Davis v. Mercy Medical Center of Oshkosh Inc et al

Filing 75

ORDER Denying Defendant Hunt's Motion to Dismiss 46 , Denying as Moot Plaintiff's Motion to Dismiss EMTALA Claim 48 , Denying Plaintiff's Motion to Appoint Counsel 49 , Denying Plaintiff's Motion to Appoint Counsel 52 , Granti ng Defendant Mercy Medical's Motion to Seal Document 62 , Granting in Part and Denying in Part Plaintiff's Motion for Extenison of Time or in the Alternative Recruitment of Counsel 64 , Denying Plaintiff's Motion to Appoint Counsel/Dismiss/Stay 68 , and Directing Plaintiff to File Response to Mercy Medical's Motion to Dismiss by 6/13/14 signed by Judge Charles N Clevert, Jr on 5/13/14. (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JEFFREY M. DAVIS, JR.,
Plaintiff,
v.

Case No. 13-CV-365

MERCY MEDICAL CENTER OF OSHKOSH, INC.,
and ALINA HUNT,
Defendants.

ORDER DENYING DEFENDANT HUNT’S MOTION TO DISMISS (DOC. 46),
DENYING AS MOOT PLAINTIFF’S MOTION TO DISMISS EMTALA CLAIM (DOC. 48),
DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (DOC. 49),
DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (DOC. 52), GRANTING
DEFENDANT MERCY MEDICAL’S MOTION TO SEAL DOCUMENT (DOC. 62),
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
EXTENSION OF TIME OR IN THE ALTERNATIVE RECRUITMENT OF COUNSEL
(DOC. 64), DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL/DISMISS/STAY
(DOC. 68), AND DIRECTING PLAINTIFF TO FILE RESPONSE TO MERCY
MEDICAL’S MOTION TO DISMISS ON OR BEFORE JUNE 13, 2014
Defendant Hunt’s Motion to Dismiss
Defendant Alina Hunt has filed a motion to dismiss the remaining state law medical
negligence claim against her pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(h)(3). (Doc. 46.) Hunt contends that there are no circumstances that will overcome the
rebuttable presumption that this court should relinquish its supplemental jurisdiction over
plaintiff’s sole state law claim. She further asserts that the statute of limitations has not run
on that state law claim, substantial judicial resources have not been committed to this case
which is still in the initial pleading stage, and it is not absolutely clear how the state claim
will be decided. In response, plaintiff contends that filing a separate suit in state court is
not in the interest of any party given that the facts alleged in this case are very similar to

the EMTALA claims against defendant Mercy Medical Center of Oshkosh, Inc. (Mercy
Medical).
A district court has original jurisdiction “of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A district court also
has supplemental jurisdiction over any claim that is “so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy.” 28 U.S.C.
§ 1367(a). A district court may decline to exercise supplemental jurisdiction over a state
law claim if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367(c).
Hunt contends that the court should dismiss the state law claim against her because
the federal claim against her was dismissed and cites to 28 U.S.C. § 1367(c). However,
a federal claim against Mercy Medical remains in the case and that 28 U.S.C. § 1367(c)
is not triggered. See Hansen v. Bd. of Trs. of Hamilton SE Sch. Corp., 551 F.3d 599, 60708 (7th Cir. 2008) (district court’s discretion to relinquish jurisdiction under § 1367(c)(3) was
never triggered, because the court did not dismiss all claims over which it has original
jurisdiction.) Consequently, the court must reject Hunt’s argument and deny her motion
to dismiss.

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Plaintiff’s Motion to Dismiss EMTALA Claim Against Defendant Hunt
Plaintiff has filed a motion to dismiss the EMTALA claim against defendant Hunt.
(Doc. 48.) However, this claim was dismissed earlier. (Court’s Order of August 28, 2013.)
Therefore, plaintiff’s motion is moot.
Defendant Mercy Medical’s Motion to Dismiss
Mercy Medical has filed a motion to dismiss for failure to state a claim upon which
relief may be granted. See Fed. R. Civ. P. 12(b)(6). (Doc. 55.) Mercy Medical contends
that plaintiff’s EMTALA claims should be dismissed and that the court should relinquish its
supplemental jurisdiction over the state law medical negligence claim.
With regard to the EMTALA claims, the complaint alleges that plaintiff attempted
suicide on January 5, June 26, August 29, and September 13, 2012. After each suicide
attempt, he was transported to Mercy Medical where he was treated by a physician.
However, according to the complaint, the physicians failed to screen for and treat plaintiff’s
emergency medical and psychiatric conditions prior to discharge and transfer back to the
Wisconsin Resource Center. In addition, plaintiff alleges that his medical records from
Mercy Medical were not sent to him upon his return to the Wisconsin Resource Center.
In support of its motion to dismiss, Mercy Medical provides plaintiff’s pertinent
medical records which show that he was admitted for treatment on January 5, June 6, and
September 13-14, 2012, and that the EMTALA claims as to those dates should be
dismissed as a matter of law. According to Mercy Medical, these medical records1 show

1

The m edical records are referenced in the com plaint and central to plaintiff’s claim s. Thus, they are
properly considered on the m otion to dism iss. See Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th
Cir. 2012).

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that plaintiff was medically screened and stabilized prior to his return on August 19/29,
2012. Based on the records, Mercy Medical contends that plaintiff’s EMTALA claims
should be dismissed as a matter of law.
Plaintiff has not filed a response to this motion. Instead, he filed multiple motions
to appoint counsel, as well as motions for extension of time, to stay the case, and to
dismiss the case. Although the documents identified as plaintiff’s medical records may
foreclose his EMTALA claims, plaintiff may respond to the motion to dismiss.
Defendant Mercy Medical’s Motion to Seal Document
Mercy Medical filed a motion to file documents under seal. (Doc. 62.) According
to Mercy Medical, it filed Exhibits 1A-1D (attached to Doc. 58) under seal as they contain
medical records regarding plaintiff and may be construed as confidential. Although the
medical records were filed under seal as a precautionary matter, Mercy Medical contends
that they are no longer confidential in light of plaintiff’s claims and that the documents need
not remain under seal.

Thus, Mercy Medical requested that the court permit the

documents to be filed under seal until September 25, 2013, and that if plaintiff did not
object to the documents being made available to the public by that date, then the
documents need not remain under seal.
Plaintiff did not object to Mercy Medical’s suggestion regarding treatment of his
medical records. Thus, the court will grant Mercy Medical’s motion.
Plaintiff’s Requests for Counsel, Motion for Extension of Time,
and Request to Stay or Dismiss this Action
Plaintiff has filed a motion for appointment of counsel. (Doc. 49.) He asserts that
he has a limited knowledge of the law and that he is not adept at using the computer in the
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prison’s law library and cannot effectively research the law. Plaintiff further states that he
is unable to depose defendants without an attorney. Additionally, he has been diagnosed
with mental illnesses which impede his ability to litigate this case. To that end, plaintiff
references materials attached to his supporting memorandum which indicate that in 2003
a petition for civil commitment was filed and that an individual was designated his
temporary guardian for the purpose of medical interventions. (Exh. D.) Plaintiff asserts
that he continues to be affected by the symptoms of his mental illness and has harmed
himself regularly since he was six years old. Further, plaintiff has had assistance from
other inmates with his case filings and continued assistance is not guaranteed.
Plaintiff filed another request for counsel in which he asserts that he is unable and
incompetent to effectively prosecute this case on his own. (Doc. 52.)
Plaintiff has filed a motion for extension of time to respond to defendants’ motions
to dismiss or in the alternative the recruitment of counsel. (Doc. 64.) He also suggests
that the court hold a hearing to discuss a possible stay of this action until a case he is
litigating in the Western District of Wisconsin is completed.2
Plaintiff has filed a request to dismiss this case until a time when he can litigate the
case or find someone else to assist him (Doc. 68.) He is no longer receiving assistance
from the inmate who previously helped. Plaintiff asserts that he cannot deal with the stress
2

Plaintiff’s W estern District of W isconsin case is a § 1983 civil rights action concerning his conditions
of confinem ent at Colum bia Correctional Institution. Davis v. Harding, Case Num ber 3:12-cv-00559-wm c
(W .D. W is.) In that case, plaintiff alleges that prison officials failed to prevent him from harm ing him self after
he told them he was having suicidal thoughts. On February 6, 2014, Chief United States District Judge
W illiam Conley denied in part defendants’ m otion for sum m ary judgm ent and reserved judgm ent as to the
rem aining claim s. Judge Conley recruited pro bono counsel for Davis. Davis v. Harding, 3:12-cv-00559-wm c,
at 4-5 (W .D. W is. Feb. 6, 2014) (“Given the evidence on sum m ary judgm ent that the defendant suffers from
an assortm ent of m ental illnesses, as well as other lim itations inherent with his status as an indigent inm ate,
and given that this case will proceed to trial at m inim um on the constitutional claim against defendant Harding,
it is clear that plaintiff would benefit from legal counsel.”).

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of litigation and he has already begun hurting himself due to the stress. Alternatively, he
seeks to stay the case or requests that the court recruit counsel. Defendants oppose the
request.
At this stage, plaintiff need only respond to Mercy Medical’s motion to dismiss. He
has demonstrated an ability to comprehend these proceedings and advocate for himself.
Consequently, the court finds that plaintiff is competent to respond. In addition, it is not
clear that the concern regarding self-harm is still imminent. Plaintiff made those assertions
several months ago.

Since then, counsel was recruited in his Western District of

Wisconsin case. For these reasons, the court will not recruit counsel to represent plaintiff
in this case at this time. Plaintiff is advised that if he fails to timely respond, the court will
rule on the motion without his input. Therefore,
IT IS ORDERED that defendant Hunt’s motion to dismiss (Doc. 46) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to dismiss EMTALA claim against
defendant Hunt (Doc. 48) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Doc. 49) is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Doc. 52) is
DENIED.
IT IS FURTHER ORDERED that defendant Mercy Medical’s motion to seal until
September 25, 2013 (Doc. 62) is GRANTED. Exhibits 1A-1D to the September 11, 2013,
Affidavit of Nadya E. Shewczyk (Doc. 58) shall now be unsealed.

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IT IS FURTHER ORDERED that plaintiff’s motion for extension of time or in the
alternative recruitment of counsel (Doc. 64) is GRANTED IN PART AND DENIED IN PART
as set forth herein.
IT IS FURTHER ORDERED that plaintiff shall file his response to defendant Mercy
Medical’s motion to dismiss by June 13, 2014. If plaintiff fails to respond by that date the
court will address the motion unopposed.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel/dismiss/stay
(Doc. 68) is DENIED.
Dated at Milwaukee, Wisconsin, this 13th day of May, 2014.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. District Judge

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