Taylor v. City of Carlsbad et al

Filing 254

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Jennifer M. Rozzoni re 201 MOTION to Dismiss filed by Kelly Glenn. Objections to PFRD due by 4/10/2024. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (kms)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

MICKEY RAY TAYLOR, JR.,
Plaintiff,
v.

Case 1:20-cv-00536-DHU-JMR

TREY THOMPSON, SERGEANT CASTENADA,
CORPORAL COX, SERGEANT GRIFFIN, SERGEANT
RICHARD, DIVISION CAPTAIN DOE,
CARLSBAD MEDICAL CENTER, DOCTOR KELLY
GLENN, and DOCTOR CAMILLE DOAN
Defendants.

MOTION TO DISMISS FILED BY DEFENDANTS
DR. KELLY GLENN AND DR. CAMILLE DOAN
COME NOW Defendants Dr. Kelly Glenn (“Dr. Glenn”) and Dr. Camille Doan (“Dr.
Doan, and together with Dr. Glenn, the “Moving Defendants”), by and through their attorneys,
Atwood, Malone, Turner & Sabin, P.A. (Carla Neusch Williams) and, pursuant to Fed. R. Civ.
Pro. 12(b)(6), hereby move to dismiss Plaintiff’s Amended Complaint against them, and as
grounds therefore, state:
I.
INTRODUCTION
Plaintiff filed his Amended Complaint/Supplemental Complaint and Motion for Leave to
Amend or Otherwise Supplement Additional Claims and Defendants naming Carlsbad Medical
Center and “John Doe receiving Doctor; John Doe Releasing Doctor if not same as receiving
Doctor” for the first time on August 11, 2023. [DOC 109]. On September 30, 2023, this Court
entered an Order Granting Plaintiff’s Motion to Amend Complaint. [DOC 116]. On October 20,

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2023, Plaintiff requested that John Doe Doctor #1 be replaced with Dr. Glenn and John Doe Doctor
#2 be replaced with Dr. Doan. [DOC 133]. On December 4, 2023, this Court granted Plaintiff’s
request to update the case captions with Dr. Glenn and Dr. Doan. [DOC 162]. According to the
Amended Complaint, the alleged medical malpractice/conspiracy occurred on February 3, 2019,
during an emergency room visit. [DOC 109]. In New Mexico, for medical negligence claims
against a healthcare provider not covered by the Medical Malpractice Act, there is a three yearstatute of limitations from the alleged injury or discovery of that injury. As more than three years
lapsed between the February 3, 2019, emergency room visit and Plaintiff’s Amended Complaint
[August 11, 2023], Plaintiff’s identification of John Does [October 20, 2023], and the Court’s grant
of substitution of the Moving Defendants for John Does [December 4, 2023], this Court should
dismiss Plaintiff’s claims against the Moving Defendants, with prejudice. Alternatively, Plaintiff’s
Amended Complaint against the Moving Defendants should be dismissed for failure to state a
claim.
II.
STANDARD OF REVIEW UNDER 12(B)(6)
To overcome a Motion to Dismiss, Plaintiff’s Amended Complaint must allege sufficient
facts so that relief is plausible on its face. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.
2007). In considering Defendants’ Motion, the Court must assume as true all well-pleaded facts
and must draw all reasonable inferences in Plaintiff’s favor. See Park Univ. Enters., Inc. v. Am.
Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006). Plaintiff’s Amended Complaint must have
sufficient factual matter that if true, states a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 677, 129 S. Ct. 1937 (2009). As such, a plaintiff’s “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 1964–65 (2007). Conclusory allegations are not “well-pleaded,”
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and thus are not taken as true for purposes of a Motion to Dismiss. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).

Twombly specifically warned against “wholly conclusory

statement[s],” Twombly at 1966-67. As the Tenth Circuit explained, “[t]his requirement of
plausibility serves not only to weed out claims that do not (in the absence of additional allegations)
have a reasonable prospect of success, but also to inform the defendants of the actual grounds of
the claim against them.” 519 F.3d at 1248.
III.
SUMMARY OF RELEVANT TIMES AND ALLEGATIONS IN PLAINTIFF’S
AMENDED COMPLAINT MATERIAL TO MOTION TO DISMISS
1.

Plaintiff filed his Amended Complaint/Supplemental Complaint and Motion for

Leave to Amend or Otherwise Supplement Additional Claims and Defendants naming Carlsbad
Medical Center and “John Doe receiving Doctor; John Doe Releasing Doctor if not same as
receiving Doctor” for the first time on August 11, 2023. [DOC 109].
2.

On September 30, 2023, this Court entered an Order Granting Plaintiff’s Motion to

Amend Complaint. [DOC 116].
3.

On October 20, 2023, Plaintiff requested that John Doe Doctor #1 be replaced with

Dr. Glenn and John Doe Doctor #2 be replaced with Dr. Doan. [DOC 133].
4.

On December 4, 2023, this Court granted Plaintiff’s request to update the case

captions with Dr. Glenn and Dr. Doan. [DOC 162].
5.

All of Plaintiff’s alleged claims against the Moving Defendants arise from an

alleged emergency room visit that occurred on February 3, 2019. [DOC 109, page 5].
6.

Plaintiff alleges no specific allegations against the Moving Defendants. [DOC 109,

pages 5-6]. Rather, Plaintiff alleges the following:
Clearly Culpable Thompson and Cox’s Murder Conspiracy
Machine extends to the local Hospital, who, seen by death, wrist
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burn, my resuscitation Without giving me proper treatment as I was
immediately released full-well knowing I needed more treatment
after Cardiac arrest and death long enough to soil my clothes but not
quite long enough to give me brain damage of oxygen for however
long. Hospital and receiving doctor and or releasing doctor if its not
one in the same person, is liable for its—their association with the
local policy force and Trey Thompson and Cox for clearly
providing—establish its- their showing of actual deliberate
indifference to my known medical needs that even any layman or
even a child or an incompetent could see and know that I needed for
more treatment. I suffered agonizing torture and pain for months, I
couldn’t digest properly, changed by whole life, shortened my life,
because the Hospital and its resuscitations and shot-callers would
rather Conspire with Murders who Kill people in their Mental
episodes, mental health episodes or otherwise midlife crisis, to kick
them out of the Hospitals (also from being out of state 9from) and
not a local) together with assisting to cover up official misconduct.
This evilneeds to be purged from the land. The Vig is up, officials
liability is clear here, and I cant just let this past its just too much. I
appreciate saving my life and all, but it seems it was only to protect
Murderous police officers who conspire to kill, and, not because yall
were looking out for my health, safety and general well being, Much
less to intervene and call out what had happened.
[DOC 109, pages 56].
IV.
ARGUMENT AND AUTHORITIES
A.
The Moving Defendants are entitled to dismissal of Plaintiff’s Complaint as barred by the
applicable statute of limitations for personal injury.
“The statute of limitations for personal injury is applicable to malpractice claims against a
nonqualified health care provider.” Roberts v. Sw. Cmty. Health Services, 1992-NMSC-042, ¶ 9, 114
N.M. The statute of limitations for claims against a nonqualified health care provider is governed by
NMSA 1978, § 37-1-8 (1976) (providing that actions must be brought “for an injury to the person or
reputation of any person, within three years”). Romero v. Lovelace Health Sys., Inc., 2020-NMSC-001,
¶ 14. The date Plaintiff discovered the alleged injury was on February 3, 2019 during the subject
emergency room visit. [DOC 109, pages 5-6]. The Moving Defendants were added to this lawsuit

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more than three years after the subject emergency room visit. [DOC 109, DOC 133 and DOC 162].

Accordingly, this Court should dismiss Plaintiff’s claims against the Moving Defendants, with
prejudice.

B.
The Moving Defendants are entitled to summary judgment on Plaintiff’s claim for medical
negligence for failure to state a claim.
“[T]he burden rests on the plaintiff to provide fair notice of the grounds for the claims made
against each of the defendants.” Robbins v. Williams, 519 F.3d 142, 1250 (10th Cir. 2008);
Walker v. Mohiuddin, 947 F.3d 1244, 1250 (10th Cir. 2020) (dismissing complaint against
defendant who was “barely mentioned in the complaint” and instead, was “merely lump[ed]. . . in
with fifteen other medical professionals under the generic label ‘defendants’ or ‘Corizon
healthcare providers’”); see e.g. Jones v. Lehmkuhl, No. 11-CV-02384-WYD-CBS, 2013 U.S.
Dist. LEXIS 139229, *80 (D. Colo. Apr. 16, 2013) (dismissing common law trespass claim where
complaint did “not differentiate among the various defendants or attribute specific conduct to a
particular defendant” and thus, did not contain sufficiently “particularized facts”).
In this case, while Plaintiff alleges that providers saved his life while at the same time
stating that he needed more treatment, Plaintiff’s Amended Complaint does not with particularity
identify any negligent acts or omissions specifically committed by the Moving Defendants. The
failure to do so demands dismissal of Plaintiff’s Amended Complaint against the Moving
Defendants. Id.
C.
Plaintiff’s Complaint fails to state a cause of action for civil conspiracy against the Moving
Defendants.
The elements of a civil conspiracy claim are (1) that a conspiracy between two or more
individuals existed; (2) that specific wrongful acts were carried out by the defendants pursuant to
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the conspiracy; and (3) that the plaintiff was damaged as a result of such acts. Ettenson v. Burke,
130 N.M. 67, 72, 2001-NMCA-003, ¶12, 17 P.3d 440. Again, Plaintiff not only fails to allege
with particularity that the Moving Defendants actually participated in any conspiracy, but Plaintiff
fails to identify any specific wrongful acts carried out by the Moving Defendants. Rather, Plaintiff
simply lumps all healthcare providers together and claims that a conspiracy existed. This is
insufficient and requires dismissal of Plaintiff’s Amended Complaint against the Moving
Defendants. Robbins, 519 at 1250 (10th Cir. 2008); Walker, 947 F.3d at 1250 (10th Cir. 2020)
(dismissing complaint against defendant who was “barely mentioned in the complaint” and
instead, was “merely lump[ed]. . . in with fifteen other medical professionals under the generic
label ‘defendants’ or ‘Corizon healthcare providers’”); see e.g. Jones, 2013 U.S. Dist. LEXIS
139229, *80 (dismissing common law trespass claim where complaint did “not differentiate among
the various defendants or attribute specific conduct to a particular defendant” and thus, did not
contain sufficiently “particularized facts”).
V.
CONCLUSION
For the foregoing reasons, Plaintiff’s Amended Complaint against the Moving Defendants
should be dismissed, with prejudice, as barred by the statute of limitations for personal injury.
Alternatively, Plaintiff’s Amended Complaint against the Moving Defendants should be dismissed
for failure to state a claim for relief.

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Respectfully submitted,
ATWOOD, MALONE, TURNER & SABIN, P.A.

By Electronically Filed January 29, 2024
Carla Neusch Williams
P.O. Drawer 700
Roswell, NM 88202-0700
[phone]
Attorneys for Defendants Dr. Kelly Glenn and Dr. Camille
Doan
I HEREBY CERTIFY that on January 29,
2024, I filed the foregoing instrument
electronically through the CM/ECF system,
which caused all parties of record to be
served by electronic means, as more fully
reflected on the Notice of Electronic Filing. I
further certified that I served Plaintiff
through the U.S. Mail to:
236758 Mickey Taylor
Formby Unit
998 Co. Rd. AA
Plainview, Texas 79702
Electronically Filed on 01/29/2024
Carla Neusch Williams, Esq.

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