Swallow v. Corizon Health/Medical Services et al

Filing 55

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiff's Complaint 41 is DENIED. Signed by Magistrate Judge John M. Bodenhausen on 6/3/2020. (KEK)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRANDON SWALLOW,

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Plaintiff,
v.
CORIZON HEALTH, et al.,
Defendants.

No. 4:18-cv-1045-JMB

MEMORANDUM AND ORDER
This matter is before the Court upon “Defendants’ Motion to Dismiss Plaintiff’s
Complaint,” filed by defendants Dr. William McKinney, Dr. Karen Moody (f/k/a/ Dr. Karen
Duberstein), and Corizon, LLC1 (collectively “defendants”). (ECF No. 41). Defendants filed the
motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and they state they move
for the dismissal of Dr. Moody, and Count II of plaintiff’s First Amended Complaint. After filing
the instant motion, defendants filed an Answer to the First Amended Complaint. Plaintiff opposes
the motion, and has filed a memorandum in response, to which defendants replied. The matter is
now fully briefed and ripe for disposition.
Background
The background of this case is well known to the parties, and will not be fully set forth
here. However, the following is relevant to the instant motion. Plaintiff filed the two-count First
Amended Complaint on December 13, 2019. In Count I, plaintiff claims the defendants were
deliberately indifferent to his serious medical needs. In support, he alleges, inter alia, that the

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Plaintiff named this defendant as “Corizon Health, Inc.” However, defendants aver the proper name for
this defendant is “Corizon, LLC.”

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defendants failed to provide constitutionally adequate treatment for his serious medical needs, and
that he suffered numerous serious injuries as a result. Those injuries included bowel rupture,
colectomy, ileostomy, post-surgical complications, fistulas, and significant pain and suffering.
Plaintiff also alleges that during a time he was suffering from surgical wounds that would not heal
and fistulas that were profusely leaking irritating discharge containing feces into his post-surgical
wounds and burning his skin, Dr. Moody merely accused him of self-harm and bandage
manipulation. In Count II, plaintiff claims the defendants were deliberately indifferent to
unconstitutional conditions posing a substantial risk of serious harm to his future health or wellbeing. In support, he alleges, inter alia, that the defendants failed to provide things that were well
within their control to provide while his surgical wounds and fistulas profusely leaked irritating
discharge that contained feces.
In the instant motion, defendants argue that Count II should be dismissed because it is
duplicative of Count I. Defendants also argue Count II fails to state a claim upon which relief may
be granted because there are no allegations that they were personally responsible for plaintiff’s
cell conditions, clothing or linens. Defendants also argue that Dr. Moody should be dismissed from
this action because there are no allegations that she personally failed to treat plaintiff. Finally,
defendants ask the Court to dismiss claims brought pursuant to the Fourteenth Amendment. The
Court will address defendants’ arguments in turn.
Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss filed pursuant to Rule 12(b)(6), “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 Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A plaintiff “must include sufficient factual information to provide the
‘grounds’ on which the claim rests, and to raise a right to relief above a speculative level.” Schaaf
v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555
& n.3). This obligation requires plaintiffs to plead “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
When considering a motion to dismiss, a court accepts as true all of the factual allegations
contained in the complaint, even if it appears that “actual proof of those facts is improbable,” and
reviews the complaint to determine whether its allegations show that the pleader is entitled to
relief. Id. at 555–56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true all of
the allegations contained in a complaint does not apply to legal conclusions, however. See Iqbal,
556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice”); see also Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th
Cir. 2009) (en banc) (to survive a motion to dismiss, “a civil rights complaint must contain facts
which state a claim as a matter of law and must not be conclusory.”).
Discussion
Defendants contend that Count II should be dismissed because it is duplicative of Count I.
In support, defendants argue that “the claim of deliberate indifference to serious medical needs is
inclusive of Plaintiff’s Count II allegations of deprivation of life’s necessities, specifically the
deprivation of necessary and adequate medical care.” (ECF No. 41 at 2). Defendants contend that
the “humane conditions of confinement” required by the Eighth Amendment “encapsulates a
variety of basic necessities” including medical care, and “Plaintiff’s Count II alleging ‘deprivation
of the minimal civilized measure of life’s necessities’ is not a separate cause of action under the
Eighth Amendment.” (ECF No. 42 at 3) (emphasis in original). In response, plaintiff argues that

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while Counts I and II both arise under the Eighth Amendment, they are distinct claims requiring
distinct offers of proof.
Defendants’ arguments are not well taken. While a claim asserting deliberate indifference
to a serious medical need is indeed a subcategory of conditions of confinement claims, bringing
such a claim does not render other conditions of confinement claims duplicative. The Eighth
Circuit has provided the following guidance:
The Eighth Amendment requires prison officials to provide humane conditions of
confinement, and “[o]ne condition of confinement is the medical attention given to
a prisoner.” Weaver v. Clarke, 45 F.3d 1253 (8th Cir.1995) (citing Wilson v. Seiter,
501 U.S. 294, 303, 111 S. Ct. 2321, 2326–27, 115 L. Ed.2d 271 (1991)). A claim
asserting deliberate indifference to a prisoner’s serious medical need is thus best
characterized as falling within a specific subcategory of conditions of confinement
claims, not as a separate and distinct legal theory. “Deliberate indifference” is part
of the legal standard used to assess the claim as made.
The type of proof necessary to prove a particular type of conditions of confinement
claim depends on the harm that the inmate alleges. See Hudson v. McMillian, 503
U.S. 1, 8, 112 S. Ct. 995, 1000, 117 L. Ed.2d 156 (1992) (“What is necessary to
show sufficient harm for purposes of the Cruel and Unusual Punishments Clause
depends on the claim at issue”). When the condition of confinement at issue relates
to a prisoner’s medical condition, “a prison official violates the Eighth Amendment
by being deliberately indifferent either to a prisoner’s existing serious medical
needs or to conditions posing a substantial risk of serious future harm.” Weaver, at
1255. Thus, when an inmate . . . alleges deliberate indifference to current existing
health problems, instead of his future health, the inmate must prove deliberate
indifference to a serious medical need. See id. When the inmate asserts that there
will be harm to his future health or well-being, the inmate must satisfy the more
general conditions of confinement test. See id.
Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995). Here, plaintiff alleges the defendants are
responsible for two forms of harm. In Count I, he alleges the defendants were deliberately
indifferent to his serious medical needs, and in Count II, he alleges they were deliberately
indifferent to conditions posing a substantial risk of serious harm to his future health or well-being.
The fact that plaintiff included the language “deprivation of the minimal civilized measure of life’s
necessities” in the title of Count II does not demand the conclusion that Counts I and II are
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duplicative. Count II is not needlessly repetitive of Count I, and plaintiff is entitled to present
evidence in support of both.
Defendants also contend that Count II should be dismissed because it fails to state a claim
upon which relief may be granted. In support, defendants argue that there are no allegations they
were responsible for plaintiff’s clothing or linens or general prison cell conditions. However,
plaintiff is not alleging that the defendants failed to give him clothing or linens, or failed to ensure
his cell was clean. As plaintiff argues, the First Amended Complaint sufficiently alleges that
despite being aware of his needs and living conditions, the defendants failed to provide things that
were well within their control to provide, thereby causing or at least contributing to
unconstitutional conditions that jeopardized his health and well-being. Count II adequately states
a claim against the defendants.
Next, defendants contend that Dr. Moody should be dismissed from this action because
there are no allegations she was personally involved in denying plaintiff care. They argue that
plaintiff’s allegations amount to disagreement with Dr. Moody’s medical opinion that he was
engaging in self-harm, and they stress the fact that plaintiff received medical care. In response,
plaintiff argues that he sufficiently alleged that it was Dr. Moody’s inaction that constitutes
deliberate indifference.
Defendants’ arguments are not well taken. “Mere proof of medical care” is insufficient to
disprove deliberate indifference to serious medical needs. Allard v. Baldwin, 779 F.3d 768, 772
(8th Cir. 2015) (citing Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990)). See also Langford v.
Norris, 614 F.3d 445, 459-60 (8th Cir. 2010) (establishing a claim of deliberate indifference does
not require a prisoner to show a total deprivation of medical care). A plaintiff can show deliberate
indifference to serious medical needs in different ways, including showing gross incompetence or

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grossly inadequate care, intentional delay of or denial of access to medical care, or that the
defendant took an easier, less efficacious course of treatment. Allard, 779 F.3d at 772 (citations
omitted).
Here, as plaintiff contends, he alleged that during a time he was experiencing post-surgical
complications including surgical wounds that would not heal, fistulas that profusely leaked
irritating discharge containing feces, pain, swelling, burns on his skin, and other symptoms, Dr.
Moody knew about his “complex medical history and related complaints,” but her “only response
was to accuse Plaintiff of rubbing feces in his wound and manipulating his bandages.” (ECF No.
48 at 8). As plaintiff contends, by doing so Dr. Moody arguably masked his true medical needs
and caused a delay and/or a denial of care, among other things. Defendants are not entitled to the
dismissal of Dr. Moody at this time.
Finally, defendants seek dismissal of plaintiff’s claims brought pursuant to the Fourteenth
Amendment. In support, defendants correctly argue that plaintiff’s claims are most appropriately
brought pursuant to the Eighth Amendment. In response, plaintiff avers he did not bring separate
claims under the Fourteenth Amendment, but instead brought them pursuant to 42 U.S.C. § 1983.
In reply, defendants correctly argue that § 1983 provides no substantive rights, and that to state a
claim under § 1983, a plaintiff must establish, inter alia, the violation of a right secured by the
Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). While defendants
have correctly observed that plaintiff’s claims are appropriately analyzed under the Eighth
Amendment, the First Amended Complaint does not bring free-standing claims under the
Fourteenth Amendment, plaintiff has stated he brings no claims under the Fourteenth Amendment,
and it is sufficiently clear that plaintiff’s claims will be analyzed under the Eighth Amendment.
There is therefore no need to enter an order of partial dismissal at this time.

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Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Complaint
(ECF No. 41) is DENIED.
Dated this 3rd day of June, 2020.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

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