Montano v. Corizon, LLC et al
Filing
162
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales Granting 124 Opposed MOTION for Judgment on the Pleadings as to Count I and Granting 126 MOTION for Judgment on the Pleadings on Count II, (jjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ISAAC MONTANO,
Plaintiff,
vs.
Civ. No. 15-415 KG/LF
CENTURION CORRECTIONAL
HEALTHCARE OF NEW MEXICO,
LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon “Centurion Correctional Healthcare of New
Mexico, LLC’s Opposed Motion for Judgment on the Pleadings as to Count I,” filed December
18, 2018. (Doc. 124). Pro se Plaintiff1 responded on December 31, 2018, and Defendant
Centurion Correctional Healthcare of New Mexico, LLC (Centurion) filed a reply on January 14,
2019. (Docs. 129 and 134).
Also, before the Court is “Centurion Correctional Healthcare of New Mexico, LLC’s
Motion for Judgment on the Pleadings on Count II,” filed December 19, 2018. (Doc. 126).
Plaintiff responded to that motion on January 3, 2019, and Centurion filed a reply on January 14,
2019. (Docs. 130 and 136).
Having considered both Motions for Judgment on the Pleadings, the accompanying
briefing, and the “First Amended Complaint for the Recovery of Damages Caused by the
Deprivation of Civil Rights and Injunctive Relief to Provide Medical Care” (First Amended
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Plaintiff’s counsel withdrew from the case on June 1, 2018, and Plaintiff has not retained new
counsel. See (Docs. 98 and 99).
Complaint) (Doc. 72),2 the Court grants the Motions for Judgment on the Pleadings as described
herein and will dismiss Counts I and II without prejudice. The Court further grants Plaintiff 30
days from the entry of this Memorandum Opinion and Order to file a second amended complaint
to address the deficiencies explained below.
A. The First Amended Complaint
In June 2013, Plaintiff, an inmate, alleges that his gall bladder was unnecessarily
removed. (Doc. 72) at ¶¶ 14 and 15. After the surgery, Plaintiff suffered from a myriad of
ailments including, for example, elevated bilirubin, cirrhosis, ulcerative colitis, liver injury,
ventral hernia, hives, anxiety, hepatitis C, shortness of breath, and “urinary
pressure/incontinence.” Id. at ¶¶ 25, 32, 35 40, 71, 103. Various medical specialists have treated
Plaintiff. See id. at ¶¶ 24, 35, 86, 105. Despite this treatment, Plaintiff alleges that medical
services companies contracting with the New Mexico Corrections Department failed to deliver
adequate medical care to him.
“On June 1, 2016, Centurion became the new contract provider of medical services for
all” New Mexico Corrections Department facilities. Id. at ¶ 96. Plaintiff alleges that his medical
care issues continued after Centurion became the medical provider. Plaintiff maintains that he
“has repeatedly filed grievances and medical requests regarding his various health issues.” Id. at
¶ 169. Plaintiff alleges that “Centurion has provided Plaintiff inadequate care and been
unresponsive to provider notations indicating necessary treatments, consultation follow-ups and
procedures that were necessary to be completed in a timely fashion.” Id. at ¶ 173. Plaintiff
further complains that “medical information continued to be incorrectly or inaccurately conveyed
by Centurion to consulting physicians.” Id. at ¶ 102. Plaintiff alleges that Centurion acted
2
Plaintiff’s counsel filed the First Amended Complaint.
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through its staff “and is responsible for their acts or omissions pursuant to the doctrines of
respondeat superior, agency or apparent agency.” Id. at ¶ 12.
Plaintiff brings three Counts against Centurion. In Count I, Plaintiff brings a 42 U.S.C. §
1983 claim for injunctive relief based on alleged violations of Plaintiff’s Eighth Amendment
right to adequate medical care. Plaintiff specifically seeks injunctive relief to (1) receive
transportation to timely scheduled follow-up appointments, (2) receive recommended treatments
and medications from specialists and consulting physicians, (3) receive transportation to timely
scheduled “physician-prescribed procedures,” and (4) require Centurion to properly maintain
“Plaintiff’s medical records, including the timely conveyance of complete and accurate
documentation of all relevant and actual health issues” to Plaintiff’s physicians. Id. at ¶ 186.
In Count II, Plaintiff brings another Section 1983 claim for alleged violations of the
Plaintiff’s Eighth Amendment right to adequate medical care. Plaintiff maintains in Count II that
“Centurion has perpetuated the culture of delay” by “refusing to either effectively treat Plaintiff
or to transport Plaintiff to a medical facility that could effectively treat his medical problems.”
Id. at ¶¶ 191 and 195. In Count III, Plaintiff brings state-law medical negligence claims.
B. Discussion
Centurion moves for dismissal of Counts I and II under Fed. R. Civ. P. 12(c). “A motion
for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule
12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir.
2000). A claim is subject to dismissal under Rule 12(b)(6) if it fails to state a claim upon which
relief can be granted. In ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept all
well-pleaded allegations in the complaint as true and must view them in the light most favorable
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to the plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d
810, 813 (10th Cir.1984).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege facts sufficient to
state a plausible claim of relief. Id. at 570. A claim is facially plausible if the plaintiff pleads
facts sufficient for the court to reasonably infer that the defendant is liable for the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. Rule 12(b)(6) requires that a
complaint set forth the grounds of a plaintiff's entitlement to relief through more than labels,
conclusions and a formulaic recitation of the elements of a cause of action. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Centurion argues that Plaintiff has failed to allege plausible Eighth Amendment
violations by not alleging facts which show that Centurion was deliberately indifferent to
Plaintiff’s medical needs. See Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (noting that
plaintiff may bring Eighth Amendment claim for cruel and unusual punishment based on “[a]
prison official’s deliberate indifference to an inmate’s serious medical needs” (citation omitted)).
Centurion, however, has neglected to raise more fundamental reasons for dismissing Counts I
and II under Rule 12(c). The Court will address those reasons sua sponte.3
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The Court notes that it may dismiss a claim sua sponte under Rule 12(b)(6) if “it is patently
obvious that the plaintiff could not prevail on the facts alleged, and allowing [plaintiff] an
opportunity to amend [the] complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (quotations omitted). However, “it generally is not appropriate to dismiss
claims sua sponte and partially on grounds not raised by the defendant, without an opportunity to
amend.” Summit Elec. Supply Co., Inc. v. Int'l Bus. Machines Corp., 2008 WL 11451895, at *7
(D.N.M.) (citing McKinney v. Oklahoma, Dept. of Human Svcs., 925 F.2d 363, 365 (10th Cir.
1991)).
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First, as a matter of law, Centurion, as a private corporation, “cannot be held liable solely
because it employs a tortfeasor—or, in other words ... cannot be held liable under § 1983 on a
respondeat superior theory.” Smedley v. Corr. Corp. of Am., 175 Fed. Appx. 943, 946 (10th Cir.
2005) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)); see also Iqbal, 556
U.S. at 676 (holding that “vicarious liability is inapplicable to … § 1983 suits”). Hence, any
Section 1983 claim against Centurion based on respondeat superior cannot survive a Rule
12(b)(6) motion.
Second, a private corporation, like Centurion, can only be liable under Section 1983 for
its employees’ misconduct if a plaintiff can “demonstrate the existence of the same sort of
custom or policy that permits imposition of liability against municipalities under Monell….”
Wishneski v. Andrade, 572 Fed. Appx. 563, 567 (10th Cir. 2014). See also Candelaria v. New
Mexico Dep't of Corr., 2017 WL 5634114, at *1 (D.N.M.) (acknowledging that “private
corporations like Centurion Correctional Healthcare, LLC … can only be liable under § 1983
when the corporation’s official policy or custom caused a deprivation of constitutional rights”).
“An official policy can be shown through an official decision or statement….” Ostrowski v. City
of Montrose, 655 Fed. Appx. 612, 614 (10th Cir. 2016) (citing City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988)). “A ‘custom’ has come to mean an act that, although not formally
approved by an appropriate decision maker, has such widespread practice as to have the force of
law.” Carney v. City & Cty. of Denver, 534 F.3d 1269, 1274 (10th Cir. 2008) (citation omitted).
Put another way, a custom consists of “continuing, persistent and widespread” actions by
employees. Id. (citation omitted). “In attempting to prove the existence of such a ‘continuing,
persistent and widespread’ custom, plaintiffs most commonly offer evidence suggesting that
similarly situated individuals were mistreated by the municipality in a similar way.” Id.
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In this case, Plaintiff does not allege facts in the First Amended Complaint that Centurion
employees acted pursuant to an official policy promulgated by Centurion. Furthermore,
Plaintiff’s allegations focus only on the alleged actions by Centurion employees taken against
him. Plaintiff’s allegations, even when taken as true and viewed in the light most favorable to
Plaintiff, do not extend to other similarly situated inmates in need of treatment by specialists.
See City of St. Louis v. Praprotnik, 485 U.S. 112, 128 (1988) (finding no custom existed, in part,
because plaintiff did not attempt to prove that defendant’s actions were “ever directed against
anyone other than himself”). Consequently, Plaintiff fails to allege facts which show that the
purported actions by Centurion employees constituted a “continuing, persistent and widespread”
practice or custom that had the force of a de facto policy by Centurion.
The Court concludes that Plaintiff has failed to allege facts sufficient for the Court to
reasonably infer that Centurion is liable for the alleged misconduct of its employees through
either a policy or custom. Hence, Plaintiff has not alleged sufficient facts to demonstrate a
plausible Monell claim against Centurion. Counts I and II, therefore, are subject to dismissal
without prejudice under Rule 12(c) for that reason. However, if Plaintiff wishes to proceed
against Centurion on the Section 1983 claims, the Court will permit Plaintiff to file a second
amended complaint to properly allege a Monell claim against Defendant. If Plaintiff declines to
file a second amended complaint or files a second amended complaint that similarly fails to state
Section 1983 claims against Centurion, the Court may dismiss those claims with prejudice
without further notice.
IT IS ORDERED that
1. “Centurion Correctional Healthcare of New Mexico, LLC’s Opposed Motion for
Judgment on the Pleadings as to Count I” (Doc. 124) and “Centurion Correctional Healthcare of
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New Mexico, LLC’s Motion for Judgment on the Pleadings on Count II” (Doc. 126) are granted
in that Counts I and II of the First Amended Complaint (Doc. 72) are dismissed without
prejudice;
2. Plaintiff may file a second amended complaint within 30 days of entry of this
Memorandum Opinion and Order to address the above deficiencies; and
3. if Plaintiff fails to file a second amended complaint or files a second amended
complaint that likewise fails to state Section 1983 claims against Centurion, the Court may
dismiss Counts I and II with prejudice without further notice.
________________________________
UNITED STATES DISTRICT JUDGE
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