itself, is a personal action cognizable only by the party whose
civil rights ha[ve] been violated….” Id. at 242. Likewise, in Claybrook v. Birchwell, 199 F.3d
350, 357 (6th. Cir. 2000), the Sixth Circuit explained that “no cause of action may lie under
section 1983 for emotional distress, loss of a loved one, or any other consequent collateral
injuries allegedly suffered personally by the victim’s family members.” The Eastern District of
Michigan expanded on this in 2014, citing to numerous cases in this circuit which have handed
down similar holdings:
Applying Jaco[, 739 F.2d at 239,] in Broadnax v. Webb, 892 F. Supp. 188 (E.D.
Mich. 1995), the court held that children of a parent who was in a permanent
vegetative state after she attempted to swallow a bag of cocaine during a police
raid of her home could not recover damages for their loss of companionship of
their mother in a § 1983 civil rights suit because ‘the denial of rights under the
Constitution…was suffered by the parent….The court reasoned, ‘[A]
constitutional violation is something personal to the individual injured,’ and ‘a
violation against one member of a family does not confer standing upon all other
members of that particular family’ to recover damages….See also Lee v. City of
Norwalk, Ohio, 2012 U.S. Dist. LEXIS 123631, 2012 WL 3778975, at *12 (N.D.
Ohio Aug. 30, 2012) (a spouse cannot state a claim for loss of consortium under §
1983 because such claims are entirely personal to the direct victim of the
constitutional tort)…; Garrett v. Belmont County Sheriff’s Department, 374 F.
App’x 612, 615 (6th Cir. 2010) (damages for emotional distress, loss of a loved
one or any other consequent collateral injuries will not lie under § 1983: ‘Those
kinds of injuries are appropriately raised in a state tort law cause of action.’ Id.);
Alexander v. Beale Street Blues Co., Inc., 108 F. Supp. 2d 934, 953 (W.D. Tenn.
1999) (a decedent’s survivors may not recover for their own damages under §
1983)….
Blair v. Harris, 993 F. Supp. 2d 721, 731 (E.D. Mich. 2014). From this, it is clear to the Court
that, in this case, Plaintiff is not permitted to recover damages on behalf of Embry’s heirs for loss

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of consortium, loss of companionship, grief, or pain and suffering under the § 1983 claim. The
Court will grant Hiland’s Motion on this claim.
2. Plaintiff’s Common Law Claims
The next issue concerns Plaintiff’s claims for negligence and gross negligence, IIED,
wrongful death, and negligence per se. Under Kentucky law, claims for loss of consortium
“belong[] specifically to a spouse, not to the estate of the deceased.” Martin v. Ohio Cnty. Hosp.
Corp., 295 S.W.3d 104, 107-08 (Ky. 2009); see also Chuby v. Tharpe, No. 3:09-cv-00018-H,
2011 WL 6026614, at *1-*2 (W.D. Ky. Dec. 2, 2011) (discussing Martin, 295 S.W.3d at 107-08
and concurring that “[a] claim for loss of consortium allows a spouse to recover damages against
a third party. With enactment of the statute [KRS § 411.145(1)], the General Assembly made
loss of consortium a statutory cause of action, which belongs specifically to the spouse, not to the
estate of the deceased.”); see also Loew v. Allen, 419 S.W.2d 734, 734 (Ky. 1967) (the “right of
recovery for loss of consortium is [a] personal right of [a] surviving [spouse] individually….”).
In the present action, the lone Plaintiff is Mark Pfeifer, the Administrator of the Estate of
James Embry. Contained within the five claims made by Pfeifer as Administrator is, as discussed
above, the following language: “Embry’s heirs have suffered damages, including, but not limited
to, pecuniary loss (including lost wages), loss of consortium, grief, loss of companionship, pain
and suffering.” [See id. at p. 91, 112, 116, 124.] However, such non-pecuniary damages must be
brought by Embry’s survivors in their individual capacities and not by Pfeifer as Administrator.
The above-cited case law dealt specifically with surviving spouses, while Plaintiff’s Complaint
deals with surviving heirs, but the same principle applies, because the right to bring a claim for
loss of consortium does not belong to the Estate of Embry and, consequently, Pfeifer has no
ability to advance such claims. Since the Court finds that Plaintiff cannot recover non-pecuniary

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damages for loss of consortium on behalf of Embry’s “heirs,” it need not address Hiland’s
arguments concerning the statute of limitations and relation back, or the question of emancipated
children recovering for loss of consortium or companionship.
III. Grisham’s Motion for Extension of Time
The second Motion at issue is Defendant Grisham’s Motion for extension of time to file
an answer. Grisham’s (incorrectly sued as Hope “Gresham”) Motion for extension of time [DN
180] having been filed with this Court, and the Court being otherwise sufficiently advised;
IT IS ORDERED that Grisham’s Motion [DN 180] is GRANTED, and she shall have
21 days from the date of this Order in which to file an answer or otherwise respond to Plaintiff’s
Complaint.
IV. Conclusion
For the reasons stated in this Memorandum Opinion, IT IS HEREBY ORDERED as
follows:
1. Hiland’s Motion to dismiss, [DN 171], is GRANTED insofar as Plaintiff may not
pursue claims for loss of consortium on behalf of Embry’s heirs.
2. Grisham’s Motion for an extension of time to file an answer, [DN 180], is
GRANTED. Grisham shall have twenty-one (21) days from the date of entry of this Order to file
an answer or otherwise respond.
IT IS SO ORDERED.

April 17, 2018

cc:

Counsel of Record

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