Hardy v. Correctional Medical Services et al

Filing 31

OPINION, MEMORANDUM AND ORDER:HEREBY ORDERED that defendant Bessey's motion to dismiss [Doc. 23 ] is GRANTED. An Order of Partial Dismissal will be filed with this Opinion, Memorandum and Order. Signed by District Judge Henry E. Autrey on 10/23/12. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONY HARDY,
Plaintiff,
v.
CORRECTIONAL MEDICAL
SERVICES, et al.,
Defendants.

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No. 4:12CV1 HEA

OPINION, MEMORANDUM AND ORDER
This matter comes before the Court on defendant Dr. R. Eric Bessey’s motion
to dismiss for failure to state a claim upon which relief can be granted. Plaintiff
brought this action under 42 U.S.C. § 1983 for alleged deprivation of adequate
medical care. Bessey moves to dismiss on the basis that he is not a state actor, and
therefore, is not liable under § 1983. The motion will be granted.
Standard
In reviewing a motion to dismiss for failure to state a claim upon which relief
can be granted, the Court must take all facts alleged in the complaint to be true and
must construe the pleadings in the light most favorable to plaintiff. Gregory v.
Dillard’s, 494 F.3d 694, 709 (8th Cir. 2007). The Federal Rules do not require great
precision in pleadings. Id. at 710. “The simplified notice pleading standard under
Fed. R. Civ. P. 8(a) requires only a statement that gives the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it rests.” Id. (quotations
omitted). However, the factual allegations in the complaint must be more than “labels
and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Gregory, 494 F.3d at 710. A
complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.
Discussion
In his amended complaint, plaintiff alleged his jaw was fractured as a result of
an assault by another inmate. Plaintiff claimed that he was taken to the Jefferson City
Oral and Maxillofacial Surgery Clinic, where Dr. Bessey diagnosed his fractured jaw
and performed surgery on it, which included inserting screws and plates into both
sides of plaintiff’s jaw. Prison doctors sent plaintiff to see Bessey for several followups, and plaintiff alleges that Bessey provided treatment to him on those occasions.
Plaintiff claims that the prison doctors have refused to send him to see Bessey for a
follow-up MRI, which plaintiff believes is necessary because he continues to be in
pain. Plaintiff does not allege that Bessey is a state actor.
Dr. Bessey argues that he is not liable under § 1983 because he is not a state
employee and because neither he nor his office contracts with the state to provide
medical care to prisoners. Bessey states he is a private physician who occasionally
treats prisoners who are referred to his office for care.
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To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C.A. § 1983. A private
physician may be liable under § 1983 when he or she acts under color of state law.
See Crumpley–Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir.2004).
Although there are many tests to determine whether a physician in private practice
acts under color of state law, the ultimate issue is whether the private physician’s
actions are “fairly attributable to the state.” See Rendell–Baker v. Kohn, 457 U.S.
830, 838 (1982) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982));
Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288,
295 n.2, 295–96 (2001) (noting that the under-color-of-law requirement of 42 U.S.C.
§ 1983 and the state-action requirement of the Fourteenth Amendment are equivalent
and listing the multitude of tests used to determine whether a private party is a state
actor).
When determining whether a private physician may be held liable under § 1983
as a state actor, courts should consider the “degree to which the work of the private
medical provider is controlled or influenced by the state,” the nature of “the
contractual relationship between the state and the medical care provider,” and the
degree to which the private entity replaces the State’s provision of medical care to
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prisoners, as opposed to simply assisting the State. See Rodriguez v. Plymouth
Ambulance Svc., 577 F.3d 816, 825-29 (7th Cir. 2009).
In this case, there are no allegations that Dr. Bessey was a state actor when he
performed services for plaintiff. Plaintiff did not allege that Bessey had a contract
with the state, and plaintiff recognized in his amended complaint that Bessey was an
“outside” physician. Nor are there any allegations that Bessey’s decisions were
controlled or influenced by the state. Therefore, the allegations show that Bessey was
simply assisting the state by providing services to plaintiff in the same manner Bessey
would have provided services to a non-prisoner. As a result, plaintiff has failed to
state a prima facie case under § 1983 against Bessey.
Accordingly,
IT IS HEREBY ORDERED that defendant Bessey’s motion to dismiss [Doc.
23] is GRANTED.
An Order of Partial Dismissal will be filed with this Opinion, Memorandum
and Order.
Dated this 23rd day of October, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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