United States District Court, N.D. Indiana, South Bend Division
JAMES BARNES, as Personal Representative of the ESTATE OF RACHEL A. BARNES, Deceased, Plaintiff
JOHN T. BOYD, Sheriff of LaPorte County, Indiana, et al., Defendants
OPINION AND ORDER
L. Miller, Jr. Judge United States District Court.
motions are ripe for ruling: Dr. Cooke's motion to
dismiss the third amended complaint until a medical review
panel has issued an opinion [Doc. No. 69]; Dr. Cooke's
alternative motion to stay proceedings until the review panel
opinion is issued (in which IUHLP Liquidation, Inc. joins)
[Doc. No. 80]; and IUHLP Liquidation's renewed motion for
judgment on the pleadings [Doc. No. 87]. For the following
reasons, Dr. Cooke's motion to dismiss is granted as to
Counts 5 and 6 of the complaint, and is denied as to the
§ 1983 claims raised in Counts 1-4; the motion to stay
is denied as moot; and IUHLP Liquidation's Rule 12(c)
motion is granted in part and denied in part.
Standard of Review
standard of review for a motion to dismiss under Fed.R.Civ.P.
12(b)(6) and a motion for judgment on the pleadings under
Rule 12(c) is the same - both challenge the complaint's
sufficiency, not its underlying merits. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 570 (2007);
Killingsworth v. HSBC Bank Nevada, 507 F.3d 614, 619
(7th Cir. 2007); Northern Ind. Gun & Outdoor Shows,
Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir.
1998). The court construes the complaint in the light most
favorable to the nonmoving party, accepts all well-pleaded
facts as true, and draws all reasonable inferences in the
plaintiff's favor. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Anicich v. Home Depot U.S.A., Inc.,
852 F.3d 643, 648 (7th Cir. 2017). Fed.R.Civ.P. 8(a)(2),
however, “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation, ”
Ashcroft v. Iqbal, 556 U.S. at 678, and legal
conclusions aren't entitled to any presumption of truth.
Dr. Cooke's Motion to Dismiss
Cooke moved to dismiss all claims against him (Counts 1-6)
because Mr. Barnes hasn't completed the medical panel
review process required under the Indiana Medical Malpractice
Act. The Act provides that: “an action against a health
care provider may not be commenced in a court in Indiana
before: (1) the claimant's proposed complaint has been
presented to a medical review panel... and (2) an opinion is
given by the panel.” Ind. Code. § 34-18-8-4. It
“grants subject matter jurisdiction over medical
malpractice actions first to the medical review panel, and
then to the trial court.” H.D. v. BHC Meadows
Hospital, Inc., 884 N.E.2d 849, 853 (Ind. App. 2008).
But the prohibition on court action imposed by the Indiana
legislature in Ind. Code. §§ 34-18-8-4 doesn't
affect this court's subject-matter jurisdiction over (or
the federal pleading requirements with respect to) the
constitutional claims raised in Counts 1-4, see Tacket v.
General Motors Corp., 93 F.3d 332, 334 (7th Cir.1996);
Estate of Rice ex rel. Rice v. Correctional Medical
Services, 596 F.Supp.2d 1208, 1225 (N.D. Ind. 2009), so
the court denies Dr. Cooke's motion to dismiss those
claims asserted against Dr. Cooke in Counts 5 and 6 are based
on state law, and so are subject to dismissal if they're
essentially a medical malpractice claim - they're
“based on health care or professional services that
were provided, or that should have been provided, by a health
care provider, to a patient”, see Ind. Code.
§ 34-18-2-18 (defining malpractice) - and the medical
review panel hasn't issued an opinion. See Estate of
Rice ex rel. Rice v. Correctional Medical Services, 596
F.Supp.2d at 1225; Hobson v. Dominguez, Cause No.
2:10-CV-429, 2012 WL 4361537, at *10-12 (N.D. Ind. Sep. 24,
2012); Hubbard v. Columbia Women's Hospital of
Indianapolis, Inc., 807 N.E.2d 45, 51-52 (Ind. App.
complaint alleges that Dr. Cooke “is a licensed Indiana
physician who, via telephone only, provided medical services
and advice regarding the decedent Rachel Barnes during the
time in question”; prescribed medications,
“without ever seeing [her]”; “failed to
provide reasonable medical care for an individual going
through alcohol withdrawal”; and that his
“wrongful acts” or omissions (“failure to
conduct an in-person medical examination” or to
“follow up concerning her condition”) caused her
death, in violation of Indiana's Wrongful Death Act
(Count 5), and other unidentified state law (Count 6). [Doc.
No. 82 at ¶ 23, 34, 66, 68, 89, and 91]. Those
allegations clearly fall within the definition of a
malpractice action, so Mr. Barnes had to comply with the
requirements in the Medical Malpractice Act before filing
and/or pursuing the current action. He hasn't done so.
Barnes filed a proposed medical malpractice complaint against
Dr. Cooke with the Indiana Department of Insurance on behalf
of his daughter's estate, but the medical review panel
hadn't issued an opinion when this suit was filed. In
response to Dr. Cooke's motion to dismiss, Mr. Barnes
voluntarily dismissed the proposed malpractice complaint
before the review panel had issued an opinion. But he
can't proceed with his state law claims against Dr. Cooke
in this court unless and until he's complied with Ind.
Code. § 34-18-8-4. The court grants the motion to
dismiss Counts 5 and 6 as to Dr. Cooke.
IUHLP Liquidation's Rule 12(c) Motion
moving for judgment on the pleadings, IUHLP Liquidation
contends that: it isn't a state actor and can't be
held liable for any of the constitutional violations alleged
in Counts 1-4 because it's contract with the County to
provide medical services to inmates only applies to inpatient
services and Ms. Barnes wasn't admitted to the hospital
when the blood test was performed; it can't be held
vicariously liable under 42 U.S.C. § 1983 for its
employees' isolated acts or omissions; and the court
should decline to exercise supplemental jurisdiction over the
state law claims asserted in Counts 5 and 7 after the federal
claims are dismissed.
Barnes alleges in the third amended complaint that IUHLP
Liquidation is directly and/or vicariously liable for Ms.
Barnes' death under federal and/or state law because it
willfully, wantonly, maliciously, recklessly and/or
(1) failed to contact the Sheriff's Department and/or
jail to inform it that Ms. Barnes' blood alcohol
“exceeded .400", “was at a dangerous and
life-threatening level, ” and “required medical