Raybourn v. Corizon Medical Services et al
Filing
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MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk shall issue process or cause process to be issued on all claims in plaintiff's first amended complaint in accordance with the Courts agreement with CMS. Signed by Magistrate Judge Patricia L. Cohen on July 14, 2016. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CONNIE RAYBOURN
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Plaintiff,
v.
HARI S. KAPUR, et al.,
Defendants.
No. 2:16CV10 PLC
MEMORANDUM AND ORDER
Before the Court is plaintiff Connie Raybourn’s first amended complaint.
After
reviewing the first amended complaint, the Court will order the Clerk to issue process or cause
process to be issued on the amended complaint.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief against a defendant who is immune from such relief. An action
is frivolous if “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint
the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court
must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly
baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950-51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of
a cause of action [that are] supported by mere conclusory statements.” Id. at 1949. Second, the
Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show
more than the “mere possibility of misconduct.”
Id.
The Court must review the factual
allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the Court may
exercise its judgment in determining whether plaintiff’s proffered conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
The First Amended Complaint
Plaintiff, Connie Raybourn, an inmate at the Women’s Eastern Reception, Diagnostic
Correctional Center (“WERDCC”), brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of her civil rights. Plaintiff is represented by appointed counsel in this matter. Named
as defendants in plaintiff’s first amended complaint are: Corizon Health Inc., doing business as
Corizon Medical Services, Inc. (“CMS”); Haris Kapur (Doctor, Former Medical Director at
WERDCC, employed by CMS); Justin Jones (Current Medical Director, employed by CMS);
Thomas Bredeman (Doctor of Osteopathy, Associate Regional Medical Director for WERDCC,
employee of CMS); Carl Doerhoff (Surgeon at Surgicare of Missouri, contract physician of
CMS); William Rice (Doctor, employed by CMS); Marilyn Hubert (Health Services
Administrator at WERDCC, employee of CMS); Susan Woodrow (Correctional Officer,
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employee of the Missouri Department of Corrections (“MDOC”). Defendants are named in the
official and individual capacities.
Plaintiff asserts that in 2012 she turned fifty (50) years-old and had chronic complaints of
bowel irregularities, with a medical history of gastric bypass. Plaintiff asserts that despite
requesting a colonoscopy for three straight years, defendants Kapur, Bredeman, Jones and Rice
denied her the screening test. Plaintiff asserts that they denied the test despite her age, medical
complications, and a sign posted in the infirmary encouraging prisoners to schedule a
colonoscopy if they were over the age of fifty (50). (Count I)
On February 18, 2014, plaintiff presented to the infirmary complaining of an inability to
have a bowel movement, nausea, vomiting and pain in her abdomen. Plaintiff underwent an xray, which showed some indication of a bowel obstruction.
Plaintiff asserts that although
defendant Kapur read the x-ray findings, he did not send her for further medical assistance
outside of the prison immediately, but instead gave her laxatives and medication for nausea
which did not improve her symptoms. Plaintiff alleges that her symptoms continued to worsen
for seven more days while defendant Kapur continued to treat her with laxatives only. Plaintiff
asserts that, on February 26, 2014, a nurse saw her vomit fecal material into a cup, and after that
time, and repeat x-rays, defendant Kapur finally transferred plaintiff to Audrain Medical Center
with a diagnosis of bowel obstruction. At the Medical Center, plaintiff had a CT scan, which
revealed that she had colon cancer. This necessitated removal of 7.5 cm of her bowel and
several lymph nodes, chemotherapy, and, eventually, a hernia repair. (Count II)
Plaintiff asserts that Corizon, Kapur and Bredeman acted with deliberate indifference in
refusing to provide her with a timely colonoscopy, which could have prevented her pain and
suffering, and they also acted with deliberate indifference in failing to diagnose and delaying
treatment for her bowel obstruction. Further, plaintiff believes defendants acted pursuant to a
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pattern or practice or custom, implemented by defendants, not to provide colonoscopies, in order
"to keep down costs." Further, plaintiff asserts that defendants acted in accordance with a policy
or practice not to transfer patients to outside facilities in order "to keep down costs," and in
addition, failed to transfer plaintiff to a facility capable of dealing with plaintiff’s health and
medical issues. (Counts I and II)
After plaintiff’s surgery to remove the tumor, she developed a hernia, which her surgeon
noted needed open surgical repair in June of 2014. Despite numerous requests by plaintiff for
surgical repair of the hernia, plaintiff did not undergo surgery until September 2015, at which
time, despite her surgeon’s recommendations, she was sent to a different doctor for outpatient
laparoscopic hernia repair by defendant Doerhoff. Defendant Doerhoff informed plaintiff that he
had agreed with CMS "not to admit any patients" for overnight visits in the hospital.
Plaintiff states that after defendant Doerhoff repaired her hernia laparoscopically, she
continued to experience pain, dysfunction and tightness in the area of the hernia. Plaintiff states
that she requested re-evaluation by a surgeon, however, defendants CMS, Bredeman, Jones and
Hubert denied these requests. Plaintiff believes defendants have been deliberately indifferent to
her serious health condition relating to her hernia repair, and she believes that defendants have
acted in accordance with an unconstitutional pattern or practice of not allowing overnight stays
in the hospital "to keep down costs." (Count III)
During plaintiff’s chemotherapy treatment, between May 2014 and November 2014,
plaintiff had difficulty maintaining her white blood cell count. Oncologists often prescribe white
cell growth stimulators to help boost white blood cell counts in chemotherapy. Plaintiff first
received a drug called Neulasta on June 11, 2014. Immediately, plaintiff’s white blood cell
count increased enough to begin another round of chemotherapy by June 17, 2014. Because the
Neulasta seemed to work, her oncologist prescribed Neulasta prior to her next chemotherapy
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appointment. However, after plaintiff’s first Neulasta shot, CMS refused to provide Neulasta
and instead substituted another drug called Granix. Plaintiff asserts that Granix did not work as
well as Neulasta, and defendants knew this and did not want to put her back on the Neulasta due
to the high cost of the drug and their unconstitutional policy and practice "to keep down costs."
(Count IV)
Plaintiff claims that “four out of twelve cycles” of chemotherapy had to be delayed due to
abnormal and variable blood counts. She claims that every time her white blood cycles dropped
too low, she had to be placed in isolation and placed on antibiotics, which negatively impacted
her ability to fight infection with antibiotics in the future. Plaintiff believes defendants’ actions
in denying her the ability to use Neulasta constituted deliberate indifference to her serious
medical needs. (Count IV)
Similarly, plaintiff believes that defendants’ failure to allow her to wear a hat, scarf and
gloves (provided by the doctor), was unconstitutional conduct in violation of her rights, given
that she experienced cold intolerance in her extremities as a result of the chemotherapy. 1 In
addition, despite defendants' knowledge that she was experiencing this cold intolerance,
defendants failed to allow plaintiff additional heat during transport by opening the partition
window in the transport vehicle. Plaintiff alleges that these actions were also violations of her 8th
Amendment rights. According to plaintiff, these actions caused increased risk to plaintiff of
permanent nerve damage to her extremities. (Count V)
Last, plaintiff states that defendants violated her rights when they failed to allow her
timely surgical evaluation for removal of her ovaries. Plaintiff claims that in 2014, prior to her
hernia repair, her outside physician informed her that she should have her ovaries removed due
to an increased risk of ovarian cancer and advised that it would be riskier to remove the ovaries
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It appears that plaintiff also asked for, but was not given, a hat, gloves and scarf, by the
prison authorities.
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after the hernia surgery. Plaintiff claims that she requested, on several occasions, an evaluation
by a surgeon, for removal of her ovaries. However, she has been denied these requests. Plaintiff
claims that defendants are being deliberately indifferent to her serious medical needs by denying
these requests, and are additionally acting in accordance with an unconstitutional policy or
practice "to deny expensive care that is designed solely to prevent serious illness, disease and
death in order to keep costs down." (Count VI)
Plaintiff also alleges the state law claims of negligence in this action, for all claims set
forth herein. (Count VII)
The Court finds that plaintiff has stated a claim against defendants for Counts 1-7 in this
action and will request that the Clerk of Court serve process on defendants or cause process to be
issued by the U.S. Marshal. See 28 U.S.C. § 1915.
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall issue process or cause process to be
issued on all claims in plaintiff’s first amended complaint in accordance with the Court’s
agreement with CMS.
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of July, 2016.
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