Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CHARLES AUSTIN, Plaintiffs v. CORRECTIONAL MEDICAL SERVICES, INC., et al , Defendants. : : : : : : : : :

Civil Action No.: ____________ JURY TRIAL DEMANDED

1:08-cv-204

DEFENDANT, CORRECTIONAL MEDICAL SERVICES, INC.'S OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) ______________________________________________________________________________

Daniel A. Griffith, Esquire Attorney Bar ID No. 4209 WHITEFORD TAYLOR & PRESTON, LLC 1220 Market Street, Suite 608 Wilmington, DE 19801 (302) 482-8754 Attorneys for Defendant, Correctional Medical Services, Inc. Dated: June 16, 2008

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TABLE OF CONTENTS I. NATURE AND STAGE OF PROCEEDINGS ................................................................... 1

II. SUMMARY OF ARGUMENT.............................................................................................. 1 III. CONCISE STATEMENT OF FACTS................................................................................ 2 A. As a State Actor Providing Medical Services While "Exercising Powers Conferred On (It) Under Color of the Laws of the State of Delaware", CMS Enjoys Absolute Immunity From Plaintiffs' Federal §1983 Claims And State Law Claims For Medical Negligence............................................................................................................................... 3 CONCLUSION ............................................................................................................................. 7

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TABLE OF CITATIONS Cases Abraham v. State of Delaware Department of Corrections et al, 2007 U.S. Dist. LEXIS 98411 (De. Del. 2007) ........................................................................................................................... 4 Abraham v. State of Delaware Department of Corrections, et al................................................. 5 Castillo v. Costin, et al, 2006 U.S. Dist. L.Ed. LEXIS 21992 (D. Del. 2006) ....................... 4, 6, 7 Christopher v. Harbury, 536 U.S. 403, 406 (2002) ....................................................................... 2 Hamilton et al v. Civigenics, et al, 2005 U.S. Dist. LEXIS 2625 (D. Del. 2005) ..................... 3, 6 Hamilton, Castillo and Abraham, supra. ...................................................................................... 7 West v. Atkins, 487 U.S. 42, 48-54, 101 L.Ed. 2d 40 108 Ct. 2250 (1988) ................................... 4

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I.

NATURE AND STAGE OF PROCEEDINGS

Plaintiff is an inmate of the Howard R. Young Correctional Institution (HRYCI). Defendant/Movant, Correctional Medical Services, Inc. (CMS) provides health care services to the inmates at HRYCI pursuant to a contract between CMS and the State of Delaware Department of Corrections ("DOC"). Plaintiff's Complaint was filed on or about April 9, 2008. (D.I. 1, Exhibit "A".) As against CMS, Plaintiff's Complaint is structured as follows: the inmate has pled one claim under 42 U.S.C. §1983 for CMS' alleged failure to provide constitutionally adequate medical care in violation of the Eighth Amendment to the United States Constitution, and a second claim for medical negligence under Delaware state law, 18 Del.C. §6801 et seq. A Waiver of Service was filed on behalf of CMS on May 14, 2008. (D.I.7). This is defendant, CMS' Motion to Dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). II. SUMMARY OF ARGUMENT As correctly asserted by Plaintiff's, inasmuch as CMS was at all times providing medical services to the Plaintiff on behalf of the State of Delaware and pursuant to a contract with the State of Delaware, CMS was acting under color of state law. As such, according to a consistent body of case law from this Court, CMS is entitled to sovereign immunity to the same extent as the State of Delaware. More specifically, inasmuch as CMS' relationship with the State of Delaware compels the finding that CMS was acting under color of state law, CMS is immune from Plaintiff's 42 U.S.C. §1983 claim pursuant to the Eleventh Amendment of the United States Constitution. CMS is similarly immune from Plaintiff's state law claim for medical malpractice.

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III. CONCISE STATEMENT OF FACTS1 CMS is a corporation providing health care services to prisons and jails throughout the United States. (Exhibit "A", paragraph #6). At all times relevant to this litigation, CMS provided health care services to prisoners incarcerated at HRYCI on behalf of, and pursuant to a contract with, the State of Delaware Department of Corrections ("DOC") (Exhibit "A", paragraph 6). In their Complaint, the Plaintiff has two discrete categories of claims against CMS arising out of the medical treatment provided to him by CMS as part of CMS' employment by the State of Delaware: the inmate has pled (1) a claim under 42 U.S.C. §1983 for failure to provide constitutionally adequate medical care in violation of the Eighth Amendment to the United States Constitution; and (2) a claim for medical negligence under Delaware state law 18 Del.C. §6801 et seq. It is undisputed that, in providing medical treatment to the Plaintiff pursuant to its contract with the State of Delaware, CMS was at all time a "state actor". (See Exhibit "A", paragraph 10). In fact, Plaintiffs' Complaint relies upon this fact in alleging "at all times referred to herein, all of the Defendants were acting within the scope of their employment and/or were exercising powers conferred on them under color of the laws of the State of Delaware". (Exhibit "A", paragraph 11.)

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For purposes of this application, since this Court must accept as true all well-pled factual allegations in Plaintiffs' Complaint and view them in a light most favorable to Plaintiff, Christopher v. Harbury, 536 U.S. 403, 406 (2002), this Concise Statement of Facts is drawn directly and exclusively from Plaintiffs' Complaint.

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IV. LEGAL ARGUMENT A. As a State Actor Providing Medical Services While "Exercising Powers Conferred On (It) Under Color of the Laws of the State of Delaware", CMS Enjoys Absolute Immunity From Plaintiffs' Federal §1983 Claims And State Law Claims For Medical Negligence. The issues raised by Plaintiff's Complaint (i.e., the liability to inmates of a medical provider retained by the State of Delaware) are well known to this Court. Consistently, this Court has held that a medical treatment provider retained on behalf of the State of Delaware to treat the State's inmates is immune from liability to the inmates under the Eleventh Amendment to the United States Constitution. The public policy underlying this rule of law is one of common sense: to the extent that the medical provider is deemed to be a "state actor" and to be "acting under color of state law" sufficient for inmates to bring §1983 claims against them, the state-retained medical providers similarly enjoy the "state actor's" defenses to such claims, including sovereign immunity under the Eleventh Amendment. The issues raised by this motion are four-square with those addressed by this Court in Hamilton et al v. Civigenics, et al, 2005 U.S. Dist. LEXIS 2625 (D. Del. 2005). In Hamilton, an inmate filed an action under 42 U.S.C. §1983 on behalf of himself and allegedly similarlysituated inmates against, among other, Civigenics, a private entity which administered a drug rehabilitation program for incarcerated addicts through a contract with the State of Delaware. (In this respect, Civigenics' status is virtually identical to that of CMS in this case, inasmuch as CMS is a private company retained by contract with the State of Delaware to provide treatment to the state's inmates). In addressing Civigenics' entitlement to sovereign immunity, this Court, in language directly applicable to the claims against CMS in this litigation, held : First, Civigenics and its employees are state actors because they are employed by the State of Delaware to provide treatment to inmates and, therefore, acted under color of

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law for purposes of §1983 when undertaking their duties in treating the Plaintiffs' addictions. (See West v. Atkins, 487 U.S. 42, 48-54, 101 L.Ed. 2d 40 108 Ct. 2250 (1988) (holding that a physician who is under contract with the State to provide medical services to inmates at a stateprison hospital on part-time basis acts "under color of state law within the meaning of §1983). (See Hamilton, et al v. Civigenics, et al, attached as Exhibit "B", p. 6). This Court therefore dismissed the §1983 claims against Civigenics, concluding that "as such Civigenics and its employees are state actors and have not waived sovereign immunity. Accordingly, the Court will dismiss these Plaintiffs' claims against these Defendants in their official capacities".2 Ibid. This Court's application of sovereign immunity to claims against state-retained medical providers for inmates has been consistent since the Hamilton decision. For instance, in Castillo v. Costin, et al, 2006 U.S. Dist. L.Ed. LEXIS 21992 (D. Del. 2006) (attached as Exhibit "C"), this Court held: . . . Because (defendants) are employed by the State of Delaware to provide treatment to inmates they are state actors. As a result, for the purposes of §1983 (defendants act) under color of state law. (Citations omitted). This Court has previously determined that Civigenics, as a state actor, has not waived sovereign immunity to suits in federal court (Citations omitted). Accordingly, it is immune from suit under §1983. The claims against Civigenics, therefore, as dismissed. (See Exhibit "C", p. 2-3).

This Court reiterated these concepts just a few months ago in the matter of Abraham v. State of Delaware Department of Corrections et al, 2007 U.S. Dist. LEXIS 98411 (D. Del. 2007) (attached as Exhibit "D"). In Abraham, this Court first addressed the entitlement of the

Inasmuch as this application is brought on behalf of CMS only, there is no need to discuss any distinction between individual versus official capacity.

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State of Delaware Department of Corrections ("DOC") to immunity under the Eleventh Amendment: . . . The DOC, an agency of the State of Delaware, is named as a defendant. "Absent a state's consent, the Eleventh Amendment bars a civil rights suit in federal court that names the state as a defendant". (Citations omitted). The State of Delaware has not waived its sovereign immunity under the Eleventh Amendment. (Citations omitted). Hence, as an agency of the State of Delaware, the DOC is entitled to immunity under the Eleventh Amendment. (Citations omitted). (Exhibit "D", p. 3).

The Court next addressed the extent to which this sovereign immunity under the Eleventh Amendment extended to a medical provider retained under contract with the State of Delaware: Civigenics is also a named defendant. Civigenics and its employees are state actors because they are employed by the State of Delaware to provide treatment to inmates. As a result, for the purposes of §1983, Civigenics acts under color of state law. (Citations omitted). This Court has previously determined that Civigenics as a state actor, has not waived sovereign immunity to suits in federal court. (Citations omitted). Accordingly, it is immune from suit under §1983. (See Exhibit "D", p. 4).

The status of CMS in this litigation is so identical to that of Civigenics in these referenced cases that their names could almost be used interchangeably. Both provide medical services to inmates under contract with the State of Delaware. Civigenics' entitlement to Eleventh Amendment immunity was based upon its status as a state actor which, when providing medical treatment to inmates, acted under color of state law. See Abraham v. State of Delaware Department of Corrections, et al ("Civigenics and its employees are state actors because they are employed by the State of Delaware to provide treatment to inmates. As a result, for purposes of §1983 Civigenics acts under color of state law").

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Here, the support for applying sovereign immunity under the Eleventh Amendment to CMS is even easier to find than in the cited decisions because Plaintiff has alleged in his Complaint all of the facts necessary to support such a finding. Whereas the Plaintiff in Hamilton denied that the medical treatment provider was a state actor (See Exhibit "B", p. 6), Plaintiff here specifically and unequivocally acknowledges and alleges that CMS was a state actor, acting under color of state law while providing the medical treatment which is the subject of this litigation: "At all times referred to herein, all of the Defendants were acting within the scope of their employment and/or were exercising powers conferred on them under color of the laws of the State of Delaware". (See Exhibit "A", p. 11). In addition, as this Court made clear in Hamilton, as a state actor providing medical services pursuant to a contract with the State of Delaware and therefore acting "under color of state law", CMS cannot be held liable for Plaintiffs' state law medical malpractice claims. The State of Delaware Tort Claims Act, 10 Del.C. §4010, et al., provides for certain exceptions to a state actor's immunity, none of which operate as a waiver of immunity for claims arising out of medical treatment to inmates. As this Court in Hamilton observed: Moreover, Civigenics and its employees have not waived sovereign immunity (under state law) because Del. Code Ann. tit. 10 §4012(2) and Del. Code. Ann. Tit. 18 §6511 are inapplicable to these defendants. Section 4012(2) states that a governmental entity will be liable for negligent acts or omissions causing property damage, bodily injury, or death "in the construction, operation or maintenance of any public building or the appurtenances thereto ...". Because Civigenics and its employees are not involved in the construction, operation or maintenance of (the Correctional Institution), this provision does not apply to them. Similarly, Section 6511 has no relevance to this litigation. While Section 6511 expressly consents to suits against the state in state court, the Delaware courts have held that Section 6511 does not waive sovereign immunity to suits in federal court. (Citations omitted). (See Exhibit "B", p. 6).

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In sum, CMS provided the medical treatment which is the subject of this litigation to the inmates under a contract with the State of Delaware. Case law has made clear, and Plaintiff has candidly alleged, that in this capacity, CMS was "exercising powers conferred on (it) under color of the laws of the State of Delaware" (see Exhibit "A", p. 11). A consistent body of case law from this very Court has made abundantly clear that an entity providing medical treatment to inmates pursuant to a contract with the State of Delaware acts under color of the state law and is therefore entitled to sovereign immunity under the Eleventh Amendment as a matter of law. Hamilton, Castillo and Abraham, supra. CONCLUSION For all the foregoing reasons, it is respectfully requested that this Honorable Court dismiss Plaintiff's claims as to Correctional Medical Services, Inc. with prejudice for failure to state a claim upon which can be granted. WHITEFORD TAYLOR PRESTON, LLC

/s/ Daniel A. Griffith Daniel A. Griffith, Esquire (No. 4209) 1220 Market Street, Suite 608 Wilmington, DE 19801 (302) 482-8754

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CHARLES AUSTIN, Plaintiffs v. CORRECTIONAL MEDICAL SERVICES, INC., et al , Defendants. : : : : : : : : :

Civil Action No.: _1:08-cv-204 JURY TRIAL DEMANDED

NOTICE OF SERVICE I, Daniel A. Griffith, Esquire hereby certifies that on this 16th day of June, 2008, a copy of the foregoing Defendant, Correctional Medical Services, Inc.'s Opening Brief in Support of Motion to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) was electronically delivered via e-file to Joseph M. Bernstein, Esquire 800 North King Street Suite 302 Wilmington, DE 19801 Bruce L. Hudson, Esquire 800 North King Street Suite 302 Wilmington, DE 19801

/s/ Daniel A. Griffith Daniel A. Griffith, Esquire