Opinion
No. 7:02-CV-0291-R.
September 8, 2004.
MEMORANDUM AND RECOMMENDATION
The above styled and numbered cases come before the undersigned pursuant to Standing Orders of Reference entered by the District Court August 26, 2003, referring the matters for pre-trial management including inter alia the reference of all case dispositive matters for report and recommendation. Prior to entry of the Orders of Reference, the District Court partially consolidated the cases for discovery, deposition, experts, exchange of other discovery and pre-trial disclosures. Rule 12(b)(6) Motions to Dismiss having been filed incorporating arguments against the "statecreated danger" theory of 1983 liability, I consolidated the cases for briefing, hearing and argument. Briefing concluded October 20, 2004 and a consolidated hearing was conducted October 28, 2003. Incorporated below are my findings, conclusions and recommendations to the District Court.
Order on Joint Motion for Partial Consolidation of Civil Action entered June 23, 2003 in CA-7:02-CV-291-R which expressly made applicable to all of these cases.
Factual Background
Beginning in November 2000 and continuing through January 2001, up to twenty-two patients in the Nocona General Hospital died under suspicious but then unknown causes. A nurse on the night shift at the hospital named Vicki Dawn Jackson ("Nurse Jackson") is alleged to have murdered the patients by administering intravenously the drug Mivacron which had not been ordered by any physician. Plaintiffs in these consolidated suits have sued Nurse Jackson, the Nocona General Hospital and thirteen other individual or entity defendants claiming that the defendants were consciously indifferent to the activities of Nurse Jackson, the disappearance of the vials of Mivacron from the drug cart and the ever-increasing number of unexplained deaths. Federal jurisdiction of these cases is founded upon 42 USC § 1983 for violation of the substantive due process rights of the victims to life, liberty and property. The causes of action asserted by the plaintiffs in each of the cases are essentially of the same character as to each of the defendants in each of the cases. There are some state-based causes of action asserted within the pendent jurisdiction of the Court that vary from case to case, but the core allegations supporting federal jurisdiction are the § 1983 causes of action asserted. Many, but not all, of the plaintiffs have cautionarily filed "companion cases" in state courts to toll the statutes of limitations in case this court were to dismiss for want of jurisdiction.
Federal jurisdiction in Cause No. 7:03-CV-6, is further founded on diversity of citizenship since the plaintiffs are citizens of the State of Oklahoma, the non-forum state. Attached as Appendix I is a matrix reflecting the numbers and styles of the consolidated cases, the named plaintiffs and the named defendants.
Nurse Jackson was indicted in the 97th Judicial District Court in Montague County for two of the deaths on July 2002 and most recently in January 2004 in four more of the deaths. The state court civil actions, though not formally abated, have barred discovery against Nurse Jackson until such time as the criminal actions have been disposed.
The allegations in each of the pending federal court complaints have included allegations that each of the defendants were "state actors" as "persons acting under color of state law under § 1983." As such, their conduct by action and inaction, errors and omissions of various kinds, resulted in a "state-created danger" to each of the victims from which the defendants failed to extricate the victim, thereby intentionally, recklessly or with deliberate indifference depriving the victims of life and liberty. In addition to the "state-created danger" theory of liability, each of the plaintiffs has attempted to allege that Nocona General Hospital as Nurse Jackson's employer was liable for the damages caused by her action because of deliberate indifference or policy decision or lack of policy decision which were the "moving force" behind the Constitutional violations. Additionally, the Plaintiffs have swept in the other defendants, both entities and individuals, claiming that because of their relationships to the defendant hospital and/or to Nurse Jackson they were either state actors or were individually liable or responsible for Nurse Jackson's conduct or for their failures as supervisors, trainers, and/or policy makers.
Representative of the various pleadings against the defendants are Plaintiffs' Second Amended Complaint in Cause No. 7:02-CV-291-R; The Estate of Boyd Bruce Burnett v. Nocona General Hospital et al. and the Original Complaint in Cause Number 7:03-CV-004-R, Charles Williams, et al v. Nocona General Hospital et al. In addressing the legal principles and analysis of the asserted causes of action, I will reference the allegations from these Complaints. To the extent that the Complaints in the other cases alter or vary the allegations, I will address them either by footnote or by separate analysis.
The various defendants have asserted in their 12(b)(5) motions that the plaintiffs have failed to state causes of action under § 1983, that their pleadings are generally and specifically deficient in that regard, and that the defendants have qualified immunity from suit that must be decided at this early stage.
Appendix II is a matrix correlating each defendant and the bases for its motions.
Standard for Review of Motion to Dismiss
Judge Lindsay recently articulately summarized the standard of review in Kinzie v. Dallas County Hospital District, 239 F.Supp.2d 618 (N.D. Tex 2003) as follows:
A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Stated another way, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229, 120 S.Ct. 2659, 147 L.Ed.2d 274 (2000). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, "`[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the plaintiff's] claims.'" Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992)."
The Fifth Circuit has summarized the standard of review also as follows:
"The question, therefore, is whether, in the light most favorable to the plaintiff(s) and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Brown v. Nations Bank Corp., 188 F3d 579, 585 (5th Cir. 1989) quoting 5 Wright Miller, Federal Practice Procedure, § 1357 at 601 (1969).
See also Conley v. Gibson, 355 U.S. 41, 44-46, 75 S.Ct. 99, 102 L.Ed.2d 80 (1957); Morin v. Moore, 309 F.3d 316, 319 (5th Cir. 2002); and Castro Ramero v. Becken, 256 F.3d 349, 353 (5th Cir. 2001) and cases cited therein.
Furthermore, the Supreme Court has laid to rest the "heightened pleading" standard in civil rights cases alleging municipal liability under § 1983 against which the Plaintiffs' pleadings are to be vetted. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 l. Ed. 2d 517 (1993), reversing the 5th Circuit's holding at 954 F. 2d 1054.
Apparent Nature of Cases
Plaintiffs claim that the nurse ran amok and that the institution and persons with authority and power failed in numerous ways to stop her in time to prevent the deaths. The defendants claim that these Nocona nurse cases are no more than medical malpractice cases wrapped in § 1983 clothing. Between these two extremes, there are an abundance of liability theories and defensive theories and pleading standards in conflict.
Due Process Violation v. Mere Negligence
It is well established that 42 U.S.C. § 1983 does not itself create substantive rights; it merely provides a remedy for federal rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Section 1983 does not provide a remedy for "any and all injuries inflicted by persons acting under color of state law." Washington v. District of Columbia, 802 F.2d 1478, 1480 (D.C. Cir. 1986). The deprivation must be of constitutional magnitude. Whitten v. City of Houston, 676 F.Supp. 137 (S.D. Tx 1987).
In McClendon II the 5th Circuit summarized the distinction as follows:
McClendon v. City of Columbia, 305 F. 3d 314, 325-26 (5th Cir. 2002).
"Regardless of the theory of liability that a plaintiff is pursuing, in order to state a viable substantive due process claim the plaintiff must demonstrate that the state official acted with culpability beyond mere negligence. The Supreme Court discussions of abusive executive action have repeatedly emphasized that "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S. Ct. 1708, 140 L. Ed. 2d 1043, (1998) (quoting Collins, 503 U.S. at 129, 112 S. Ct. 1061) (internal quotations omitted). The court has "spoken of the cognizable level of executive abuse of power as that which shocks the conscience." Id. In elaborating on "the constitutional concept of conscience shocking", the Court has "made it clear that the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." Id. at 848, 112 S. Ct. 1061. "[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process."
The Amarillo Court of Appeals in a similar type of case in Mitchell v. Amarillo Hospital District, 855 S.W.2d 857 (Tex.Civ.App.-Amarillo, 1993) summarized the issue as follows:
"The Due Process Clause of the Fourteenth Amendment does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. It should not be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law. Id. Similarly, section 1983 imposes liability for violation of rights protected by the Constitution, not for violations of duties arising out of tort law. Baker v. McCollan, 443 U.S. at 146, 99 S.Ct. at 2695. It also does not provide a right to be free of injury whenever a government actor may be characterized as a tortfeasor. San Jacinto Sav. Loan v. Kacal, 928 F.2d 697, 700 (5th Cir. 1991)."
That same Court, citing McCabb v. Nassau County Medical Center, 453 F.2d 698 (2nd Cir. 1971), reasoned that:
[F]ew decisions of doctors or administrators in a public hospital will provide a proper basis for a section 1983 action because such decisions do not usually affect rights secured by the Constitution and laws of the United States. . . . [M]ere negligence in giving or failing to supply medical treatment alone will not suffice for a section 1983 action.Mitchell, supra. at page 868. See also Whitton, supra. (misdiagnosis of severity of injuries by paramedics); Handley v. City of Seagoville, 798 F.Supp. 1267 (N.D. Tx 1992) (failure to provide ambulance service); Jenicke v. City of Forest Hill, 873 S.W.2d 776 (Tex.Ct.App.-Ft. Worth, 1994); failure to train firefighters to bar civilians from scene.
Qualified Immunity (Now or Later)
The doctrine of qualified immunity is summarized by the 5th Circuit in McClendon II — that it is founded on the principal that government officials should be:
Id. at 323.
". . . [i] mmune from suit rather than a mere defense to liability, "Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) . . ." the defense is intended to give governmental officials a right not merely to avoid standing trial, but also to avoid the burdens of "such pretrial matters as discovery . . . as `[i]nquiries of this kind can be peculiarly disruptive of effective government.'" Id. (Quoting Harlow, 457 U.S. At 817, 102 S. Ct. 2727) (alterations in original). Thus, adjudication of qualified immunity claims should occur "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 12 S. Ct. 534, 116 L. Ed. 2d 589 (1991). But, where the application of qualified immunity to an individual defendant depends upon factual determinations not established as a matter of law, the court must delay the determination until such facts have been established by admission, summary judgment evidence or trial evidence or jury finding.
The Challenge
The Court is therefore challenged by the Defendants' Motions to Dismiss and the respective replies of the Plaintiffs to discern whether these cases are fish (malpractice cases only) or fowl (civil rights cases) or both. Do the alleged violations of each defendant rise above above mere negligence? Are the defendants chargeable for the conduct of Nurse Jackson because of some relationship of authority or power or by reason of their own conduct?State Created Danger Theory
The Plaintiffs Complaints all contain extensive allegations seeking to bring the cases against the Defendants under a "State Created Danger" theory umbrella. The current status of the "State Created Danger" theory of § 1983 causes of action is in appellate limbo before the Fifth Circuit. The last official pronouncement by the Fifth Circuit on this issue is that it reiterated that it has not yet adopted the theory as grounds for asserting a § 1983 cause of action. This leaves the District Courts in a quandary whether to analyze the cases assuming the Court will adopt the theory in a case before it or to ignore the theory and apply only currently accepted Fifth Circuit and Supreme Court jurisprudence to the § 1983 analysis. The state created danger theory has at its core the necessity that the defendant be "consciously or deliberately indifferent" to the dangerous condition or the risk to the person exposed thereto. This then requires that the defendant(s) have some degree of knowledge of such condition or risk. The degree and character and timing of the remaining defendants' knowledge is the gravamen of this case as it proceeds, whether the "State-Created Danger" theory is adopted as the law in the Fifth Circuit or not. Plaintiffs have alleged that the defendants were on notice of sufficient facts concerning the conduct of Nurse Jackson and the results of her actions as to charge them with sufficient knowledge to impose liability under the State-Created Danger theory. But most of the cases where the State Created Danger theory has resulted in the imposition of liability have involved the defendants' active creation of the danger or dangerous condition, not the creation of the danger through inaction. Here, the plaintiffs are trying to establish both prongs of the state-created danger theory by pointing to the defendants' inaction. They say the inaction (failures to investigate, failures to train, failures to supervise, failures to report, failures to establish procedures, failures to follow protocols) created the danger (i.e., allowing an employee nurse to run amok with vials of death-dealing drugs over an extended period of time killing patients) and manifested the indifference of the defendants to that danger. The plaintiffs say in essence that from all the circumstances the defendants should have known the danger and should have reacted to that danger by taking steps to eliminate the danger or shield or extricate the patients from exposure to the danger. This sounds more in negligence than in constitutionally cognizable culpability. This is pushing the State Created Danger theory too far. I conclude that the State-Created Danger theory is inapplicable in this Circuit and I find that liability of the defendants on this ground is not supported by the pleadings of the Plaintiffs.
Special Relationship
Plaintiffs have alleged that the defendants' liability for Nurse Jackson's actions and their failures to prevent the havoc wrecked by her in the rooms of the Hospital arises from the defendants' "special relationship" to the decedents since they did not have a choice concerning their medical treatment or the lack of medical care. The Plaintiffs liken the relationship between the Hospital, the Hospital staff, the treating doctors and treating nurses and the patients to that of prisoners, or persons under arrest, or persons involuntarily committed or voluntarily committed to a mental treatment facility. I conclude that there is no "special relationship" between the decedents and the defendants as to impose liability on the defendants under the DeShaney case and its progeny.
DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989)
Notwithstanding the inapplicability of the State-Created Danger theory and the Special Relationship theory, Plaintiffs nonetheless argue that they have alleged sufficient facts as to establish the defendants' liability under established § 1983 jurisprudence.
Analysis § 1983 Claim Allegations
"To state a claim under § 1983 a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of law." West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254, 101 L. Ed. 2d 40 (1988); Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995); Doe v. Rains County ISD, 66 F.3d 1402 (5th Cir. 1995). The Court's first inquiry, therefore, is whether the plaintiff(s) in each case has/have alleged a violation of a Constitutional right by a defendant in each case.
Once it is determined "that a deprivation has occurred at the hands of a state actor, [it] does not answer the separate question of which other persons, apart from the immediate perpetrator, may be held liable under § 1983." Doe v. Raines County Independent School District, 66 F. 3d 1402, 1407 (5th Cir. 1995). In Bush v. Viterna, the Fifth Circuit outlined a three step approach for drawing a the circle of liability in a § 1983 action saying, "[a]fter finding that (1) a rights violation occurred (2) under color of state law. Only then do we ask a third and final question: Who are the state actors responsible for the constitutional violation?"
795 F. 2d 1203 (5th Cir. 1986)
Id at 1209.
The same determination is the first step in the qualified immunity analysis. McClelland II at p. 322-23 citing Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). However, at this pleading stage, our review is limited to reviewing the allegations of plaintiffs' pleadings concerning the defendants' conduct as to its "objective reasonableness."
Essential Constitutional Violation Alleged
Plaintiffs uniformly assert that Nurse Jackson while in the employment of the Defendant Hospital, and while under the supervision of hospital staff members (either employees or independent contractors) intentionally killed each decedent by drug injection thereby depriving each decedent of his Constitutional rights to life and liberty, and also thereby depriving each plaintiff (in their varied capacities as survivor, child, spouse, heir, or personal representative) of liberty and property interests. By reason of her employment relationship with Nocona General Hospital, a state governmental entity, Plaintiffs' claim she was a "state actor" and therefore the deprivations of life and liberty interest was committed by a person acting under color of law.
State Actors Analysis
In § 1983 jurisprudence there are significant distinctions between the elements of a Constitutional violation by a "state actor" as compared to the elements sustaining a Constitutional violation by a "private person." Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed 2d 482 (1982). The state or a municipality is not obligated to protect an individual from constitutional violations by private persons, but may be obligated to protect an individual from constitutional privations by a "state actor." Therefore, the Court has parsed the Plaintiffs' pleadings to determine whether each defendant is properly alleged to be a "state actor" or merely a "private person" so as to properly measure the character and quality of their respective conducts.
Compare Deshaney, supra. at note 6 to Doe v. Raines County I.S.D., supra. at p. 10.
Nurse Jackson
In interpreting the criminal law version of § 1983, 18 U.S.C. § 242, the Fifth Circuit has expressly held that a murder by an employee of a state agency violates the Fourteenth Amendment right to not be deprived of life and liberty. See United States v. Causey, 185 F 3d. 407, 414-15 (5th Cir. 1999), cert. Denied, 530 U.S. 1277 (2000). Causey has also been cited by the Fifth Circuit in the § 1983 context. Townsend v. Moya, 291 F 3d 855 (5th Cir. 2002). Other circuits have affirmatively held that a state agency employee who intentionally murders would be liable under § 1983. See Archie v. City of Racine, 847 F. 2d 1211, 1218 (7th Cir. 1987), cert. denied, 489 U.S. 1065 (1989); Bell v. City of Milwaukee, 746 F. 2d 1205, 1238 (7th Cir. 1984).
I have no doubt and find that Plaintiffs have sufficiently alleged that as an employee of Nocona General Hospital, Nurse Jackson committed the heinous acts that deprived the various decedents of their lives. I find that Plaintiffs have sufficiently alleged in sufficient detail facts that establish that Nurse Jackson committed the acts during and in the course of her employment with and at the Hospital and that her actions had a sufficient nexus to the scope of her power and authority granted by the Hospital. I therefore find that Nurse Jackson was a "state actor." I further find that Plaintiffs have sufficiently alleged that Nurse Jackson has committed a constitutional violation while acting under color of law.
I, therefore, recommend that Nurse Jackson's Motions to Dismiss be denied.
Nurse Jackson's Motions are filed in the following cases: 7:02-291, 7:03-6, 7:03-0, 7:03-22, 7:03-40, 7:03-42, but not in 7:03-4, 7:03-5; 7:03-34.
Governmental Entity Liability Nocona General Hospital
Solely arising out of Nurse Jackson's employment alone, the Nocona General Hospital, a state entity, is not liable under a Respondeat Superior theory for her unconstitutional conduct. But under the Monell and City of Canton the Hospital may be liable for her acts and conduct if they result from a policy or custom that when executed or implemented produces a constitutional tort that caused injury to the plaintiff. In each of the pending cases, Plaintiffs have alleged that Nocona General Hospital is a hospital district created under Article 4495q of the Texas Revised Civil Statutes whose actions are state acts, that is, acts committed by a "person" under color of law. Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971); Mitchell v. Amarillo Hospital District, 855 SW2d 857 (Tex.App.-Amarillo, 1993, writ denied). Other than by the rankest hyperbole, Plaintiffs do not allege that the Hospital affirmatively adopted a policy and procedure to assure that Nurse Jackson would commit her murderous acts. Rather they allege, in vast detail, how the Hospital by inaction allowed customs to develop into policies that permitted Nurse Jackson to commit the acts repeatedly. It is the Hospital's failures to act that are the gravamen of the Plaintiffs alleged complaints.To establish liability by a local entity or municipal liability for a policy or practice, a plaintiff must allege facts which, if true, establish the existence of a constitutional violation caused by a municipality's adoption, or failure to adopt, a particular policy, and that such action went beyond mere negligence in the protection of plaintiffs' constitutional rights. Cole v. Brazos County, Texas, 981 F 2d. 237, 246 (5th Cir. 1993). The Plaintiffs allege failures by the Hospital to train, failures to supervise, failures to regulate, failures to report, any or all of which Plaintiffs allege were the result of, and demonstrate, the Hospital's deliberate indifference to Nurse Jackson's acts and their murderous results. An official policy may arise from "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Bennett v. City of Slidell, 735 F. 2d 861, 862 (5th Cir. 1984), cert denied, 472 U.S. 1016 (1985). But [a]ctual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Id. at 862.
In order for an entity to be deliberately indifferent through its employees and agents, it must have acquired some knowledge, actual or imputed, that the acts it must prevent are occurring. The Hospital claims that it did not know or discover the cause of the deaths and the instrumentality of the killings until afterward. The Plaintiffs stridently assert that the whole pattern of sudden, unanticipated, unexplained deaths coupled with the pattern of loss or theft of drugs from the crash cart put the Hospital through its various supervisory personnel on such notice of Nurse Jackson's conduct as to charge the Hospital with knowledge. They say in essence "if the Hospital did not know, it should have known" and "it should have known it sooner."
It should be noted here that the deaths and the actions that lead to the deaths occurred not all at once, but over a period of two and one half months. The first such death certainly did not create a pattern sufficient to charge the hospital with knowledge. And I am not convinced that even the fifth or seventh death created such a pattern as to charge the hospital or its staff or agents with knowledge, but a fact finder, after hearing the evidence, could so find. Therefore, I find that the Plaintiffs have alleged sufficient facts with sufficient particularity as to state a § 1983 cause of action against the Hospital under the theory of liability established by Morell and City of Canton and their progeny. I recommend that the court deny the Hospital's Motions to Dismiss.
The Hospital has a Motion to Dismiss pending in each of the cases.
Supervisors and Co-Workers as Co-State Actors
Once it has been determined that federal constitutional rights of a victim have been violated by a state actor, other persons, apart from the immediate perpetrator, may be held liable under § 1983. Doe v. Rains County I.S.D., supra p. 10. Supervisors, policy makers, controlling persons and co-workers of state actors may be individually liable for the constitutional privations or violations by their subordinates or co-workers if their own conduct or inaction amounts to more than mere negligence and is the "moving force" behind their subordinate's unconstitutional conduct. The Fifth Circuit has a three-part test for determining when a supervisory official or controlling person can be held liable for the conduct of a subordinate. The plaintiff must show [allege] that: (1) the supervisor failed to supervise or train the subordinate, (2) a causal connection existed between the failure to supervise or train and the violation of the plaintiff's rights, and (3) such failure to supervise or train amounted to gross negligence or deliberate indifference. Doe v. Raines County, supra. citing Hinshaw v. Doffer, 785 F. 2d 1260, 1263 (5th Cir. 1986).Beyond merely alleging that an individual was a "supervisor" over a subordinate, a plaintiff must causally connect the supervisory failure to the violation of the plaintiff's rights. If the Plaintiff's pleadings are to be believed, Nurse Jackson's activities in using the vials of Mivacron to kill the patients was an intentional act committed by the nurse outside the scope of her duties or responsibilities as a care giver. I fail to see how any degree training (or the lack thereof) of Nurse Jackson could have prevented Nurse Jackson's actions. I also question whether any degree of supervision other than concurrent presence of the supervisor would have prevented Nurse Jackson's actions. However, policies (or the absence thereof) with regard to the use, monitoring and/or control over access to the drug Mivacron (the apparent instrumentality of the killings) may have a sufficient nexus to the violation of each Plaintiff's rights. Therefore, Plaintiffs' general allegations of supervisor status are insufficient to establish the causal nexus, but Plaintiffs' allegations that a supervisor had some degree of control over the drug, drug cart, their usage and/or was a policy maker with regard to these matters, would allege a sufficient nexus.
Nocona Medical Center
Plaintiffs allege that Defendant Nocona Medical Center, P.A. d/b/a Clinics of North Texas is an association of physicians engaged by the Hospital to (1) provide medical care, (2) perform administrative functions and (3) perform "relevant employment functions" at and for the Hospital. Giving due deference to Plaintiffs' pleadings, this defendant's relationship to the Hospital is not an employment relationship but as an independent contractor. Nevertheless, independent contractors (even professionals) may be deemed to be "state actors" clothed with the authority of the state law provided their contractual duties and activities are performed for the benefit of the Hospital in discharge of its duties to its patients such as the decedents. West v. Atkins, supra. at p. 55. The provision of medical care ordinarily arises out of a direct relationship between the physician and patient not partaking of state action except under the conditions of confinement where the physician is supplied by the institution and the patient has no choice as to his care giver. DeShaney v. Winnebago County of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed.2d 249 (1989).
This entity is called by different names in the various complaints," United Clinics of North Texas P.L.L.C.," "Clinics of North Texas," "Nocona Medical Associates, P.A. f/k/a Clinics of North Texas," but are all the same entity which shall be referred to herein as "Nocona Medical Center."
But Plaintiffs' allegations go beyond merely alleging conduct within the scope of the physician/patient relationship as they allege that this defendant also was engaged to provide "administrative" functions and "other relevant employment functions" through its partners and was a policy maker for the Hospital. The individual members of the Clinic may have provided "administrative" functions and "other relevant employment functions for the Hospital pursuant to their engagement, but the Plaintiff's do not allege that the Clinic itself as an entity distinguished from its members assumed or performed those functions.
The Plaintiffs have not alleged that this Defendant or its member physicians, actively participated in Nurse Jackson's actions, knew or countenanced those actions, or in their official capacities for the Hospital actively adopted any policy or procedure mandating or condoning Nurse Jackson actions. Rather there are only the global allegations that the entity through its member physicians allowed the custom to develop that permitted Nurse Jackson to repeatedly commit the acts of murder. While the Plaintiffs do allege that the members were deliberately indifferent to the results of Nurse Jackson's conduct, the Plaintiffs do not allege, other than in the rankest hyperbole, that the entity or its members knew the causes or instrumentalities of the deaths of its members' patients. Liability of a policy maker due to conscious or deliberate indifference to unconstitutional actions by persons under the policy maker's control or supervision, requires proof of knowledge by the policy maker, or such notice as to cause the knowledge to be imputed. I find that the Plaintiffs have not alleged sufficient facts with sufficient particularity as to state a § 1983 cause of action against this entity defendant under the theory of liability established by Morell and City of Canton and their progeny. I therefore recommend that the District Court grant the Clinic's Motions to Dismiss.
Russell Wayne Fenoglio
Defendant Fenoglio as owner of a sole proprietorship business known as Nocona Pharmacy was allegedly hired by the Defendant Hospital to provide pharmaceutical services to the Hospital and as Pharmacist-in-Charge to supervise the Hospital staff with respect to the use and stocking of the drug cart from which Nurse Jackson allegedly obtained her supply of Mivacron. Plaintiffs allege that he had multiple supervisory, management and policy making duties respecting the drugs, drug cart, and drug administering staff. Plaintiffs' pleadings are unclear whether he was hired by the Hospital as an employee or engaged as an independent contractor. But the distinction makes no difference as to his status as a potential "state actor" since his alleged duties were performed for the benefit of the Hospital in the discharge of its duties to patients such as the decedents. West v. Atkins, supra.
The Plaintiffs have not alleged that this Defendant actively participated in Nurse Jackson's actions, knew or countenanced those actions, or in his official capacity for the Hospital actively adopted any policy or procedure mandating or condoning Nurse Jackson actions. Rather it is his inaction, lack of policy, lack of procedure, lack of supervision, failures to log and report that allowed the drug Mivacron to be available to Nurse Jackson. His liability, if any, rests on the character and degree of knowledge he had (or is charged with) of Nurse Jackson's actions or of the thefts of Mivacron from the drug cart and when he acquired or is charged with such knowledge. I find that the allegations of Plaintiffs against this defendant are sufficiently particular as to his supervisory responsibility and control of the drug cart, the drugs, and their usage as to implicate his inaction as a "moving force" for Nurse Jackson's constitutional violations. And coupled with allegations of deliberate indifference, the allegations are sufficient to state a § 1983 cause of action against him as permit the cases to proceed against him.
I recommend that defendant Fenoglio's Motions to Dismiss be denied.
CAPACITIES OF OTHER NAMED DEFENDANTS
Plaintiffs have each alleged supervisory and/or control capacities of the various other named defendants and their relationship to Nurse Jackson and her actions. Their alleged supervisory positions and control authority are as follows:
Charles R. Norris
Defendant Charles R. Norris is alleged to have been the Hospital Administrator. Plaintiff's pleadings are unclear whether he is engaged as an employee or as an independent contractor. Nevertheless, in his capacity as Hospital Administrator he is alleged to have general administrative and supervisory duties with respect to the hospital staff, including Nurse Jackson, and policy making duties and authority with respect to the drug cart, training of nurse employees, and the administration of medical care to patients at the Hospital.
Leonard Thomas Dingler
Defendant Leonard Thomas Dingler (Len Dingler) is alleged to be the Chief of Staff of the Hospital. Plaintiff's pleadings are unclear where he is engaged as an employee or as an independent contractor in that position. But Plaintiffs' pleadings allege that in that capacity he was a policy maker, that as a policy maker he allowed the conditions to exist that permitted Nurse Jackson to engage in the constitutional violations.Chance W. Dingler
Plaintiffs allege that Chance Dingler was the treating physician for decedent J.T. Nichols (or a number of the decedents). If the Plaintiffs had alleged that he acted in that capacity alone, he would be deemed a "private actor" and not a "state actor." But with the broadest of brushes the Plaintiffs allege that he was one of the group of Defendants who "were policy makers and/or supervisors at the Hospital with direct control over and supervisory authority. . . ."
George Russell "Rusty" West
Defendant Rusty West is alleged by Plaintiffs to be an admitting physician and physician primarily in charge of the medical care for decedent J.T. Nichols. In that capacity alone, he would be a "private person" and not a potential "state actor," but he is swept up in the Plaintiffs' global policy maker and supervisor general allegations.
Barbara Perry
Defendant Barbara Perry is alleged by a number of Plaintiff's to have been employed by the Hospital as its Director of Nursing with supervisory and training authority and duties with respect to nurses including Nurse Jackson. As an employee of the Hospital and as a supervisor of Nurse Jackson, Plaintiffs have alleged her capacity as a policy maker and supervisor of Nurse Jackson. While Plaintiffs' allegations concerning Perry's policy making functions and nexus to Nurse Jackson's activities are sketchy and somewhat conclusionary, I find that she is adequately alleged to be a potential "state actor" having a sufficient alleged policy making control over Nurse Jackson and her actions.
Melissa D. Engleman
Defendant Melissa D. Engleman is alleged by the Williams, Vanderberg, Dixon and Reid Plaintiffs to have been employed by the Hospital as a "pharmacy technician" and as such had the duty to "control" the Hospital's drug inventory and to make reports of lost or stolen drugs. There are no direct allegations that she engaged in or authorized to make any policy making activity function only that she failed in numerous respects to follow the policy. I find that while she would be a potential "state actor," her alleged conduct amounts to no more than allegations of negligence cognizable under state law, but not of constitutional magnitude.
Collins v. Harker Heights, 503 U.S. 115, 112 S. Ct. 1061, 117 L. Ed 2d 261 (1992); Mitchell v. Amarillo Hospital District, supra.
Tina Samples
Plaintiffs' allegations against Defendant Tina Samples are essentially the same as those alleged against Defendant Engleman. I find that while she would be a potential "state actor," her alleged conduct amounts to no more than allegations of negligence cognizable under state law, but not of constitutional magnitude.James Embry
Defendant Scott James Embry (Embry) is alleged to have been a nurse employed by the Hospital as Assistant Director of Nursing. In that capacity, Plaintiffs allege that Embry failed to supervise Norse Jackson. These allegations arise to no more than claims of negligence. I find that Plaintiffs have failed to allege a sufficient degree of control by Embry over Nurse Jackson or her actions as to rise to a constitutional level.
Sufficiency of Allegations of Control
As to each of the defendants, Fenoglio, Norris, Leonard Dingler, Chance Dingler, West, and Perry, I find that Plaintiffs have alleged with sufficient specificity the degree of control as would implicate each defendant as state actor with some degree of responsibility for controlling Nurse Jackson's actions either directly by supervising or by controlling her access to the Mivacron.
See here the Appendix III, a matrix summary of the duty/control allegations against these defendants in Plaintiffs' Second Amended Complaint in Cause No. 7:02-CV-291-R; The Estate of Boyd Bruce Burnett v. Nocona General Hospital et al., the Original Complaint in Cause Number 7:03-CV-004-R, Charles Williams, et al v. Nocona General Hospital et al., Selden Attebury et al. V. Nocona General Hospital, et al., in Cause No. 7:03-CV-034-R, and Shirley Jeanette Holder v. Nocona General Hospital et al., 7:03-CV-040-R.
Sufficient Allegations of Nexus
As to each of the defendants Fenoglio, Norris, Leonard Dingler, Chance Dingler, West and Perry, I find that the Plaintiffs have sufficiently alleged a sufficient causal nexus between the degree of supervision or control reposed in each defendant over the activities of Nurse Jackson and her access to the Mivacron and then to the patients.Sufficiency of Allegations of Indifference
As to each of the defendants, Fenoglio, Norris, Leonard Dingler, Chance Dingler, West, and Perry, I find that the Plaintiffs have sufficiently alleged that they were consciously or deliberately indifferent to conditions and activities over which they had but failed to exercise control as to prevent the constitutional violations by Nurse Jackson.
Conclusions
I conclude that under the Fifth Circuit's holdings in Doe v. Raines County and Doe v. Taylor I.S.D., Plaintiffs have sufficiently alleged causes of action against Defendants Nocona General Hospital, Russell Wayne Fenoglio, Charles R. Norris, Leonard T. Dingler, Chance W. Dingler, George Russell "Rusty" West, and Barbara Perry under 18 U.S.C. § 1983 as to warrant denial of their respective Motions to Dismiss.
I further conclude that this pleading stage in these cases is not the appropriate time to determine the defendants' respective rights to Qualified Immunity since the application of this doctrine depends upon what each defendant knew and when he or she knew it with respect to Nurse Jackson's activities, the deaths that ensued, and the causes of those deaths. Determination of the Qualified Immunity of these defendants should abide the determination of these factual issues upon completion of discovery, summary judgment or trial.
Supplemental (Pendent) Jurisdiction
Each of the Plaintiffs has alleged that the named defendants, individually and collectively, were negligent, that such negligence was the cause of the deaths of the decedents and of the Plaintiffs' damages. These causes of action are pure medical malpractice/healthcare negligence state tort causes of action as to which state interests predominate. They are alleged by the Plaintiffs to be within the court's supplemental (pendent) jurisdiction and should remain such so that the constitutional issues and state tort issues may be determined in a single proceeding thereby promoting judicial economy. The Defendants have requested the Court, in the exercise of its discretion, to dismiss the pendent causes of action.
Giving due deference to the doctrine of judicial economy that supports retaining causes of action within the Federal District Court's supplemental jurisdiction, I find that the constitutional issues presented by the Plaintiffs' pleadings are likely to be muddied up and confusing to a jury if tried in connection with the negligence causes of action. Furthermore, state law issues predominate. State law determines the scope and extent of the duties of a hospital, and the various members of its staff to identify what deaths are pre-mature, to investigate the occurrences of pre-mature death to discover the causes and agencies thereof, and whether actual knowledge as opposed to notice is sufficient to support a negligence cause of action against these various defendants. If this Court retains the negligence causes of action within its supplemental jurisdiction, the standards for proof of the elements of the constitutional violations will get lost in the negligence cause of action elements. Therefore, pursuant to the Court's discretion under 28 U.S.C. § 1367(c)(4), I recommend that the District Court dismiss the negligence causes of action without prejudice, retaining only the constitutional issues for further determination by motion for summary judgment or trial.
Plaintiffs in most, if not all, of the cases have protectively filed in state court to toll limitations. Therefore, dismissal will not prejudice the hearing of the state causes of action. Furthermore, under subdivision (d) of § 1367, the claims have been tolled during the pendency before this Court.
Recommendations
I recommend that the District Court grant the Motions to Dismiss filed by defendants Nocona Medical Center, Melissa Engleman, and Tina Samples with respect to the § 1983 causes of action alleged against them.
I recommend that the District Court deny the Motions to Dismiss of Defendants Nocona General Hospital, Russell Wayne Fenoglio, Charles R. Norris, Leonard T. Dingler, Chance W. Dingler, George Russell "Rusty" West and Barbara Perry.
I recommend that the District Court dismiss the negligence causes of action against all of the Defendants without prejudice.
With the exception of Cause No. 7:03-CV-6 where jurisdiction of the negligence causes of action is also based on diversity of citizenship with the requisite amount in controversy.
I recommend that the District Court stay the resolution of the retained constitutional causes of action pending the last to occur of the following:
a) state court resolution of the criminal cases against Nurse Jackson; or
b. state court resolution of the civil cases; or one year from date, when the status of the stay will be re-examined.
APPENDIX I
A B C D E F 1 Docket Number Deceased Plaintiff(s) Defendant No. 1 Defendant No. 2 Defendant No. 3 2 7:03-cv-00291 Boyd Bruce Burnett Carol Jean James Nocona General Hospital Vickie Dawn Jackson (Carter) Russell Wayne Fenoglio 3 7:03-cv-00004 John Walter Williams Charles (nmi) Williams X X X 4 Richard (nmi) Williams 5 Estate of John Walter Williams 6 7:03-cv-00005 Dorothy Jean Vanderburg Billie J. Huggins (temp admr) X X X 7 Estate of Dorothy Jean Vanderburg 8 7:03-cv-00006 Alma Dixon Betty Miller (Exec.) X X X 9 Elaine Curtiss 10 David (nmi) Dixon 11 Rick Dixon 12 Reena McCaffery 13 Gladys Bourge 14 7:03-cv-00008 Dorothy Jean Vanderburg Harold Gene Vanderburg (heir) 15 Estate of Dorothy Jean Vanderburg X X X 16 7:03-cv-00009 J.T. Nichols Barbara Gay Nichols Rector (Admr) X X X 17 Clifford Nichols (heir) 18 Michael (nmi) Nichols (heir) 19 7:03-cv-00022 Everett Ethridge Jackson Dois Wayne Jackson (rep) X X X 20 Yvonne Weatherly 21 7:03-cv-00034 Barbara Attebury Selden Atteberry (rep) X X 22 Stacy Atteberry 23 India Atteberrry next friend Lydia Weatherread 24 Cecilia (nmi) Morgan rep of estate of Dona Sue Curnutte 25 Charley Curnutte 26 Charley B. Curnutte 27 Kathy Weaver, rep/estate William J. Griffin 28 7:03-cv-00040 Jimmy Ray Holder Shirley Jeanette Holder (I/E Heir) X X X 29 7:03-cv-00042 Donnelly Reid Harry Don Reid (Adm) X X X 30 G H I J K L M 1 Defendant No. 4 Defendant No 5 Defendant No 6 Defendant No. 7 Defendant No. 8 Defendant No. 9 Defendant No. 10 2 Charles R. Norris Nocona Medical Clinic, PA Clinics of North Texas LLP Nocona Medical Associates, P.A. Leonard T. Dingler Chance W. Dingler 3 X X George Russell West 4 5 6 X X X X X X 7 8 X X X X X X 9 10 11 12 13 14 15 X X X X X X X 16 X X X X X X 17 18 19 X X X X X 20 21 X 22 23 24 25 26 27 28 X 29 X X X X X X 30 N O P Q 1 Defendant NO. 11 Defendant NO. 12 Defendant No. 13 Defendant No. 14 2 Barbara J. Perry 3 X Melissa D. Engleman The Samples James Scott Embry 4 5 6 X X 7 8 X X 9 10 11 12 13 14 15 X X X 16 X 17 18 19 X 20 21 X 22 23 24 25 26 27 28 X X 29 X X 30Appendix II
Appendix III Analysis Matrix of Duty/Control Allegations of Plaintiffs
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1. Nocona Hospital (By 7:03-CV-291) a. Duty — to match up drugs from crash cart with doctors' orders, code sheets, and anesthesiologist charge sheets I. To safeguard the safety of patients b. Duty- to keep safe and accurate records and track of drugs taken from crash cart I. To safeguard the safety of patients c. Duty to verify and report removal of drugs d. Duty to report the theft of drugs 2. Russell Wayne Fenoglio d/b/a Nocona Pharmacy (By 7:03-CV-291) a. Duty as Contract Pharmacist — to 1. match up drugs from crash cart with doctors' orders, code sheets, and anesthesiologist charge sheets I. To properly bill patients for the drugs: and, II. To keep safe and accurate records and accurate track of all drugs b. Assigned duty as Contract Pharmacist — to 1. Verify every removal; and 2. Report every loss or theft I. Of all drugs c. Duty as Policy Maker — to 1. Make 2. Implement 3. Enforce I. Policies and procedures for handling A. Crash Carts B. Pharmaceuticals C. Drugs d. Duty as Supervisor 1. To train 2. To supervise 3. To oversee I. Pharmacy Technicians II Employees A. Concerning Hospital drug policies 3. Charles R. Norris (By 7:03-CV-291) a. As Policy Maker b. As Supervisor 1. Of all departments 2. Of all managers A. Including Barbara Perry B. Including Len Dingler C. Including Russell Fenoglio D. Including Nurse Jackson I. Duty—To assure proper a. training, and b. Supervision i. Of all employees ii. Of all contractors c. As Laison 1. Between Medical Staff and Board of Directors d. As Chief Administrator A. Duty to 1. Develop 2. Implement 3. Assure Compliance I. With all a. Policies b. Procedures 4. Leonard T. Dingler, Md. (By 7:03-CV-291) a. As Chief of Staff (or Primary Physician A. Duty to 1. Develop 2. Implement 3. Assure Compliance I. With Medical Policies II. With Medical Procedures B. Duty to 1. Train 2. Supervise 3. Oversee I. All Nursing Personnel C. Duty to-Assure compliance with all 1. Hospital Policies 2. Hospital Procedures b. As a Treating Physician A. Duty to — Oversee all 1. Care 2. Treatment I. Of the decedent 5. Chance W. Dingler, Md. (By 7:03-CV-291) A. As (On — Staff Physician) 1. Duty to a. Develop b. Implement c. Assure Compliance I. With Medical Policies II. With Medical Procedures 2. Duty to a. Train b. Supervise c. Oversee I. All Nursing Personnel 3. Duty to a. Assure Compliance with all A. Hospital Policies B. Hospital Procedures 6. George Russell "Rusty" West, Md. (By 7:03-CV-291) A. As "On-Staff Physician" 1. Duty to a. Develop b. Implement c. Assure Compliance I. With Medical Policies II. With Medical Procedures 2. Duty to a. Train b. Supervise c. Oversee I. All Nursing Personnel 3. Duty to a. Assure Compliance with all A. Hospital Policies B. Hospital Procedures 7. Nurse Barbara Perry (By 7:03-CV-291) A. As Director of Nurses 1. Duty to a. Develop b. Implement c. Assure Compliance I. With Medical Policies II. With Medical Procedures 2. Duty to a. Train b. Supervise c. Oversee I. All conduct of all nursing personnel 3. Duty to a. Assure Compliance with all A. Hospital Policies B. Hospital Procedures 8. Melissa D. Engleman (By 7:03-CV-004) A. As Employee (Nurse) 1. Duty to a. Oversee b. Control 1. Hospital's drug inventory 2. Duty to a. Check 1. Pharmacy's records to backup orders 9. Tina Samples (By 7:03-CV-004) A. As Employee (Nurse) 1. Duty to a. Oversee b. Control 1. Hospital's drug inventory 2. Duty to a. Check 1. Pharmacy's records to backup orders 10. James Scott Embry, R.N. (By 7:03-CV-34 40) A. As Employee (Assistant Director of Nursing) 1. Duty to a. supervise 1. Nurses (including Nurse Jackson) 2. Special Duty to a. Care 1. Over patients who they control 3. Duty to a. Train 1. Nurses (including Nurse Jackson) 2. And others b. Implement c. Execute 1. Policies for Monitoring Mivacron use 11. Nocona Medical Clinic, P.A. (By 7:03-CV-008-R) 1. Clinics of North Texas 2. Nocona Medical Associates, P.A. Duty Allegations same as its members, Leonard Dingler, Chance Dingler and Rusty West. 12. United Clinics of North Texas, P.L.L.C. (By 7:02-CV-291-R) (Named in Style of case-but no allegations) 13. Nocona Medical Associates, P.A. (By 7:03-CV-008-R) 1. Member-George Russell West, M.D. 2. Contractee of Hospital Duty Allegations same as its members, Leonard Dingler, Chance Dingler and Rusty West (Wrong name in style of case) 14. Nurse Vickie Dawn Jackson