HANSON v. CORRECTIONAL HEALTH PARTNERS LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

RONALD HANSON, )

)

Plaintiff )

)

v. ) 1:19-cv-00393-JDL

)

CORRECTIONAL HEALTH )

PARTNERS, LLC, et al., )

)

Defendants )

RECOMMENDED DECISION ON MOTIONS TO DISMISS

In this action, Plaintiff, a former inmate at the Kennebec County Correctional

Facility, alleges that Defendants violated his constitutional rights and his rights under state

and federal law when medical treatment was administered to him performed at the jail on

October 2, 2015. (Complaint, ECF No. 1.) The matter is before the Court on the motions to

dismiss of Defendants Correctional Health Partners, LLC, Jeff Archambeau, Dr. Jennifer

Mix, Dee Butler, and Dr. Teresa Mayer (collectively, the “CHP Defendants”) and, separately,

of Defendant Kimberly Vigue. (Motions, ECF Nos. 8, 9.)1

After review of the complaint and the parties’ submissions, I recommend the Court

dismiss the motions as moot with respect to counts 5 through 10 of Plaintiff’s complaint and

grant the CHP Defendants’ motion to dismiss any vicarious liability claim Plaintiff has

asserted against the CHP Defendants in counts 1 through 4 of the complaint.

1 Defendant Tim Canham has not yet been served with the complaint. The Court granted Plaintiff’s motion to

extend the time to complete and file proof of service on Defendant Canham (ECF No. 27) to March 14, 2020.

(ECF No. 28.)

BACKGROUND

The facts set forth below are derived from Plaintiff’s complaint. (ECF No. 1.)

Plaintiff’s factual allegations are deemed true when evaluating a motion to dismiss. McKee v.

Cosby, 874 F.3d 54, 59 (1st Cir. 2017).

Plaintiff alleges that on October 2, 2015, while he was an inmate at the Kennebec

County Correctional Facility, he was assaulted by Defendant Vigue, a nurse employed by

Defendant Correctional Health Partners, LLC2 when Defendant Vigue improperly performed

an unauthorized medical procedure on him and otherwise made offensive physical contact

and comments. (Complaint ¶¶ 35-36, 38, 40-41.) Plaintiff further asserts that as a result of

Defendant Vigue’s actions, he suffered a permanent injury. (Id. ¶¶ 44-46.)

Plaintiff asserts claims under the Civil Rights Act (42 U.S.C. § 1983) for alleged

violations of the Fourth, Eighth and Fourteenth Amendments, the Maine Human Rights Act,

the Americans with Disabilities Act, and state common law.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of “a

claim for relief in any pleading” if that party believes that the pleading fails “to state a claim

upon which relief can be granted.” In its assessment of the motion, a court must “assume the

truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable inferences

2 Correctional Health Partners, LLC is a wholly owned subsidiary of Physician Health Partners, LLC. Physician

Health Partners, LLC, which was also named as a defendant in this matter, moved to dismiss (ECF No. 12),

which motion the Court granted on November 26, 2019. (ECF No. 15.)

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therefrom.” Blanco v. Bath Iron Works Corp., 802 F. Supp. 2d 215, 221 (D. Me. 2011)

(quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To overcome the

motion, a plaintiff must establish that his allegations raise a plausible basis for a fact finder to

conclude that the defendant is legally responsible for the claim at issue. Id. The complaint

may not consist entirely of “conclusory allegations that merely parrot the relevant legal

standard.” Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). Federal Rule

of Civil Procedure 12(b)(6) “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

DISCUSSION

A. Plaintiff’s Claims in Counts 5 through 10 of the Complaint

The CHP Defendants and Defendant Vigue argue that the claims asserted by Plaintiff’

in counts 5 through 10 of his complaint—asserting claims under the Maine Human Rights

Act and Title II of the Americans with Disabilities Act, and claims for common law

negligence, assault and battery, and intentional infliction of emotional distress—are barred by

the applicable statutes of limitations. In response to the motion to dismiss, Plaintiff asks the

Court to dismiss counts 5 through 10 of his complaint without prejudice.3

3 Plaintiff objects to Defendants Vigue and Canham joining in the arguments of the CHP Defendants. (See

ECF No. 18, at 1.) As noted, Defendant Canham has not yet been served with the complaint and, therefore, he

has not appeared in this matter. Defendant Vigue, however, expressly joined in the motion to dismiss filed by

the CHP Defendants and has adopted “by reference the arguments and statements presented in the motion to

dismiss and incorporated memorandum of law filed by the CHP Defendants” with respect to counts 5-8, 10,

and 9 to the extent Plaintiff’s claim for negligent supervision, retention and training in count 9 applies to her.

(ECF No. 9 at 1-2.)

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Rule 41 of the Federal Rules of Civil Procedure permits a plaintiff to dismiss “an

action” voluntarily without a court order by filing “a notice of dismissal before the opposing

party serves either an answer or a motion for summary judgment,” or by filing “a stipulation

of dismissal signed by all parties who have appeared.” F.R. Civ. P. 41(a)(1)(A). Unless the

notice or stipulation provide otherwise, such a dismissal is without prejudice. F.R. Civ. P.

41(a)(1)(B).

Rule 41 has been construed to “only permit[] complete dismissal of an ‘action,’ not

partial dismissal of ‘fewer than all the claims.’” Featherston v. District of Columbia, 910 F.

Supp. 2d 1, 11 (D.D.C. 2011). See also Hells Canyon Preservation Council v. U.S. Forest

Service, 403 F.3d 683, 687 – 90 (9th Cir. 2005) (plaintiff cannot dismiss even with court

approval fewer than all claims under Rule 41(a)(2)); Sudnick v. Dep’t of Defense, 474 F.

Supp. 2d 91, 95 n.3 (D.D.C. 2007) (Rule 41 “cannot be invoked to eliminate ‘fewer than all

of the claims against any particular defendant’” (quoting 8 Moore’s Federal Practice §

41.21[1] (3d ed. 1997)). Because Plaintiff seeks to dismiss only particular counts of his

complaint against defendants who would remain in the case, he cannot voluntarily dismiss

the claims.

Plaintiff’s request to dismiss certain claims can properly be considered as a request to

amend his complaint. See Featherston, 910 F. Supp. 2d at 11. The Court “should freely give

leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). That is, in “the absence

of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the

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part of the movant, … undue prejudice to the opposing party …, [or] futility …, the leave

sought should, as the rules require, be ‘freely given.’” Forman v. Davis, 371 U.S. 178, 182

(1962). This case is at a relatively early stage. In fact, because the CHP Defendants moved

to dismiss and because Defendant Canham has not yet been served, the Court has not issued a

scheduling order. Under the circumstances, the Court discerns no reasonable basis to deny

Plaintiff the opportunity to amend his complaint. Accordingly, the Court grants Plaintiff

leave to amend and Plaintiff’s complaint is amended to remove counts 5 through 10.

B. Plaintiff’s Claims Against the CHP Defendants

Plaintiff in part alleges the CHP Defendants are “vicariously liable” for the conduct of

Defendant Vigue. (Complaint ¶¶ 62, 71, 81, 90.) However, “[g]overnment officials may not

be held liable for the unconstitutional conduct of their subordinates under a theory of

respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Accordingly, to the

extent Plaintiff assert claims against the CHP Defendants based on vicarious liability,

dismissal of the claims is appropriate.

Plaintiff’s allegations against the CHP Defendants, however, are not limited to a claim

of vicarious liability. He also asserts a supervisory liability claim. Plaintiff alleges that the

CHP Defendants had (1) a custom and practice of granting Defendant Vigue unspecified

“special privileges” (Complaint ¶ 29); (2) a custom and practice that allowed Defendant

Vigue and CHP staff to violate the federal and state rights of inmates (id. ¶ 48); (3) a policy,

custom and practice of failing to train CHP staff, including Defendant Vigue, on protecting

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inmates’ federal and state rights (id. ¶¶ 49, 61, 70, 80, 89); and (4) a custom and practice that

enabled Defendant Vigue to disregard Plaintiff’s rights (id. ¶ 59). Plaintiff also alleges “CHP

staff … knew [Defendant] Vigue was abusing inmates.” (Complaint ¶ 51.)

Plaintiff asserts his claims pursuant to 42 U.S.C. § 1983, which provides

Every person who, under color of any statute, ordinance, regulation, custom, or

usage . . . subjects, or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law . . . .

42 U.S.C. § 1983. Section 1983 “‘is not itself a source of substantive rights,’ but merely

provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver,

510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

To maintain a claim under section 1983, a plaintiff must establish: “1) that the conduct

complained of has been committed under color of state law, and 2) that this conduct worked a

denial of rights secured by the Constitution or laws of the United States.” Barreto-Rivera v.

Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999). To the extent Plaintiff asserts a § 1983

claim against an individual defendant, Plaintiff’s allegations must support a finding that the

individual, through his or her individual actions, violated Plaintiff’s constitutional rights.

Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009). In other words, each defendant is entitled to

an individualized assessment as to whether Plaintiff has asserted an actionable claim against

that defendant.

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“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead

that each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Id. “This does not mean, however, that for section 1983 liability

to attach, a supervisor must directly engage in a subordinate’s unconstitutional behavior.”

Guadalupe-Baez v. Pesquera, 819 F.3d 509, 515 (1st Cir. 2016). “[L]iability may attach ‘if a

responsible official supervises, trains, or hires a subordinate with deliberate indifference

toward the possibility that deficient performance of the task eventually may contribute to a

civil rights deprivation.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009)

(quoting Camilo–Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999)); see also Pineda v.

Toomey, 533 F.3d 50, 54 (1st Cir. 2008) (liability for “supervisory encouragement,

condonation or acquiescence or gross negligence amounting to deliberate indifference”

toward unconstitutional conduct of others).

To succeed on a theory of deliberate indifference, a plaintiff must show (1) a grave

risk of harm, (2) the defendant’s actual or constructive knowledge of that risk, and (3) the

defendant’s failure to take easily available measures to address the risk. Figueroa-Torres v.

Toledo-Davila, 232 F.3d 270, 279 (1st Cir. 2000). Deliberate indifference “is a stringent

standard of fault, requiring proof that a [government] actor disregarded a known or obvious

consequence of his action.” Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397,

410–11 (1997). In addition to showing deliberate indifference, “[c]ausation remains an

essential element,” which “contemplates proof that the supervisor's conduct led inexorably to

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the constitutional violation.” Guadalupe-Baez, 819 F.3d at 515. “That is a difficult standard

to meet but far from an impossible one. . .” Id. Isolated instances of unconstitutional activity

ordinarily will not suffice, but “a plaintiff may, for example, prove causation by showing

inaction in the face of a ‘known history of widespread abuse sufficient to alert a supervisor to

ongoing violations.’” Id. (quoting Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576,

582 (1st Cir.1994).

Here, Plaintiff has satisfied the pleading requirement for a supervisory claim. For

instance, he has alleged that Defendant Vigue was under the supervision of the CHP

Defendants, and that Defendant Vigue “was permitted to intimidate and instill fear upon

inmates to force them to comply with [her] orders.” (Complaint ¶ 39.) Plaintiff also asserts

that the CHP Defendants “fostered a custom and policy that failed to train” the CHP

Defendants in the administration of medication and use of force. (Id. ¶ 50.) He further

alleges that “CHP staff walked away and failed to intervene even though they knew

[Defendant Vigue] was abusing inmate rights.” (Id. ¶ 51.) In short, Plaintiff’s allegations are

sufficient to state an actionable claim against the CHP Defendants.

CONCLUSION

Based on the foregoing analysis, I grant Plaintiff’s request to amend his complaint to

remove counts 5 through 10 of his complaint. I also recommend that the Court dismiss as

moot Defendant Vigue’s motion to dismiss (ECF No. 9), and the CHP Defendants’ motion to

dismiss (ECF No. 8) counts 5 through 10 of the complaint. I further recommend the Court

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grant the CHP Defendants’ motion to dismiss Plaintiff’s claims of vicarious liability, but

otherwise permit Plaintiff to proceed on the claims asserted against the CHP Defendants in

counts 1 through 4 of the complaint.

NOTICE

Any objections to the order granting Plaintiff’s request for leave to

amend his complaint shall be filed, in accordance with Federal Rule of Civil

Procedure 72, within 14 days of being served with a copy of the order.

A party may file objections to those specified portions of a magistrate

judge’s report or proposed findings or recommended decisions entered

pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district

court is sought, together with a supporting memorandum, within fourteen (14)

days of being served with a copy thereof. A responsive memorandum shall be

filed within fourteen (14) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of the right to

de novo review by the district court and to appeal the district court's order.

/s/ John C. Nivison

U.S. Magistrate Judge

Dated this 28th day of February, 2020.

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