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Roberts v. Lombardi

United States District Court, E.D. Missouri, Southeastern Division

August 27, 2014

KYLE A. ROBERTS, Plaintiff,
GEORGE A. LOMBARDI, et al., Defendants.


STEPHEN N. LIMBAUGH, Jr., District Judge.

Currently pending in this prisoner's 42 U.S.C. ยง 1983 matter are several motions to dismiss the Third Amended Complaint: defendant Richard Graham's Motion to Dismiss (#83), defendant Gregory Pernoud's Motion to Dismiss (#96), defendant George Lombardi's Motion to Dismiss (#110), and defendants Corizon Health Inc. ("Corizon"), Ernest Jackson, DMD, Institutional Dental Services, P.C. ("JIDS"), Ernest Jackson, Richard Jones, and Stephanie Novak's Motion to Dismiss (#116). The motions have been fully briefed and are now ripe for disposition.

I. Background

Plaintiff Kyle Roberts is currently incarcerated at Potosi Correctional Center ("PCC") in Mineral Point, Missouri. Before being relocated, Roberts was an inmate at Crossroads Correctional Center ("CCC"), South Central Correctional Center ("SCCC"), and Southeast Correctional Center ("SECC").

The following facts, as taken from the complaint, are presumed true for the purpose of the pending motions to dismiss. On or around August 5, 2010, at SECC, another inmate assaulted plaintiff and broke plaintiff's jaw. Plaintiff was taken to the emergency room and treated by medical staff. His jaw was set and wired shut. After plaintiff's jaw was wired shut, he complained to the medical staff at SECC about continued jaw pain. After correctional center staff and medical center staff ignored plaintiff's complaints regarding his jaw pain, plaintiff removed the wiring from his jaw.

Plaintiff's incarceration records show he was previously diagnosed as suffering from paranoid schizophrenia, a condition that defendants, as well as the Missouri Department of Corrections, SECC, CCC, PCC, and SCC were aware of at the time of plaintiff's medical treatment.

On or around August 27, 2010, defendant dentist (and Corizon and/or JIDS employee) Dr. Jones examined plaintiff and saw that the wires had been removed. Dr. Jackson - another dentist and chief executive officer of JIDS - instructed Dr. Jones to refer plaintiff to Dr. Pernoud, an oral surgeon. Dr. Jones recommended that plaintiff's jaw be retreated, and that request was approved.

Dr. Jones, Corizon, and JIDS scheduled plaintiff's appointment with Dr. Pernoud for September 7, 2010. During this week-and-a-half delay, plaintiff alleges he was in continuous and ongoing pain and that his jaw "healed" out of alignment. On September 7, 2010, Dr. Pernoud examined plaintiff and diagnosed that his jaw was "grossly displaced" and "in need of" oral surgery. Dr. Pernoud spoke with Dr. Jackson about the need for additional treatment and noted "decision pending." Specifically, Dr. Pernoud reported plaintiff required "open reduction internal fixation" ("ORIF"), which requires open surgery, and "inter maxillary fixation" ("IMF"), which is a procedure for stabilizing broken bones allowing them to heal in the proper position.

Plaintiff alleges that Drs. Pernoud and Jackson deliberately delayed approving plaintiff's surgery. During this time, plaintiff's jaw continued to "heal" incorrectly and out of alignment. Dr. Jones and Dr. Russell Graham (a medical doctor employed by Corizon who is not a defendant in this case) examined plaintiff and reviewed his medical file multiple times after September 7, 2010, each time noting they were awaiting instructions from Dr. Pernoud and Dr. Jackson regarding plaintiff's treatment. Dr. Jones and Dr. Russell Graham were aware that plaintiff needed surgery during this delay. Dr. Russell Graham's assessment on September 8, 2010, stated "Assessment[:] Mandibular fractures, w/fragment separation - Needs ORIF."

On September 17, 2013, Dr. Russell Graham recorded that he "spoke with Dr. Jackson in the central office today. [H]e informed me that Dr. [Pernoud] will be doing the ORIF of R mandibular fx in this patient."

On October 29, 2010, Dr. Jones requested another referral to an oral surgeon stating: "Dr. [Russell] Graham has not heard from Dr. Jackson or Pernoud about what to do with [patient] concerning jaw fracture. [Patient] last saw Dr. Pernoud on 09/07/10." The "Request Comments" dated November 1, 2010, stated, "Need more information: What are you requesting? Please call Dr. Jackson to discuss case if urgent." The referral request was denied.

Finally, on November 4, 2010, Dr. Jones spoke with Dr. Jackson about plaintiff's need for surgery. Plaintiff alleges that Dr. Jackson, Dr. Jones, and Nurse Novak agreed to prevent plaintiff from receiving needed surgery to save expense to JIDS, Corizon, and the Missouri Department of Corrections.

Dr. Jackson, with the knowledge that plaintiff is a paranoid schizophrenic, instructed Dr. Jones to speak with plaintiff and "ask if he wants further surgery or not." Dr. Jackson further instructed Dr. Jones that, if plaintiff wanted surgery, Dr. Jones was to "place referral" for the surgery, and if plaintiff did not want further surgery, Dr. Jones was to get plaintiff "to sign refusal."

At an appointment on November 5, 2010, Dr. Jones represented to plaintiff that plaintiff had to decide immediately whether he would undergo the needed surgery. The urgency confused plaintiff, and he stated that he wanted to think about the surgery. Dr. Jones refused to allow plaintiff an opportunity to evaluate his options. Plaintiff requested more time to evaluate his options. Dr. Jones then directed Nurse Novak to join the meeting and explained that plaintiff had two options: (1) surgery right then; or (2) sign a medical refusal.

Plaintiff says he made clear that he did not want to refuse surgery, and instead wanted an opportunity to consider the risks associated with surgery and evaluate whether he wanted to go through the pain of another surgery. Rather than giving plaintiff an opportunity to make an informed decision, Dr. Jones and Nurse Novak signed a refusal form over plaintiff's protest. Plaintiff never signed the refusal form. Plaintiff alleges that Dr. Jones and Nurse Novak's execution of the refusal form over plaintiff's protest precluded plaintiff from obtaining surgery.

Dr. Jackson directed Dr. Jones and Nurse Novak's actions in furtherance of JIDS's and Corizon's internal procedures, policies, standard operating procedures, and/or customs of denying inmates needed treatment for their serious medical needs in order to save money. Plaintiff alleges that Dr. Jackson specifically instructed Dr. Jones not to provide plaintiff with an opportunity to consider his options and evaluate whether he wanted to have surgery.

Plaintiff contends that defendants' denial of plaintiff's treatment was motivated by financial motives rather than addressing plaintiff's serious and painful jaw deformity. Plaintiff further believes that defendants' denial of his treatment was motivated by the fact that his behavior as a paranoid schizophrenic required his treatment be conducted with greater care and at a greater expense to defendants Corizon and JIDS.

Plaintiff says he has continued to seek treatment since then, but defendants continue to refuse. Medical staff indicated to plaintiff that surgery is still a medical possibility, yet they have not offered the surgery or performed it. Plaintiff continued to submit medical services requests ("MSRs") to request the repair of his jaw. Dr. Jones addressed plaintiff's requests on December 3, 2010, and referred him to Dr. Jackson for a reevaluation of plaintiff's treatment options. Dr. Jackson again referred plaintiff to Dr. Pernoud for evaluation. Plaintiff arrived at Dr. Pernoud's office for a consult, but Dr. Pernoud refused to see plaintiff, stating he "did not want to see this offender due to the extensive procedure that needs to be done on this offender."

Plaintiff then saw defendant specialist Dr. Richard Graham on December 28, 2010, who evaluated plaintiff's jaw. Although he noted the deformity of plaintiff's jaw, he stated it "will probably resolve itself somewhat with time." Dr. Richard Graham stated that he saw no reason plaintiff needed surgery.

Plaintiff continued to file MSRs to request the surgery that Dr. Pernoud had determined was "needed" to repair plaintiff's jaw. X-ray technician Kent McNutt x-rayed plaintiff's jaw on August 16, 2011. The x-ray report noted "[t]he examination shows lucency through the right mandibular angle consistent with ununited or incompletely united fracture... fracture right mandibular angle showing incomplete bony union. CT or panorex studies may be helpful for further assessment if warranted."

To address that x-ray, plaintiff returned to Dr. Richard Graham on September 27, 2011. With the knowledge that plaintiff's jaw was "ununited or incompletely united, " Dr. Richard Graham continued to refuse surgery. When plaintiff asked Dr. Richard Graham why surgery could not be performed, Dr. Richard Graham told him "that it is not necessary and that if he will be patient, he will find that it will resolve hopefully, with time."

Plaintiff states that his painful jaw deformity did not correct itself. Records show objective signs of deformity that were observed after he was transferred to CCC on March 6, 2012. A nurse at CCC noted that plaintiff complains of "significant jaw pain, which seems to be affecting his ...

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