Glenn v. Myers

          ORDER

          JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant M.H.M.’s Renewed Motion for Summary Judgment (“Motion”) (Doc. 111), Plaintiff’s Response (Doc. 129), M.H.M.’s Reply (Doc. 132), Plaintiff’s “Brief on the Element of Duty” (Doc. 140), and M.H.M.’s Reply thereto (Doc. 141). The Motion is ripe for resolution. After careful consideration, the Court concludes that the Motion is due to be granted.

         I. Background

         Plaintiff Agnes Glenn is the Personal Representative of Roderick Bolton, her deceased son. Defendant M.H.M. Correctional Services, Inc. is a privately held, wholly-owned subsidiary of M.H.M. Services, Inc. (Doc. 34). M.H.M. provided certain mental health services to inmates at Holman Correctional Facility (“Holman”), according to the terms of a contract (“Contract”) between M.H.M. and the Alabama Department of Corrections (“ADOC”).

         Plaintiff commenced this action after her son committed suicide while incarcerated at Holman. As more fully set out in this Court’s order dated June 7, 2018, (Doc. 103), Roderick Bolton (“Bolton”) was a practicing Muslim involved in several incidents at Holman that resulted in him being placed in segregation for insubordination or failure to follow direct orders. The incident that immediately preceded Bolton’s suicide involved his disobedience of an order to shave his beard. Bolton maintained his religious beliefs required him to keep a beard. (Doc. 103 at 2, 3). Bolton was placed in a segregation unit at approximately 9:00 a.m. on September 11, 2015. Plaintiff alleges that following his placement in segregation, Bolton informed various ADOC correctional officers and Shelia Brown (“Brown”), a psychological associate employed by ADOC, that he was having suicidal thoughts.^[1] Bolton was, nevertheless, maintained in the segregation unit and was not placed on suicide watch. He was last seen alive in his segregation cell around 6:00 p.m. on September 11, 2015. On September 12, 2015, Bolton was found hanging in his cell at 3:40 a.m. and pronounced dead at approximately 4:25 a.m.

         M.H.M. contracted with ADOC to provide comprehensive mental healthcare treatment to inmates at several ADOC facilities in 2013. (Doc. 112-3). The Contract incorporated ADOC Administrative Regulations. These Regulations required ADOC to classify inmates. The Contract did not reassign that responsibility to M.H.M. In the Contract, M.H.M. and ADOC differentiated between different categories of inmates that required mental health services under ADOC regulations. (See ADOC Reg. No. § 613). These regulations classify inmates’ mental health care needs on a sliding scale from “MH-0” to “MH-6.” The lowest level of classification is “MH-0.” That classification applies to inmates that have “no identified need for mental health assistance.” (Id.). The Contract provided that inmates classified from “MH-1 to MH-6” were on M.H.M.’s “mental health caseload, ” and M.H.M. had to provide them with certain mental health services. However, inmates classified as “MH-0” were not on M.H.M.’s “mental health caseload” and M.H.M. did not have to provide those inmates with services. (Doc. 111 at 6). Bolton was classified as “MH-0.” The ADOC Administrative Regulations required ADOC to triage “MH-0” inmates who experienced a mental health crisis. An “MH-0” classified inmate could be placed on M.H.M.’s caseload only if ADOC referred the inmate to M.H.M. under the regulations.

         The Fourth Amended Complaint (“FAC”) is the operative complaint. (Doc. 75). The FAC initially included federal and state law claims, but the federal claims have been dismissed. (See Doc. 143). Plaintiff’s two remaining claims against M.H.M. are state law claims, which Plaintiff describes as an “Alabama Claim for Negligent Medical Malpractice” (Id. at Count 3) and an “Alabama Law Claim for Wantonness” (Id. at Count 5). The FAC asserts that the “Alabama Claim for Negligent Medical Malpractice” is made “pursuant to the Alabama common law tort of negligence as modified by the Alabama Medical Liability Acts, Ala. Code §§ 6-5-480, et seq.” (Doc. 75, paragraphs 99 and 99.1). Plaintiff’s allegations of duty in the FAC state that “MHM, its supervisors, and its employees . . . had a duty to follow the standard of reasonable care, skill, and diligence in their care and treatment of [Bolton] that is used by similarly situated health care providers in the same general line of practice.” (Id. at paragraph 100.1). The FAC also alleges that M.H.M. “undertook a duty . . . to act with reasonable care in hiring, training, supervising, and retaining medical professionals, whether as employees or contractors, who are reasonably competent to provide health care to inmates.” (Id. at paragraph 101.2).^[2]

         Plaintiff does not allege in the FAC that M.H.M. owed any duty based on the Contract. The FAC contains no allegations whatsoever regarding the Contract. The word “contract” is found nowhere in the FAC. Plaintiff attempted to introduce allegations regarding the Contract, for the first time, in a proposed Fifth Amended Complaint but Plaintiff’s motion for leave to file was denied. (see Docs. 118 and 143).

         M.H.M. argues it is entitled to summary judgment because Plaintiff cannot demonstrate a genuine issue of fact on the element of duty. It is undisputed, according to M.H.M., that no M.H.M. employee saw Bolton and that he was not on M.H.M.’s caseload. M.H.M argues, therefore, that it did not have a patient-provider relationship with Bolton, which is necessary to establish a duty for Plaintiff’s claims.

         In Plaintiff’s initial reply brief, she argues that the Contract “supplies the duty.” (Doc. 129 at 31). The Contract created a duty, according to Plaintiff, by its requirement that M.H.M “provide comprehensive mental health treatment to state inmates in accordance with all applicable laws.” (Doc. 129 at 13). Plaintiff contends that the contractual requirement of “comprehensive mental health treatment” includes a suicide prevention program, and that M.H.M failed to provide such a program. (Id. at 14). In its Reply Brief, M.H.M responds that Plaintiff’s argument constitutes a new contract theory “found nowhere in her operative complaint, ” and that the Court should not consider it. (Doc. 132). M.H.M further argues this new theory is actually “contrary to the express language” of the Contract. (Id.).

         Following M.H.M.’s Reply Brief, Plaintiff filed a “Brief on the Element of Duty” in which she argues that M.H.M.’s duty “arises via statute by virtue of legislative mandate – irrespective of any contract or contract interpretation.” (Doc. 140 at 2). Plaintiff then argues how the statute alters the substance of the common law duty, rather than demonstrate how the statue (or the common law) imposes a duty on M.H.M., given the undisputed facts. For example, Plaintiff cites Section 6-5-484(a) of the Alabama Medical Liability Acts, which states that a healthcare provider’s “duty to the patient shall be to exercise such reasonable care” as other similarly situated providers. (Id. at 4). She also notes that Ala. Code § 6-5-548 mandates that the plaintiff produce a "similarly situated health care provider" expert to establish what the standard of care is. Plaintiff argues that expert testimony is vital to define the standard of care and determine whether it has been breached. (Id. at 2 – 5).

         Plaintiff’s arguments here largely presuppose the existence of a duty. “Liability for a breach of the standard of care depends, first, on the existence of a duty to the patient, which, in turn, depends on the existence of a physician-patient relationship creating the duty.” Wilson v. Teng, 786 So.2d 485, 498 -99 (Ala. 2000). As for a patient-provider relationship, Plaintiff argues this too is controlled by experts. (Id. at 3, citing Wilson, supra.).^[3]

         M.H.M. filed a Reply to Plaintiff’s “Brief on the Element of Duty, ” pointing to Plaintiff’s oscillating positions on the duty she alleges that M.H.M. bore to Bolton. (Doc. 141). M.H.M. then underscores its argument that summary judgment is due to be granted, given the undisputed facts that no M.H.M. employee ever saw Bolton, that Bolton was not on its caseload, and that the Contract placed the duty to triage mental health issues solely on ADOC.

         II. Legal Standard

         Summary judgment should be granted only if “there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11^th Cir. 1991). “If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made. [citation omitted] If, however, the movant carries the initial summary judgment burden . . ., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11^th Cir. 1993). “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ’ the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted).

         In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant . . .” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11^th Cir. 2003). However, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule ...