Opinion
Civil Action No. 1:05-cv-3074-GET.
July 14, 2006
ORDER
The above-styled matter is presently before the court on:
(1) Defendants Carlo Musso and Georgia Correctional Health, LLC ("GCH")'s motion to dismiss [docket no. 6];
(2) Plaintiff's first motion for leave to amend his complaint [docket no. 20].
Plaintiff filed the instant action on December 2, 2005, asserting claims for injuries sustained when he was attacked by another inmate while incarcerated in the Clayton County jail. Defendants are the current and immediate predecessor of the Sheriff of Clayton County, deputies and other employees of the Office of Sheriff of Clayton County, GCH, and GCH employees. GCH was allegedly under contract with Clayton County to provide medical services to inmates. Plaintiff contends that defendants failed to recognize the threat posed by the inmate who attacked plaintiff, and failed to give plaintiff proper medical care in violation of 42 U.S.C. § 1983 and the Georgia Constitution. Plaintiff also asserts a state law negligence claim. On December 27, 2005, defendants GCH and Musso filed a motion to dismiss. On February 6, 2006, plaintiff filed a motion for leave to amend the complaint.
Motion to Amend
Standard
Pursuant to Rule 15 of the Federal Rules of Civil Procedure, the plaintiff may amend its pleading once as a matter of course before a responsive pleading is served and otherwise only by leave of the court. Fed.R.Civ.P. 15(a). Under Rule 15, leave of court to file such amended pleadings "shall be freely given when justice so requires." This decision is within the sound discretion of the trial court. See Jameson v. Arrow Co., 75 F.3d 1528, 1534 (11th Cir. 1996). The United States Supreme Court has expressly held that absent undue delay, bad faith, dilatory motive, or other inappropriate conduct, the court should allow leave to amend the relevant pleadings. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962).Discussion
Defendants GCH and Musso already have filed a responsive pleading in the form of a motion to dismiss pursuant to 12(b)(6). Accordingly, plaintiff may only amend its complaint with leave of the court. Plaintiff seeks to amend the complaint in order to correct a typographical error and to clarify his claims against the medical provider defendants, including GCH and Mr. Musso. Plaintiff contends that: (1) GCH and Mr. Musso will suffer no prejudice because the amendment does not add claims; (2) he is not acting in bad faith; (3) amendment is not futile; (4) there was no undue delay. Defendants GCH and Mr. Musso did not file a response addressing plaintiff's arguments.Having read and considered plaintiff's motion to amend, the court finds that there has been no bad faith or other inappropriate conduct, nor will there be undue prejudice or delay by granting plaintiff's motion. The motion for leave to amend was filed approximately two months after the complaint was filed, and several months of discovery remain. Further, Local Rule 7.1B requires that "any party opposing a motion shall serve the party's response . . . nod later than ten (10) days after service of the motion," and further provides that, "[f]ailure to file a response shall indicate that there is no opposition to the motion." LR 7.1B, ND Ga. As of the date of this order, defendants GCH and Musso have not responded to plaintiff's motion for leave to amend, which included a certificate of service. Accordingly, and for all the aforementioned reasons, plaintiff's motion for leave to amend the complaint [docket no. 20] is hereby GRANTED on the merits and as unopposed. The subsequent discussion of GCH and Mr. Musso's motion to dismiss is based on allegations contained in the amended complaint.
Motion to Dismiss
Plaintiff asserts claims against defendants GCH and Musso for deprivation of life, liberty and property pursuant to Section 1983, a claim under the Georgia Constitution for abuse of a prisoner, and a state law claim of negligence. Defendants GCH and Musso argue that each fails to state a claim and must therefore be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
Standard
A motion to dismiss under Rule 12(b) (6) attacks the legal sufficiency of the complaint. It is viewed with disfavor and rarely granted. See e.g., Int'l Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968). A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove no set of facts entitling him to relief. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229 (1984); Pataula Elec. Membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir. 1992). The court is to presume true all of the complaint's allegations and make all reasonable inferences in favor of the plaintiff. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). The rules require nothing more than "a short and plain statement" that will give the defendant fair notice of the claims and the grounds upon which they are based.Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957).
Discussion
Defendants GCH and Musso contend that plaintiff cannot state a claim for any of his asserted causes of action. The court will address each claim in turn.
First, GCH and Musses contend that plaintiff's Section 1983 claim must fail against both defendants. Initially, the court must determine the appropriate standard for pleading the instant claims. Plaintiff argues that defendants GCH and Musso seek to apply a heightened pleading standard to plaintiff's section 1983 claims that requires more than Fed.R.Civ.P. 8's "short and plain statement of the claim" to withstand a motion to dismiss. The heightened pleading standard does not apply to civil rights cases brought against health care facilities contracting with municipalities. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164, 113 S.C. 1160 (1993); Swarm v. S. Health Partners, Inc., 388 F.3d 834, 836 (11th Cir, 2004). Accordingly, this court applies the regular notice pleading standard when evaluating plaintiff's claims against GCH.
However, a heightened pleading requirement may apply to claims against individual defendants who may assert qualified immunity.Swann, 388 F.3d at 838. In order to withstand a motion to dismiss, a complaint alleging a violation pursuant to Section 1983 must plead a constitutional deprivation of rights, that a specific defendant caused the violation, and that the defendant was consciously or callously indifferent to the prisoner's constitutional rights. Zatler v. Wainwright, 802 F.2d 397, 400-401 (11th Cir. 1986) (citing 8th Circuit case finding that deliberate indifference to constitutional right could be shown by reckless disregard of prisoner's right to be free from violent attacks by fellow inmates).
Regarding defendant Musso, defendants GCH and Musso contend that the complaint contains no allegations against him, and particularly does not specify what conduct by Mr. Musso allegedly caused harm or how that conduct caused harm. Plaintiff admits that in the initial complaint, Mr. Musso was only mentioned as a registered agent for service on defendant GCH. However, plaintiff's amended complaint contains the following allegations: Mr. Musses acted within the scope of his employment at GCH during the underlying events; Mr. Musso, as the administrator of the contract to provide medical services, was directly responsible for providing plaintiff with medical care; plaintiff was attacked while in the Clayton County jail by an inmate that Mr. Musso should have known had a serious mental illness; Mr. Musso failed to attend plaintiff's medical needs though plaintiff complained to his jailers of excruciating pain; Mr. Musses was inadequately trained to provide medical care; and as a result of the attack and failure to treat, plaintiff was injured, deprived of his right to life, liberty and property, and subject to punishment without due process of law. The court finds that plaintiff's complaint alleges that plaintiff sustained a constitutional deprivation in the form of an injury by another inmate; that Mr. Musso had a duty to provide medical care to inmates; and that plaintiff's constitutional deprivation resulted from Mr. Musso's failure to correctly identify another inmate as a risk and to treat plaintiff after his attack. This is sufficient to state a claim under Section 1983. See Zatler, 802 F.2d at 400-401.
Defendants GCH and Musso also contend that plaintiff's Section 1983 claim against GCH does not state a claim. Both parties agree that GCH should be treated as a municipality, and is therefore liable under § 1983 only for acts for which it is actually responsible. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691-694, 98 S. Ct. 2018 (1978); Swann, 388 F.3d at 837 (a private entity that contracts with a county to provide medical services to inmates is treated as a municipality). Therefore, "when execution of a [the entity]'s policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy, inflicts the constitutional injury . . . [the] entity is responsible under § 1983." Monell, 436 U.S. at 694; McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Accordingly, plaintiff must identify a policy or custom that caused his injury. McDowell, 392 F.3d at 1290. In order to survive a motion to dismiss, the complaint need only allege that a policy or custom of the entity caused the injury. Duran v. City of Satellite Beach, 2005 WL 2129300 (M.D. Fla. 2005) (allegation that plaintiff sustained injuries from employees who violated his rights while acting pursuant to official custom or policy is sufficient).
Defendants GCH and Musso contend that plaintiff's complaint did not contain any allegations that GCH acted pursuant to policy or custom. However, the amended complaint alleges that: "the duly elected Sheriff of Clayton County and Defendant GCH, adopted a formal or informal policy which gave rise to the violation of the Plaintiff's civil right to be free from these Defendants deliberate in [sic] indifference to the Plaintiff's serious medical needs." Plaintiff further alleges that his "injury was the result of GCH['s] failure to train and inadequacy of training evidencing deliberate indifference to the rights of its citizens, including the Plaintiff, resulting in a formal or informal policy or custom by virtue of which the Plaintiff was injured. The deficiency in training caused Plaintiff's injury." Having reviewed the complaint, the court finds that plaintiff has sufficiently alleged that defendant GCH violated his rights pursuant to a policy or custom to survive defendant's motion to dismiss.
Defendants GCH and Musso also seek dismissal of plaintiff's state constitutional and negligence claims. Initially, defendants GCH and Musso argue that the court should decline pendent jurisdiction over the state law claims if it dismisses the federal claims. Since the federal claims have not been dismissed, the court need not consider that argument.
Defendants GCH and Musso also contend that plaintiff's complaint has not stated claims on either state law basis against either GCH or Mr. Musso. They argue that plaintiff has not stated a claim for unconstitutional abuse of a prisoner or negligence against Mr. Musso because there is an absence of any allegation pertaining to him. However, as stated earlier, although Mr. Musso was only mentioned as a registered agent for service in the initial complaint, the amended complaint contains several allegations regarding Mr. Musso. Relating to the claim that Mr. Musso abused a prisoner in violation of the Georgia Constitution, the complaint alleges: Musso had the obligation to provide medical services to plaintiff pursuant to a contract with GCH; Musso should have known that the inmate who attacked plaintiff had serious mental illness; Musso failed to attend plaintiff's medical needs despite plaintiff's complaints to his jailers of excruciating pain; "Musso['s] unlawful actions constitute an abuse of a prisoner in violation of Article I, Section I, Paragraph 17 of the Constitution of the State of Georgia" and "as a direct result . . . Plaintiff was deprived of his constitutional right to be free from such abuse." Likewise, the complaint contains several allegations concerning Mr. Musso's negligence, including that Mr. Musso owed a duty of care to plaintiff to ensure he was provided with minimally adequate medical care but negligently failed to do so. Although more specificity in pleading is desirable, defendants have cited the courtt to no caselaw requiring more in order to withstand a motion to dismiss. Accordingly, the court finds that the complaint contains sufficient allegations in order for plaintiff's state law claims against Mr. Musso to survive the motion to dismiss.
Plaintiff also asserts claims for abuse of a prisoner in violation of the Georgia Constitution and negligence against defendant GCH. Defendants GCH and Musso argue that these claims should be dismissed because they are premised on respondeat superior. Because the "alleged negligence occurred in Georgia, we look to Georgia's law of respondeat superior." Bennett v. U.S., 102 F.3d 486, 489. "Georgia courts will hold an employer responsible for the conduct of its employee if the employee acted in the course of the employer's business and with a desire to benefit the employer." Bennett, 102 F.3d at 489. Defendants argue that because there are insufficient allegations to support a claim against Mr. Musso, the employee, there is no statement of a claim against GCH. However, the court has found that the complaint contains sufficient allegations to avoid dismissal on the constitutional claim against Mr. Musso, so defendants' argument must fail.
Defendants GCH and Musso also contend that plaintiff fails to allege that Mr. Musso was acting in the scope of his duties at the time of any purported unlawful act. However, the amended complaint alleges that "[a]t all times relevant to the Complaint in this case, Defendant Carlo Musso was acting within the scope of his employment as an employee of Defendant Georgia Correctional Health, LLC as the administrator of the contract to provide medical health services." Because defendant has identified no other reason for the court to dismiss plaintiff's state law claims against GCH, and the complaint contains an allegation that Mr. Musso was acting within the scope of his duties, the claim survives defendants' motion to dismiss.
Accordingly, and for all the aforementioned reasons, defendants GCH and Musso's motion to dismiss [docket no. 6] is hereby DENIED.
Summary
(1) Defendants Carlo Musso and GCH's motion to dismiss [docket no. 6] is hereby DENIED;(2) Plaintiff's first motion for leave to amend his complaint [docket no. 20] is hereby GRANTED.
SO ORDERED.