United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion to dismiss Count IV
of Plaintiff's second amended complaint filed by
Defendants Corizon, LLC., Reynal Caldwell, M.D., Brenda
Mallard, M.D., Fe Fuentes, M.D., Beverly Hatcher, Roschell
Norton, Richard White, Angie Wyatt, LaCinda Jones, and
Danyelle Sullivan (hereafter referred to as “Corizon
Defendants”). For the reasons set forth below, the
motion will be granted.
filed this pro se prisoner civil rights action on July 18,
2016. ECF No. 1. On November 10, 2016, the Court granted
Plaintiff's request to appoint counsel, and on January 2,
2018, counsel filed an amended complaint. ECF No. 54. The
amended complaint contains allegations under 42 U.S.C. §
1983 for violations of the Eighth Amendment and
Plaintiff's right to due process, as well as a state law
claim for negligence. On January 23, 2018, the Corizon
Defendants filed their joint answer and affirmative defenses.
ECF No. 60.
Corizon Defendants now move to dismiss Plaintiff's
Missouri state law negligence claim contained in Count IV,
which alleges that Plaintiff was a patient of the Corizon
Defendants, who breached their duty to provide reasonable
medical care and treatment for Plaintiff's right rotator
cuff tear. In their motion to dismiss, the Corizon Defendants
assert that Plaintiff failed to file the requisite expert
affidavit within the time limits set by Missouri statute.
Plaintiff responds that filing the affidavit has been
impossible due to the Corizon Defendants' own
unwillingness to provide Plaintiff with their Rule 26
disclosures or other discovery.
plaintiff to survive a motion to dismiss, “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 Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. The reviewing
court must accept the plaintiff's factual allegations as
true and construe them in the plaintiff's favor, but the
court is not required to accept the legal conclusions the
plaintiff draws from the facts alleged. Id.;
Retro Television Network, Inc. v. Luken Commc'ns,
LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).
538.225, Missouri Revised Statutes, 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.
Mo. Rev. Stat. § 538.225.
language of section 538.225 unambiguously requires: (1)
plaintiffs to file an affidavit in medical negligence cases;
and (2) trial courts to dismiss without prejudice any such
action if the affidavit is not filed.” Tracy v. SSM
Cardinal Glennon Children'sHosp., No.
4:15-CV-1513 CAS, 2016 WL 3683000, at *2 (E.D. Mo. July 12,
2016), appeal dismissed (Nov. 30, 2016) (citing Lang v.
Goldsworthy, 470 S.W.3d 748, 751 (Mo. 2015) (en banc)).
Upon a well-taken motion under the statute, dismissal is
mandatory, not discretionary. Thomas v. Miller, 447
S.W.3d 667 (Mo.Ct.App. 2014) (citing SSM Health Care St.
Louis v. Schneider, 229 S.W.3d 279, 281 (Mo.Ct.App.
2007)). The statute applies to dismiss Missouri state law