Trisler v. Prison Health Services, Inc. et al

Filing 45

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 2/28/13. Copy sent: Yes(tdai, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

JASON TRISLER,

Plaintiff,
Civil Action No. 3:11CV343-HEH
PRISON HEALTH

SERVICES, INC., etal,
Defendants.
MEMORANDUM OPINION

(Dismissing Five Unserved Defendants and Granting the
Motion for Summary Judgment by Prison Health Services, Inc. ("PHS"))

Jason Trisler, a former Virginia prisoner proceeding pro se and informa pauperis,

brings this action pursuant to 42 U.S.C. § 1983.1 Trisler alleges that during his
incarceration at Haynesville Correctional Center ("Haynesville") the defendants2 failed to
ensure that he received adequate medical care for his abdominal and umbilical hernias.

The matter is before the Court on Trisler's failure to timely serve five of the defendants

1The statute provides, inpertinent part:
Every person who, undercolorof any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereofto the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law....

42 U.S.C. § 1983.

Trisler named a dozen individuals andentities as defendants in his Complaint.

and the Motion for Summary Judgment filed by PHS. PHS filed the appropriate

Roseboro4 notice for its Motion for Summary Judgment. (ECF No. 22.) Nevertheless,
Trisler failed to file a response. These matters are ripe for disposition.
I. Failure to Serve Five of the Defendants

Under Federal Rule of Civil Procedure 4(m),5 Trisler had 120 days from filing to
serve the defendants. Here, that period commenced on March 23, 2012.6 By
Memorandum Order entered on March 23,2012, the Court attempted to serve the

defendants in the present action. As pertinent here, Trisler asserted that PHS employed
Defendants Omezie S. Ajumobi, Richard B. Johnson ("R. Johnson"), Konrad Jarratt,
Nurse Jane Doe, and Utilization Manager John Doe. (Compl. ffl| 7-9, 11, & 12.) Trisler

directed that service should be effected for the above defendants by serving the registered
agent for PHS. (Id. at 1-2.) Accordingly, the Marshal attempted to serve Defendants

3"PHS was the primary operating subsidiary ofits parent corporation, America Service
Group, Incorporated, and after the parent company merged with Valitas Health Services, Inc.,
PHS' legal name was changed to Corizon Health, Incorporated, on June 3,2011." (PHS' Mem.
Supp. Summ. J. 1 n.2.) For the sake of consistency, the Court will refer to PHS by its former
name.

4Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

5Rule 4(m) provides, in pertinent part:
If a defendant is not served within 120 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).

6The Court considers the complaint "filed" on the date itconcludes statutory screening
under the Prison Litigation Reform Act. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).
2

Ajumobi, R. Johnson, Jarratt, Jane Doe, and John Doe by serving the registered agent for
PHS. (ECFNo. 17.)

On April 13, 2012, PHS filed a motion for summary judgment. In the
Memorandum in Support of the Motion for Summary Judgment, PHS informed Trisler

that Defendants Ajumobi, R. Johnson, Jarratt, Jane Doe, and John Doe were not
employees or agents of PHS, therefore the registered agent for PHS "was not authorized
to accept service on behalf of these ... Defendants and doing so was inadvertent." (PHS'

Mem. Supp. Mot. Summ. J. 1-2 n.3.)
More than 120 days elapsed and Trisler failed to properly serve Defendants
Ajumobi, R. Johnson, Jarratt, Jane Doe, and John Doe. Accordingly, by Memorandum

Order entered on September 25, 2012, the Court directed Trisler, within fifteen (15) days
of the date of entry thereof, to show good cause why all claims against Defendants

Ajumobi, R. Johnson, Jarratt, Jane Doe, and John Doe should not be dismissed.7 Trisler
failed to respond to the September 25, 2012 Memorandum Order. Accordingly, all
claims against Defendants Ajumobi, R. Johnson, Jarratt, Jane Doe, and John Doe will be
dismissed without prejudice.
II. Standard for Summary Judgment
Summary judgment must be rendered "if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

7Courts have found good cause to extend the 120-day time period when the plaintiffhas
made "'reasonable, diligent efforts to effect service on thedefendant.'" Venable v. Dep 't of
Corr., No. 3:05cv821,2007 WL 5145334, at *1 (E.D. Va. Feb. 7, 2007) (quotingHammad v.
Tate Access Floors, Inc., 31 F. Supp. 2d 524,528 (D. Md. 1999)).

of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the

responsibility of informing the Court of the basis for the motion and identifying the parts
of the record which demonstrate the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, All U.S. 317, 323 (1986). "[W]here the nonmoving party will

bear the burden of proof at trial on a dispositive issue, a summary judgment motion may
properly be made in reliance solely on the pleadings, depositions, answers to
interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted).
When the motion is properly supported, the nonmoving party must go beyond the
pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for
trial.'" Id. (quoting former Fed. R. Civ. P. 56(c), (e) (1986)).

III. Motion for Summary Judgment Filed by PHS
In his Complaint, Trisler claims PHS failed to provide him with adequate medical

during his incarceration atHaynesville.8 Specifically, as relevant here, Trisler contends
that PHS contracted with the Virginia Department of Corrections ("VDOC") "to provide
health care to inmates under the custody of the VDOC at certain VDOC facilities. PHS is

also under contract with the VDOC to provide utilization management concerning

medical care for offenders at all VDOC facilities." (Compl. 16.) Trisler claims that by

virtue of these contractual obligations, PHS bears responsibility for the inadequate
medical care he received while incarcerated at Haynesville.

8The relevant period stretches from March 22,2007 to May 7, 2009. (Compl. ffll 19, 82.)

PHS moves for summary judgment on the grounds that it had no relevant contract
for providing medical care to Trisler during the period alleged in the Complaint. In
support of their motion for summary judgment, PHS tendered the declaration of James
Patrick Tinney, the Regional Vice President of PHS. (PHS' Mem. Supp. Mot. Summ. J.
Ex. 1 ("Tinney Decl.").) Trisler's failure to respond to PHS' Motion for Summary
Judgment permits the Court to rely solely on the submissions of PHS in deciding the
Motion for Summary Judgment. See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)

('"Rule 56 does not impose upon the district court a duty to sift through the record in

search of evidence to support a party's opposition to summary judgment.'" (quoting

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 &n.7 (5th Cir. 1992))).9 Accordingly,
the following facts are established for the Motion for Summary Judgment filed by PHS.

9The Court notes that Trisler swore to the truth ofthe contents ofhis Complaint.
(Compl. 27.) Nevertheless, the facts offered by an affidavit or a sworn statement must be in the
form of admissible evidence. See Fed. R. Civ. P. 56(c)(4). In this regard, the statement in the
affidavit or sworn declaration "must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiantor declarant is competentto testify on the
matters stated." Id. Moreover, "summaryjudgment affidavits cannot be conclusory or based
upon hearsay." Evansv. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996)
(internal citations omitted); Hogge v. Stephens, No. 3:09CV582,2011 WL 2161100, at *2-3
& n.5 (E.D. Va. June 1, 2011) (treating statements sworn to under penalty of perjury, but made
upon information and belief, as '"mere pleading allegations'" (quoting Walker v. Tyler Cnty.
Comm'«, 11 F. App'x 270,274 (4th Cir. 2001))). The pertinent allegations in Trisler's
Complaint about the contractual relationship of the VDOC and PHS and the responsibility of
PHS for his health care run afoul of these proscriptions. (See, e.g., Compl. ffi| 6, 69-71.)
Nevertheless, no need exists to catalog the entirety of inadmissible evidence previously
submitted by Trisler because he fails to cite the Court to any evidence, such as his Complaint,
that he wishes the Court to consider in opposition to the Motion for Summary Judgment. See
Fed. R. Civ. P. 56(c)(3) (emphasizing that "[t]he court need consider only the cited materials" in
deciding a motion for summary judgment).

A.

Summary of Pertinent Facts

"In 2006, PHS entered into an agreement with the Commonwealth of Virginia to
provide health care services and utilization management services to inmates housed in
five (5) correctional facilities operated by the [VDOC] beginning on May 1, 2006. This

contract period ended on October 31, 2011." (Tinney Decl. ^f 5.) Haynesville "was not
one of the five facilities at which PHS was under contract to provide medical services or
utilization management services." (Id.)

"At no time did ... PHS provide medical services or utilization management
services to inmates at Haynesville ...." (Id. ^ 6.) "PHS has [n]ever hired or retained
any employees or independent contractors to provide health care services at
Haynesville ... during the time relevant to [Trisler's] claims." (Id.) "[N]o ... PHS

employees have ever provided care for Mr. Trisler's hernia condition during the period of
November 2007 through 2009." (Id.)

Trisler names the following individuals as agents or employees of PHS: Omezie
S. Ajumobi, M.D., Richard S. Johnson, M.D., Konrad Jarratt, M.D., Nurse Jenkins, Nurse

Elam and Defendants "Jane Doe" and "John Doe." (Compl. ffl| 7-12.) "These named
Defendants were not employees, agents or independent contractors of PHS ... at

Haynesville ... at times relevant to [Trisler's] claims." (Tinney Decl. 1} 7.) PHS had no

contract with the VDOC "to provide any medical services or utilization management
services at... Haynesville ... during the time relevant to Plaintiffs claims. Therefore,

no agent, contractor, or employee of... PHS rendered any medical care to [Trisler]."
(Id 1 8.)
6

B.

Analysis

Trisler claims thatthe inadequate provision of medical care by PHS at Haynesville
violatedhis federal constitutional rights and a variety of state laws.

(Compl.

ffl 134-38.) Trisler, however, fails to direct the Court to any evidence thatdemonstrates
PHS bore any responsibility for his medical careat Haynesville. Accordingly, Trisler's
claims against PHS will be dismissed with prejudice. PHS' Motion for Summary
Judgment (ECF No. 23) will be granted.

An appropriate Order shall accompany this Memorandum Opinion.

m

Date: Kt>2^2«/1

Isl

HENRY E. HUDSON

UNITED STATES DISTRICT JUDGE

Richmond, Virginia

10

For example, Trisler asserts:

137. The defendants' action or inaction as stated in paragraphs 134 through 136
above constituted the state law tort of civil conspiracy, gross negligence, breach
of contract, and intentional infliction of emotional distress.
138. By enacting and implementing the Utilization Management provision of
OP 720.2 which instructs an offender's treating physician that "DO NOT write in
the medical record 'Request denied by UM', Please use terms such as 'alternative
treatment

recommended,'" the defendants actions constituted the state tort of

actual or constructive fraud.

(Id. H 137,138.)