United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This removed matter is before the Court on motions to dismiss filed by each of the defendants. Plaintiff Donovan Davis asserts state law claims of medical malpractice and negligent supervision and five counts under 42 U.S.C. § 1983. The defendants are St. Louis County, Missouri, St. Louis University, Erica P. Criss, APN, Fred Rottnek, M.D., and Mary V. Hastings, M.D. For the following reasons, the Court will grant the defendants' motions to dismiss Counts I and II without prejudice; and grant the motions to dismiss plaintiff's § 1983 claims.
On March 1, 2013, plaintiff was transferred from the St. Louis City Department of Corrections to St. Louis County for the purpose of incarceration at the St. Louis County Jail. Plaintiff is a Type 1 diabetic, and at the time of the transfer was using an insulin pump, a device that connects directly into the body and delivers insulin on a continuous basis. Plaintiff alleges that defendant Criss ordered his insulin pump removed from his body, defendant Rottnek ordered that he not be given insulin until his levels could be established, and that jail personnel failed to monitor his blood sugar level and provided him a high-carbohydrate and high-sugar diet with no alternative offered.
The complaint alleges that plaintiff's blood sugar level was tested at 3:00 p.m. on March 1, 22013 and was found to be 223, above normal, but he was not given any insulin. By 2:30 a.m. on March 3, 2013, plaintiff was vomiting and said he felt his blood sugar was elevated. Plaintiff's blood sugar was checked and found to be 388. Plaintiff was transferred to the jail infirmary and given insulin and IV fluids by order of defendant Hastings, but continued to exhibit excessively high blood sugar levels, lethargy and nausea. At 11:45 p.m. on March 3, 2013, defendant Hastings ordered that plaintiff be transferred to the hospital by ambulance "non-emergently." On March 4, 2013, plaintiff was admitted to the intensive care unit of St. Louis University Hospital with an admitting diagnosis of diabetic ketoacidosis, a life-threatening condition. Plaintiff was hospitalized for three days.
Plaintiff alleges that defendant Criss was an employee and/or agent of St. Louis County. Complaint, ¶ 6. Plaintiff alleges that St. Louis University is a research university that "had an agreement, relationship, contract or association with St. Louis County, Missouri, regarding the care and treatment of detainees and inmates" in the county's control. Id., ¶¶ 7-8. Plaintiff alleges that defendants Rottnek and Hastings are doctors who are agents or employees of St. Louis University, id., ¶¶ 9-10, who acted "under the direction and control" of St. Louis University through its agreement with St. Louis County. Id., ¶ 36.
II. Legal Standard
As a threshold matter, defendants Rottnek and Hastings filed a Joint Answer to plaintiff's First Amended Complaint (Doc. 8), before filing their motions to dismiss, and defendant St. Louis University also filed an Answer (Doc. 31) prior to filing its motions to dismiss. A Rule 12(b)(6) motion technically cannot be filed after an answer has been submitted, see Fed.R.Civ.P. 12(b). Rule 12(h)(2) provides, however, that a defense of failure to state a claim upon which relief can be granted may be raised in a motion for judgment on the pleadings under Rule 12(c). The Court will therefore construe these defendants' motions to dismiss as motions for judgment on the pleadings under Rule 12(c). See Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). The distinction is "purely formal" as a motion under Rule 12(c) is reviewed under the standards that govern a Rule 12(b)(6) motion. Westcott, 901 F.2d at 1488.
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff "must include sufficient factual information to provide the grounds' on which the claim rests, and to raise a right to relief above a speculative level." Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires a plaintiff to plead "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. A complaint "must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562 (quoted case omitted). This standard "simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the claim or element]." Id. at 556.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in the complaint, even if it appears that "actual proof of those facts is improbable, " id. at 556, and reviews the complaint to determine whether its allegations show that the pleader is entitled to relief. Twombly, 550 U.S. at 555-56; Fed.R.Civ.P. 8(a)(2). The principle that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, however. Iqbal, 556 U.S. at 678 (stating "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice"). Although legal conclusions can provide the framework for a complaint, they must be supported by factual allegations. Id.
To survive a motion to dismiss, "a civil rights complaint must contain facts which state a claim as a matter of law and must not be conclusory." Gregory v. Dillards, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (quotation marks and citation omitted).
[A] plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims rather than facts that are merely consistent with such a right. While a plaintiff need not set forth detailed factual allegations or specific facts that describe the evidence to be presented, the complaint must include sufficient factual allegations to provide the grounds on which the claim rests. A district court, therefore, is not required to divine the litigant's intent and create claims that are not clearly raised, and it need not conjure up unpled allegations to save a complaint.
Id. (quotation marks and internal citations omitted).
A. Plaintiff's State Law Claims are Subject to Dismissal for Failure to File Health Care Affidavit Required by § 538.225, Mo. Rev. Stat.
Defendants Rottnek, Hastings, St. Louis University, St. Louis County, Missouri and Criss move to dismiss plaintiff's state law medical malpractice claim and negligent supervision claims in Counts I and II, asserting that plaintiff has failed to file an affidavit stating he has obtained the written opinion of a legally qualified health care provider that the defendant health care providers failed to use such care as a reasonably prudent and careful health care provider would have used under similar circumstances, and that such failure directly caused or contributed to the damages he claims.
Section 538.225, Missouri Revised Statutes (2000), requires a plaintiff to file an affidavit attesting to the merits of any action against a health care provider. Devitre v. Orthopedic Ctr. of St. Louis, LLC, 349 S.W.3d 327, 331 (Mo. 2011) (en banc). The relevant portions of section 538.225 provide:
1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff's attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.
5. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days.
6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice.
§ 538.225, Mo. Rev. Stat.
Missouri courts apply a two-part test to determine whether a plaintiff is required to file a health care affidavit under the statute. Devitre, 349 S.W.3d at 331-32. First, it must be determined whether the relationship between the parties is that of health care provider and recipient. Id . Second, it must be determined whether the true claim relates solely to the provision of health care services. Id. at 332; Crider v. Barnes-Jewish St. Peters Hosp., Inc., 363 S.W.3d 127, 130 (Mo.Ct.App. 2012). "This analysis applies regardless of how the plaintiff characterizes his or her claims." Devitre, 349 S.W.3d at 331-32 (internal citation and quoted case omitted).
Here, the first part of the test is met, as there is no dispute that the relationship between the parties is that of health care providers and recipient. The second part of the test is also met. Count I, for medical malpractice, relates solely to the provision of health care services. Count II, for negligent supervision, also relates solely to the provision of health care services. Plaintiff's claim for negligent supervision is based on the defendants' actions as previously described in Count I, "includ[ing] but not limited to the decision and/or policy to remove an insulin pump from a type 1 diabetic individual[.]" Complaint at 6, ¶ 31.
"Section 538.225.6 of the statute requires the trial court to dismiss the action without prejudice, upon motion of [a] party, if the plaintiff does not file a health care affidavit." Thomas v. Miller, 447 S.W.3d 667 (Mo.Ct.App. 2014). Upon a well-taken motion under the statute, dismissal is mandatory, not discretionary. Id . (citing SSM Health Care St. Louis v. Schneider, 229 S.W.3d 279, 281 (Mo.Ct.App. 2007)). Here, plaintiff concedes that he has not filed the health care affidavit required by § 538.225. The motions to dismiss Counts I and II must therefore be granted. Pursuant to the statute, the dismissal is without prejudice. Because Counts I and II must be dismissed for failure to comply with § 538.225, the Court does not reach the defendants' additional arguments in support of the dismissal of Count II.
B. Plaintiff's Claims Under 42 U.S.C. § 1983
Counts III through VII of the complaint assert claims under 42 U.S.C. § 1983. These counts are duplicative and not a model of pleading clarity. The Court will describe the essential parts of the complaint's allegations and address some preliminary issues to make its analysis more clear.
Count III is titled "Violations of 42 U.S.C. § 1983 Refusing or Neglecting to Prevent." Count III is directed against all of the defendants and alleges that defendant Criss was acting under the direction of defendant St. Louis County (the "County"), and that defendants Rottnek and Hastings were acting under the direction of defendant St. Louis University ("SLU") "by and through the agreement, relationship, contract or association with St. Louis County." Complaint, ¶ 36. Plaintiff then alleges that the County, "[a]cting under color of law and pursuant to official policy or custom" "knowingly, recklessly or with gross negligence failed to instruct, supervise, control and discipline on a continuing basis Defendants Criss and other employees involved in the supervision of Plaintiff in their duties to refrain from:
a. unlawfully discriminating against Plaintiff because of his disability;
b. engaging in a course of conduct which physically injured plaintiff by the failure to provide proper diet, medical care and medical supplies;
c. conspiring to violate the rights, privileges and immunities guaranteed to the Plaintiff by the Constitution and laws of the State of Missouri."
Complaint, ¶ 37. Using similar language, plaintiff alleges that SLU, acting under color of state law and pursuant to official policy or custom, failed to instruct, supervise, control and discipline defendants Rottnek and Hastings with respect to the same conduct. Id., ¶ 38. Plaintiff then concludes that the defendants' deliberate indifference to his serious medical needs deprived him of his rights ...