Cano v. Denning

JESSEE SCOTT CANO, Plaintiff,

v.JOHNSON COUNTY KANSAS SHERIFF FRANK DENNING, et al., Defendants.

CIVIL ACTION No. 12-2217-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: January 25, 2013

MEMORANDUM AND ORDER

Jessee Cano brings suit against Johnson County Sheriff Frank Denning and Correct Care Solutions, LLC ("CCS") for violation of his Eighth Amendment rights under 42 U.S.C. § 1983 (Counts I and V), negligence per se (Counts II and VI), negligent supervision (Counts III and VII), and negligent training (Counts IV and VIII). Plaintiff also alleges "negligence pursuant to 1983" against the Board of Commissioners of Johnson County, Kansas in their official and individual capacities (Count IX). Each count arises from plaintiff's confinement in the Johnson County Jail and Residential Center in April and May of 2009. Plaintiff alleges that he repeatedly requested but did not receive HIV medication and that as a result he developed full-blown AIDS.

This matter is before the Court on three motions. The first is the Joint Motion To Dismiss (Doc. #5) which Sheriff Denning and the Johnson County Board of Commissioners (the "County Defendants") filed June 22, 2012. The County Defendants move to dismiss plaintiff's state law claims for lack of subject matter jurisdiction because plaintiff failed to submit a mandatory notice of claim. The County Defendants also assert that plaintiff has failed to state a claim under Section 1983. In the second motion, CCS moves to dismiss plaintiff's Section 1983 claim for failure to state a claim and his state law claims for lack of subject matter jurisdiction. Correct Care Solution'sMotion To Dismiss (Doc. #3) filed June 22, 2012. The third motion before the Court is plaintiff's Motion For Leave To Amend (Doc. #8) filed July 16, 2012. Plaintiff seeks leave to amend the complaint to remove his claim for negligence per se against Sheriff Denning and to allege that the Court has diversity jurisdiction over his other state law claims.

Legal Standards

In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible - and not merely conceivable - on its face. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.

The Court need not accept as true those allegations which state only legal conclusions. See id.; Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). Plaintiff bears the burden of framing his complaint with enough factual matter to suggest that he is entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim when he pleads factual content from which the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiff must show more than a sheer possibility that defendants have acted unlawfully - it is not enough to plead facts that are "merely consistent with" defendants' liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly, where the well-pleaded facts do not permit the Courtto infer more than the mere possibility of misconduct, the complaint has alleged - but has not "shown" - that the pleader is entitled to relief. Id. at 679. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).

Leave to amend is a matter committed to the sound discretion of the district court. See Parker v. Champion, 148 F.3d 1291, 1222 (10th Cir. 1998). Rule 15(a)(2), Fed. R. Civ. P., provides that the court should "freely give leave when justice so requires." A district court should refuse leave to amend only upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed or futility of amendment. Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010). A proposed amendment is futile if the amended complaint would be subject to dismissal. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007).

Factual Background

Frank Denning is the Sheriff of Johnson County, Kansas. He is responsible for ensuring that jail supervisors enforce jail policies and that individuals in the custody of the Sheriff's Department receive adequate medical care and medications. The Johnson County Board of Commissioners and its individual members are responsible for administration and oversight of the Johnson County Jail and the Johnson County Residential Center ("the Residential Center"). Members of the Board include Ed Eilert, C. Edward Peterson, Jim Allen, David A. Lindstrom, Jason Osterhaus, Michael Ashcraft and Calvin Hayden. Johnson County has contracted with CCS to provide healthcare for both facilities.

On or about April 17, 2010, the District Court of Johnson County, Kansas placed plaintiff inthe custody of the Johnson County Sheriff's Department for an alleged violation of probation.¹ Plaintiff spent two weeks in the Johnson County jail and then two weeks in the Residential Center. During in-take procedures at both facilities, plaintiff told the staff that he was HIV positive. CCS staff also knew of plaintiff's HIV status.² At unspecified times while he was in the jail and Residential Center, plaintiff repeatedly asked unnamed staff for prescription medications, offering to have a family member bring the medications and written prescriptions.³ Jail staff and CCS employees, however, repeatedly denied plaintiff the medicine he required to manage his HIV condition. Further, staff at the Residential Center offered plaintiff medications or multi-vitamins which his doctor had not prescribed, and these medications might have worsened his condition.

On or about May 16, 2012, plaintiff was released from the Residential Center. He resumed his usual regimen of medications, but less than one month after his release, he began to suffer life-threatening medical emergencies. Plaintiff's T-Cell count indicated that his HIV was no longer managed, and his physician diagnosed him with AIDS.

Plaintiff filed this lawsuit, asserting that he has developed AIDS and has endured numerous related illnesses, pain and suffering as a direct result of the refusal of staff at the jail, the Residential Center and CCS to provide his prescription HIV medication.

Plaintiff also alleges that Sheriff Denning violated his Eighth Amendment right to be free from cruel and unusual punishment "by substantially contributing to the failure to provide plaintiffwith adequate medical care in that [Denning's] policy of negligent or lackadaisical supervision within the Johnson County Jail significantly contributed to the complete failure of anyone in the Jail or anyone privately contracted by the jail to provide those medical services to provide Plaintiff with the medications he needed." Doc. #8-1 at 7. He further alleges that Denning's "recklessly negligent and lackadaisical environment within the Johnson County Jail amounts to a policy or practice of intentional indifference among the prison staff which resulted in jail staff or medical staff completely failing to take remedial action when prison staff is notified of specific or special medical conditions, and such policy or practice substantially contributed to the violation of the Plaintiff's constitutional right to be free from cruel and unusual punishment."

Plaintiff brings claims against CCS and Sheriff Denning for violation of his Eighth Amendment rights under 42 U.S.C. § 1983 (Counts I and V), negligence per se (Counts II and VI), negligent supervision (Counts III and VII) and negligent training (Counts IV and VIII). Plaintiff also alleges "negligence pursuant to 1983" against the Commissioners in their official and individual capacities (Count IX).

The original complaint asserts that this Court has jurisdiction under 28 U.S.C. § 1331, 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). The proposed amended complaint alleges that plaintiff is a Missouri resident, that defendants are residents of Kansas and that plaintiff seeks more than $75,000 in damages. The proposed amended complaint thus alleges that the Court has diversity jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a).

Analysis

I. Motion To Dismiss Of Correct Care Solutions

A. Violation of Eighth Amendment Right Under Section 1983 (Count V)

CCS first asserts that Count V fails to state a claim under 42 U.S.C. § 1983 because it doesnot allege a corporate custom or policy that is causally linked to an alleged constitutional injury. Specifically, CCS notes that it cannot be liable under a theory of respondeat superior and argues that the complaint fails to allege an unconstitutional policy or custom.

Section 1983 provides a cause of action against state actors for violation of a plaintiff' federal rights.⁴ Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007). Here, plaintiff seeks to allege that defendants were deliberately indifferent to his serious illness and thus violated his Eighth Amendment protection against "unnecessary and wanton infliction of pain." Estelle v. Gamble...