Drummer v. Corizon Correctional Health Care et al

Filing 76

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Corizon, LLC., Reynal Caldwell, M.D., Brenda Mallard, M.D., Fe Fuentes, M.D., Beverly Hatcher, Roschell Norton, Richard White, Angie Wyatt, LaCinda Jones, and Danyelle Sullivans motion to dismiss Count IV of Plaintiff's second amended complaint is GRANTED( ECF No. 72 ). Count IV of Plaintiffs Second Amended Complaint is DISMISSED without prejudice. Signed by District Judge Audrey G. Fleissig on 7/19/2018. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAWRENCE DRUMMER JR.,
Plaintiff,
v.
CORIZON, LLC, et al.,
Defendants,

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No. 4:16-CV-01170-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion to dismiss Count IV of Plaintiff’s
second amended complaint filed by Defendants Corizon, LLC., Reynal Caldwell, M.D.,
Brenda Mallard, M.D., Fe Fuentes, M.D., Beverly Hatcher, Roschell Norton, Richard
White, Angie Wyatt, LaCinda Jones, and Danyelle Sullivan (hereafter referred to as
“Corizon Defendants”). For the reasons set forth below, the motion will be granted.
BACKGROUND
Plaintiff filed this pro se prisoner civil rights action on July 18, 2016. ECF No. 1.
On November 10, 2016, the Court granted Plaintiff’s request to appoint counsel, and on
January 2, 2018, counsel filed an amended complaint. 1 ECF No. 54. The amended
complaint contains allegations under 42 U.S.C. § 1983 for violations of the Eighth
Amendment and Plaintiff’s right to due process, as well as a state law claim for
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The Court appointed four different attorneys to represent Plaintiff, all of whom
either withdrew their representation due to a conflict or were removed from
representation by the Court. Plaintiff is now represented by counsel appointed on August
14, 2017. ECF No. 39.

negligence. On January 23, 2018, the Corizon Defendants filed their joint answer and
affirmative defenses. ECF No. 60.
The Corizon Defendants now move to dismiss Plaintiff’s Missouri state law
negligence claim contained in Count IV, which alleges that Plaintiff was a patient of the
Corizon Defendants, who breached their duty to provide reasonable medical care and
treatment for Plaintiff’s right rotator cuff tear. In their motion to dismiss, the Corizon
Defendants assert that Plaintiff failed to file the requisite expert affidavit within the time
limits set by Missouri statute.

Plaintiff responds that filing the affidavit has been

impossible due to the Corizon Defendants’ own unwillingness to provide Plaintiff with
their Rule 26 disclosures or other discovery.
STANDARD OF REVIEW
For a plaintiff to survive a motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. The reviewing court must accept the
plaintiff’s factual allegations as true and construe them in the plaintiff’s favor, but the
court is not required to accept the legal conclusions the plaintiff draws from the facts
alleged. Id.; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766,
768-69 (8th Cir. 2012).

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DISCUSSION
Section 538.225, Missouri Revised Statutes, requires a plaintiff to file an affidavit
attesting to the merits of any action against a health care provider. Devitre v. Orthopedic
Ctr. of St. Louis, LLC, 349 S.W.3d 327, 331 (Mo. 2011) (en banc). The relevant portions
of Section 538.225 provide:
1. In any action against a health care provider for damages for
personal injury or death on account of the rendering of or failure to render
health care services, the plaintiff or the plaintiff’s attorney shall file an
affidavit with the court stating that he or she has obtained the written
opinion of a legally qualified health care provider which states that the
defendant health care provider failed to use such care as a reasonably
prudent and careful health care provider would have under similar
circumstances and that such failure to use such reasonable care directly
caused or directly contributed to cause the damages claimed in the petition.
...
5. Such affidavit shall be filed no later than ninety days after the
filing of the petition unless the court, for good cause shown, orders that
such time be extended for a period of time not to exceed an additional
ninety days.
6. If the plaintiff or his attorney fails to file such affidavit the court
shall, upon motion of any party, dismiss the action against such moving
party without prejudice.
Mo. Rev. Stat. § 538.225.
“The language of section 538.225 unambiguously requires: (1) plaintiffs to file an
affidavit in medical negligence cases; and (2) trial courts to dismiss without prejudice any
such action if the affidavit is not filed.” Tracy v. SSM Cardinal Glennon Children’s
Hosp., No. 4:15-CV-1513 CAS, 2016 WL 3683000, at *2 (E.D. Mo. July 12, 2016),
appeal dismissed (Nov. 30, 2016) (citing Lang v. Goldsworthy, 470 S.W.3d 748, 751
(Mo. 2015) (en banc)).

Upon a well-taken motion under the statute, dismissal is
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mandatory, not discretionary. Thomas v. Miller, 447 S.W.3d 667 (Mo. Ct. App. 2014)
(citing SSM Health Care St. Louis v. Schneider, 229 S.W.3d 279, 281 (Mo. Ct. App.
2007)). The statute applies to dismiss Missouri state law claims involving personal injury
related to the rendering of, or failure to render, health care services brought in federal
court. See Moore v. Ernest-Jackson, 16 F. App’x 517, 518 (8th Cir. 2001).
Here, Plaintiff concedes that he has not filed the health care affidavit required by
Section 538.225. Although Plaintiff has been unable to secure the affidavits due to the
Corizon Defendants’ failure to produce any discovery to date, he has not identified any
exception to the statute’s mandate that an action be dismissed where the plaintiff has
failed to file the requisite affidavit within the time periods prescribed. 2 Therefore, the
motion to dismiss Count IV will be granted. 3 Pursuant to the statute, the dismissal is
without prejudice.
CONCLUSION
Accordingly,

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Although the statute allows the Court to give Plaintiff an extension to file the
affidavit, the statute specifically provides that such extensions are not to exceed an
additional 90 days. Mo. Rev. Stat. § 538.225(5). Here, more than 180 days have passed
since the filing of the lawsuit.
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Section 538.225 does not apply to a plaintiff’s federal constitutional claims under
42 U.S.C. § 1983. See Moore v. Ernest–Jackson, 16 Fed. Appx. 517, 518 (8th Cir. 2001)
(although prisoner’s state law claim was dismissed for failure to file health care affidavit,
his § 1983 claim for delay in providing medical care went to jury); Banks v. Jordon,
1:05CV0139 TCM, 2006 WL 2349625 (E.D. Mo. Aug. 11, 2006) (Section 538.225 did
not apply to prisoner’s claims that defendants were deliberately indifferent to serious
medical needs). Therefore, only Count IV will be dismissed.
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IT IS HEREBY ORDERED that Defendants Corizon, LLC., Reynal Caldwell,
M.D., Brenda Mallard, M.D., Fe Fuentes, M.D., Beverly Hatcher, Roschell Norton,
Richard White, Angie Wyatt, LaCinda Jones, and Danyelle Sullivan’s motion to dismiss
Count IV of Plaintiff’s second amended complaint is GRANTED. ECF No. 72.

Count

IV of Plaintiff’s Second Amended Complaint is DISMISSED without prejudice.

Dated this 19th day of July, 2018.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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