Tomlin v. Health Assurance, LLC et al

Filing 61

MEMORANDUM OPINION AND ORDER granting 46 Motion to Dismiss; granting 49 Motion for Summary Judgment. Signed by Magistrate Judge John C. Gargiulo on 7/20/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DONALD EDWARD TOMLIN
V.

PLAINTIFF
CIVIL ACTION NO. 1:15-cv-375-JCG

HEALTH ASSURANCE, LLC,
KRISTI BOURN,
DR. WAYNE GRAYSON, and
JACKSON COUNTY,
MISSISSIPPI

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTIONS AND DISMISSING CASE
BEFORE THE COURT is Defendant Kristi Bourn’s Motion to Dismiss (ECF
No. 46) and Defendant Jackson County, Mississippi’s Motion for Summary
Judgment (ECF No. 49). Plaintiff Donald Edward Tomlin has not responded to the
Motions, despite twice being ordered to do so. Having reviewed the submissions of
the parties, the record, and relevant law, the Court finds that Bourn’s Motion to
Dismiss should be GRANTED. All claims against all Defendants are appropriate for
dismissal pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure to
prosecute. Jackson County’s Motion for Summary Judgment should be GRANTED
because Plaintiff has failed to state a claim and further demonstrated no grounds
for municipal liability.

I. BACKGROUND
On July 12, 2015, Plaintiff Donald Edward Tomlin, while incarcerated at the
Jackson County Adult Detention Center1 (“JDADC”), filed a Complaint in this
Court alleging that he did not receive adequate medical treatment. (ECF No. 1, at
4). The Court ordered Tomlin to clarify his claims. (ECF No. 6). Tomlin clarified
that he was suing Defendants Health Assurance, LLC, Nurse Kristi Bourn, and Dr.
Wayne Grayson,2 for a lack of adequate medical care because he had a boil on his
ear that he believes was not properly treated. (ECF No. 7, at 1, 2). Tomlin stated
that he was suing Jackson County for a “policy or custom” of not treating prisoners
unless they have “life-threatening injuries.” Id. Tomlin further explained his claims
at an omnibus hearing held on September 20, 2016.3
Defendant Kristi Bourn filed a Motion to Dismiss on January 17, 2017,
asserting that this case should be dismissed for failure to prosecute because Tomlin
has failed to keep the court appraised of his current address. (ECF No. 46). With the
Motion, Defendant Bourn provided proof that she tried multiple times to deliver
documents to Tomlin, and each letter was returned. Id. at 1. Tomlin later filed a
notice indicating that he had been released from JCADC and now resided in

On September 18, 2015 Plaintiff Tomlin was sentenced to five (5) years for the charge of
grand larceny to be served in custody of the Mississippi Department of Corrections.
1

2

Originally filed as “Dr. John Doe” and clarified by the Plaintiff at the omnibus hearing.

The omnibus hearing functioned as a screening hearing pursuant to Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985).
3

Pascagoula, Mississippi. He provided a residence address, which indicates that he is
no longer incarcerated.
On February 16, 2017, Defendant Jackson County filed a Motion for
Summary Judgment, and supporting memo, arguing that Tomlin has not provided
evidence supporting municipal liability under §1983, nor complied with the
Mississippi Tort Claims Act’s notice provision with respect to any state law claims.
(ECF. Nos. 49, 50). Tomlin, to date, has failed to respond to either of Defendants’
Motions.
On February 16, 2017, Defendant Health Assurance filed a Notice of
Bankruptcy. (ECF No. 51). On February 22, 2017, the Court issued an Order
Staying Proceedings against Health Assurance until further order of the
bankruptcy court. (ECF No. 55).
The Court then entered two Orders for Tomlin to show cause. (ECF Nos. 56,
59). The first Order, issued on February 22, 2017, gave Tomlin until March 15,
2017, to respond to Defendants’ Motion to Dismiss and Motion for Summary
Judgment. The second Order, issued May 4, 2017, gave Tomlin until May 25, 2017,
to respond to both of Defendants’ Motions. Both Orders expressly warned Tomlin
that failure to respond could lead to dismissal of his case for failure to prosecute
under Federal Rule of Civil Procedure 41(b). Tomlin was also warned that failure to
advise the Court of a change of address subjected his case to dismissal. (ECF No.
59). The second Order (ECF No. 59) was sent by certified mail to Tomlin’s last
known address and signed for by “Myrtle Tomlin.” (ECF No. 60). Despite proof that

the Order to Show Cause was delivered, Tomlin has still failed to respond to
Defendants’ Motions, and he has not attempted to demonstrate why this case
should not be dismissed for his failure to prosecute.
II. DISCUSSION
A. Failure to Prosecute
Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district
court may dismiss a lawsuit based on the failure of a plaintiff to prosecute his
claims or comply with any order of the court. Under this rule, “[t]he court possesses
the inherent authority to dismiss [an] action sua sponte, without motion by a
defendant.” McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (citing
Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). The Court must be able to
clear its calendars of cases that remain dormant because of the inaction or
dilatoriness of the parties seeking relief, so as to achieve the orderly and
expeditious disposition of cases. Link, 370 U.S. at 630. Such a sanction is necessary
in order to prevent undue delays in the disposition of pending cases and to avoid
congestion in the calendars of the Court. Id. at 629-30.
As a general rule, dismissals under Rule 41(b) are permitted only when “(1)
there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the
district court has expressly determined that lesser sanctions would not prompt
diligent prosecution, or the record shows that the district court employed lesser

sanctions that proved to be futile.” Berry v. CIGNA/RSI, 975 F.2d 1188, 1191 (5th
Cir. 1992).
On review, the Court finds that Tomlin’s conduct shows a clear pattern of
delay and contumacious conduct. The record shows that Tomlin has failed or
refused to respond to Bourn’s Motion to Dismiss and Jackson County’s Motion for
Summary Judgment, despite being expressly ordered to do so on two separate
occasions. Tomlin was twice warned that his failure to respond subjected his suit to
dismissal under Rule 41(b) for failure to prosecute. Due to Tomlin’s continued
disregard for this Court’s orders, it is clear that lesser sanctions than dismissal
would not prompt diligent prosecution.
Because Tomlin is proceeding pro se, the failure or refusal to respond to the
Court’s Orders and Defendants’ Motions can only be attributed to Tomlin himself.
Tomlin has been released from JCADC and apparently no longer has an interest in
pursuing this case.
As the record in this case amply shows a clear pattern of intentional delay
and contumacious conduct on the part of Tomlin, and as the Court has determined
that lesser sanctions would not prompt him into abiding by the Orders and Rules of
this Court or into pursuing his claims, the Court finds this lawsuit should be
dismissed under Rule 41(b) of the Federal Rules of Civil Procedure.
All claims should be dismissed for failure to prosecute, including those
against Health Assurance. The Court has the power to dismiss a case for docket

management purposes under Rule 41(b) regardless of an automatic stay. Arnold v.
Garlock Inc., 288 F.3d 234, 237 (5th Cir. 2002).4 Dismissal of the claims against
Health Assurance is appropriate because the Court was not required “to consider
other issues presented by or related to the underlying case.” Dean v. TWA, 72 F.3d
754, 756 (9th Cir. 1995). Additionally, dismissal is proper because, “there was no
conceivable way for the court’s consideration of the [Rule 41(b)] dismissal to harm
the bankrupt [Health Assurance].” Id. at 755-56. Dismissal is “consistent with the
purpose of [section 362(a)]” because it does not intrude on Health Assurance’s
“breathing space,” instead freeing them up from entangling litigation. Id. For these
reasons, all claims against all Defendants should be dismissed with prejudice under
Rule 41(b).
B. Jackson County’s Motion for Summary Judgment
Jackson County is also entitled to summary judgment. Summary judgment
is mandated against the party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case and on which that party
has the burden of proof at trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). If “the movant shows that there is no genuine dispute of
material fact and the movant is entitled to judgment as a matter of law" the Court
shall grant a motion for summary judgment. Fed. R. Civ. P. 56(a). In evaluating a

See O'Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (holding that a district
court has the power to dismiss a case for failure to comply with court rules, regardless of 11
U.S.C §362(a), in the interest of advancing a crowded docket and preserving respect for the
integrity of its internal procedures); Dennis v. A.H. Robins Co., 860 F.2d 871, 872 (8th Cir.
1988) (same).
4

motion for summary judgment, the Court must construe "all facts and inferences in
the light most favorable to the non-moving party." McFaul v. Valenzuela, 684 F.3d
564, 571 (5th Cir. 2012).
The movant bears the initial burden of identifying those portions of the
pleadings and discovery on file, together with any affidavits, which they believe
demonstrate the absence of a genuine dispute of material fact. Celotex, 477 U.S. at
323-325. If the movant carries this burden, the burden shifts to the non-moving
party to show that summary judgment should not be granted. Id. at 324-25.
The Plaintiff may not rest upon mere allegations in his Complaint, but must
set forth specific facts showing the existence of a genuine issue for trial. Abarca v.
Metro Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005). The non-moving party
cannot satisfy his summary judgment burden with conclusory statements,
speculation, and unsubstantiated assertions. Douglass v. United Servs. Auto Ass’n,
79 F.3d 1415, 1429 (5th Cir. 1996).
1. 42 U.S.C. § 1983 Claims
42 U.S.C. § 1983 imposes liability upon any person who, acting under the
color of state law, deprives another of federally protected rights. Section 1983
“neither provides a general remedy for the alleged torts of state officials nor opens
the federal courthouse doors to relieve the complaints of all who suffer injury at the
hands of the state or its officers.” White v. Thomas, 660 F.2d 680, 683 (5th Cir.
1981). Instead, § 1983 affords “a remedy only to those who suffer, as a result of state
action, deprivation of ‘rights, privileges, or immunities secured by the Constitution

and the laws’ of the United States.” Id. (quoting 42 U.S.C. §1983). A fundamental
requirement of any § 1983 claim is the existence of a constitutional violation.
Daniels v. Williams, 474 U.S. 327, 330 (1986).
“Municipal liability under [S]ection 1983 requires proof of three elements: a
policymaker; an official policy; and a violation of constitutional rights whose
‘moving force’ is the policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567,
578 (5th Cir. 2001)(citing Monell v. Dep’t of Soc. Services, 436 U.S. 658, 694 (1978)).
The Piotrowski requirements for establishing municipal liability are necessary to
distinguish isolated violations by individual employees from those violations that
can be fairly attributed to the conduct of the government entity itself. Id. at 579. As
such, government entities, like Jackson County, cannot be held liable for isolated
acts of lower level employees but are instead only liable for constitutional violations
committed under an official policy or custom. Id. at 578.
Official policy is ordinarily contained in duly promulgated policy statements,
ordinances, or regulations. But a policy may also be evidenced by custom, that is:
a persistent, widespread practice of City officials or
employees, which, although not authorized by officially
adopted and promulgated policy, is so common and wellsettled as to constitute a custom that fairly represents
municipal policy. . . Actions of officers or employees of a
municipality do not render the municipality liable
under section 1983 unless they execute official policy as
above defined.
Id. at 579 (citing Webster v. Houston, 735 F.2d 838, 841 (5th Cir. 1984)).

While an unconstitutional official policy renders a municipality culpable
under Section 1983, even a facially innocuous policy will support liability if it was
promulgated with deliberate indifference to the “known or obvious consequences”
that constitutional violations would result. Id. (citing Bd. of the Cty. Comm’rs v.
Brown, 520 U.S. 397, 407 (1997)). Deliberate indifference of this sort is a stringent
test, and “a showing of simple or even heightened negligence will not suffice” to
prove municipal culpability. Id. It follows that each and any policy which allegedly
caused constitutional violations must be specifically identified by a plaintiff, and it
must be determined whether each one is facially constitutional or unconstitutional.
Id. at 579-80.
In addition to culpability the Plaintiff must establish a direct causal link
between the municipal policy and the constitutional deprivation. Id. at 580. The
causal link must be so strong as to be considered as the “moving force” behind the
violation. Id.
Tomlin alleges that a boil on his ear was inadequately treated. (ECF No. 1, at
4). Tomlin contends that JCADC has a policy of treating only “life-threatening”
conditions. (ECF No. 49-2, at 16). Tomlin maintains that one of the corrections
officers – Amanda Shepperson – told him “he might as well give up” as they were
not going to treat him unless it was “life-threatening.” Id. at 18. 5

In an affidavit, Amanda Shepperson states she has no memory of this interaction or of the
alleged statements (ECF No. 49-7, at 1).
5

Plaintiff was examined by medical professionals on more than one occasion
regarding the boil on his ear. The boil was medically lanced twice but returned
again. Plaintiff was advised he would have to wait for a specialist to assess his
condition. Tomlin received medical treatment; he merely disagrees with the
treatment and the pace of treatment. Viewing the facts in a light most favorable to
Tomlin, he has not alleged conduct that rises to the level of a constitutional
violation. Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001).
Tomlin has also failed to provide proof that Jackson County has a policy or
custom to deny medical treatment. Defendants, though they do not bear the burden
of proof, have offered a “Health Services Agreement” (ECF No 49-3) and a copy of
the “JDADC Inmate Handbook” (ECF No 49-4), each of which details the level of
medical care available to inmates. Because Tomlin has failed to provide evidence
rebutting this evidence and demonstrating that a policy or custom propagated by a
policymaker was the “moving force” behind a violation of his constitutional rights,
his § 1983 claims against Jackson County fail on the summary judgment record.
2. State Law Claims Against Jackson County.
To the degree that it is possible to construe Tomlin’s Complaint as containing
state law claims, Tomlin has failed to establish that he complied with the notice
requirements of the Mississippi Torts Claim Act (“MTCA”), Miss. Code Ann. § 1146-11, et. seq. Prior to the commencement of a lawsuit against a governmental
entity, a plaintiff is required to file a written notice of claim with the chief executive
officer of the governmental entity. See Miss. Code Ann. § 11-46-11. In the present

matter, Tomlin has provided no evidence that he has complied with this section of
the MTCA. Defendant Jackson County is thus entitled to summary judgment on
any potential state law claims.
CONCLUSION
IT IS, THEREFORE, ORDERED that Defendant Kristi Bourn’s Motion to
Dismiss (ECF No. 46) is GRANTED.
IT IS, FURTHER, ORDERED that Defendant Jackson County’s Motion for
Summary Judgment (ECF No. 49) is GRANTED.
SO ORDERED this the 20th day of July, 2017.

s/ John C. Gargiulo

JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE