Simmons v. Corizon Health, Inc., 1:14cv730.

122 F.Supp.3d 255

Glenda S. SIMMONS, as Guardian and Conservator of Bryan O'Neil Simmons, Calvin C. Simmons, as Guardian and Conservator of Bryan O'Neil Simmons, Bryan O'Neil Simmons, and Tiffany Simmons, Plaintiffs,

v.CORIZON HEALTH, INC., Corizon, LLC, B.J. Barnes, in his official capacity as Sheriff of Guilford County, North Carolina, Guilford County, and The Local Government Excess Liability Fund, Inc., Defendants.

No. 1:14cv730.

United States District Court, M.D. North Carolina.

Signed Aug. 4, 2015.

Fred William Devore, III, Devore Acton & Stafford, PA, Charlotte, NC, for Plaintiffs.

Mark E. Anderson, Justin D. Howard, McGuireWoods LLP, Raleigh, NC, James Demarest Secor, III, Law Office of J.D. Secor, III, William L. Hill, Frazier Hill & Fury, RLLP, Greensboro, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Plaintiffs Glenda, Calvin, Bryan, and Tiffany Simmons bring suit against Defendants Corizon Health, Inc., Corizon, LLC (collectively "Corizon"); B.J. Barnes, Sheriff of Guilford County, Guilford County (the "County"), and the Local Government Excess Liability Fund, Inc. ("LGELF") (collectively "Guilford Defendants"), for alleged violations of Bryan Simmons' constitutional rights pursuant to 42 U.S.C. § 1983, as well as for violations of North Carolina law. Before the court are two motions: (1) all Defendants move to dismiss several of Plaintiffs' claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ; and (2) the Guilford Defendants also move to dismiss several claims pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons set forth below, the motions will be granted in part and denied in part.

I. BACKGROUND

The allegations of the amended complaint, viewed in the light most favorable to Plaintiffs, as nonmoving parties, are as follows:

The County contracted with Corizon to provide medical care to inmates housed in the County jail. (Doc. 20 ¶ 100.) Under the contract, Corizon was to provide "24 hour emergency medical care, 7 days a week to all inmates," "meet or exceed the written directives of the Guilford County Health Services Director," and "meet or exceed" the standards of the National Commission on Correctional Health Care ("NCCHC"). (Id. ¶¶ 101–03.) Plaintiffs allege that Corizon violated multiple provisions of the contract and the NCCHC standards. (Id. ¶¶ 104–10.) They further allege that, under the contract, Corizon was obligated to pay for the cost of any hospital care inmates received. (Id. ¶ 68.)

On September 4, 2012, Bryan Simmons (hereafter "Bryan") was incarcerated in the County jail on a probation violation with a release date of December 3, 2012. (Id. ¶ 2.) In November, however, he began complaining about severe stomach pain, constipation, a distended stomach, and vomiting blood. (Id. ¶ 4.) Bryan made both the jailers and Corizon's medical staff aware of his medical complaints, and his bloody vomit was readily apparent to "the Defendants." (Id. ¶ 43.) On November 22, 2012, Corizon nurses took a sample of Bryan's blood, sent it to a laboratory for testing, and administrated certain laxatives. (Id. ¶ 48.) The results were received on or before November 24, 2012, and showed indications of intestinal bleeding and renal failure, but they were not reviewed by Corizon's jail physician until December 4, 2012. (Id. ¶¶ 49–51, 105.)

Bryan's condition worsened after November 22. On November 24, he was found unconscious on the floor of his cell with blood on his clothing and the floor. (Id. ¶ 54.) Sometime around this occurrence, he requested to be seen at a hospital, but Corizon staff denied his request. (Id. ¶ 55.) On November 30, his medical records document that he complained of sharp abdominal pain and shortness of breath. (Id. ¶ 57.) At some point, the medical records also documented "the vomiting of blood, decreased urine output and no bowel movements for two weeks." (Id. ¶ 56.) Bryan received some medication following his complaints, but who provided it is not disclosed. (Id. ¶ 57.)

On December 1, an inmate called Bryan's parents on his behalf because he was too sick to come to the phone. (Id. ¶ 58.) The inmate told his parents that he had collapsed on the floor the night before and urinated on himself. (Id. ) Later that day, Bryan was transferred to a "suicide watch" cell after a Corizon nurse and a jailer reported his having a bloody rag in his mouth and trying to "kill himself due to the pain he was experiencing." (Id.¶ 63.) That night (December 1), Corizon nurses observed Bryan with bloody vomit on his face but told him that no hospitalization was required. (Id. ¶ 64.) At some point around that time, he was placed in a wheelchair by an unspecified person because he "was unable to stand or walk without assistance." (Id. ¶ 67.)

Throughout the night of December 1 and the early morning of December 2, Bryan told County detention officers he was experiencing great stomach pain. (Id. ¶¶ 75–77.) At one point in the early morning hours, he told a County detention officer of the pain in his stomach and groin and said he believed he was "bleeding on the inside." (Id. ¶ 69.) At approximately 1:59 a.m. on December 2, a Corizon nurse checked on him. (Id. ¶ 78.) Bryan told the nurse, "I'm bleeding on the inside ... I can feel it churning." (Id. ) The Corizon nurse informed him that the doctor had been told about him but that only a doctor could send him to the hospital. (Id. ¶ 80.) Bryan continued to tell the nurse he was "bleeding on the inside" and said that he had been throwing up blood for days. (Id. ¶¶ 81–82.) When asked by the Corizon nurse how many days he had been vomiting blood, Bryan responded, "About four." (Id. ¶ 82.) The Corizon nurse told Bryan either "Survive that thing now" or "Survive the day now," followed by, "You'll be alright." (Id. ) During the same visit, and with blood covering the floor of Bryan's cell, the Corizon nurse purportedly observed, "[T]his is not fresh blood," and went on to add, "Old blood ... probably from the gastric." (Id. ¶ 85; see also id. ¶ 78 (alleging that deputies cleaned the cell floor of vomited blood while the Corizon nurse was in Bryan's cell).) The Corizon nurse concluded, "[U]lcer probably." (Id. ¶ 85.) Bryan received no further medical care and was not provided a physician consultation. (Id. ¶ 86.)

On the afternoon of December 2, Bryan again collapsed while being escorted to a cell in the medical ward. (Id. ¶ 89.) Shortly thereafter, he went into cardiac arrest caused by excessive internal bleeding from a perforated ulcer. (Id. ¶ 91.)

According to Plaintiffs, no one at the prison administered oxygen, as was required "under the arrangement with the County's Health Director," and thirty-four minutes elapsed between Bryan's collapse and the time "medical personnel" administered oxygen. (Id. ¶ 94.) Unspecified persons, however, did "eventually" perform CPR on him. (Id. ¶ 97.) But "[d]ue to the lack of oxygen to his brain, [Bryan] suffered a catastrophic hypoxic brain injury." (Id. ) Sadly, he remains "in a permanent vegetative state." (Id. ¶ 99.)

Plaintiffs allege that Corizon had a policy or custom "to outright deny medical treatment or be deliberately indifferent to the serious medical needs of" inmates at the County jail. (Id. ¶ 135.) They allege that this policy caused Bryan's current medical conditions. (Id. ¶¶ 106, 136.)

On August 26, 2014, Plaintiffs filed a complaint in this court, naming the current Defendants plus the Guilford County Sheriff's Office. (Doc. 2.) On November 4, 2014, Plaintiffs voluntarily dismissed the Sheriff's Office. (Doc. 19.) The next day, Plaintiffs filed an amended complaint, which raises six causes of action: (1) a claim under 42 U.S.C. § 1983 against the County and Sheriff B.J. Barnes in his official capacity; (2) a § 1983 claim against Corizon; (3) a State law negligence claim against all Defendants; (4) a State law negligence per se claim against Corizon; (5) a State law loss of consortium claim against all Defendants; and (6) a "claim" for punitive damages against Corizon. (Doc. 20.)

Corizon now moves to dismiss the amended complaint for failure to state a claim (Doc. 25), and the Guilford Defendants also move to dismiss for lack of personal jurisdiction and for failure to state a claim (Doc. 28). Both motions have been fully briefed and are ready for consideration.

II. ANALYSIS

A. Standard of Review Under Rule 12(b)(6)

Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Conclusory pleadings are "not entitled to the assumption of truth," id. at 679, 129 S.Ct. 1937, and mere " ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do,’ " id. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A Rule 12(b)(6) motion to dismiss "challenges the legal sufficiency of a complaint considered with the assumption that the facts alleged are true." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009) (internal citations omitted).

B. Corizon's Motion to Dismiss

1. Negligence Per Se Claim Against Corizon

Corizon first contends that Plaintiffs' negligence per se claim fails because it is not predicated on the violation of a statute or ordinance. P...