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Crisco v. Wexford Corporation

United States District Court, Fifth Circuit

August 8, 2013

ROBERT A CRISCO, Plaintiff,
v.
WEXFORD CORPORATION, et al., Defendants.

REPORT AND RECOMMENDATION

MICHAEL T. PARKER, Magistrate Judge.

This matter is before the Court on the Defendants' Motions to Dismiss [30][31][1] certain claims from this case. The Plaintiff did not respond to either motion. Upon due consideration of the submissions of the parties, the applicable law, and being fully advised in the premises, the undersigned recommends that the Motions to Dismiss [30][31] be GRANTED.

Factual Background

Plaintiff Robert A. Crisco, proceeding pro se and in forma pauperis, filed his civil rights Complaint [1] pursuant to 42 U.S.C. ยง 1983 on September 13, 2012. Plaintiff's initial claim occurred while he was a post-conviction inmate at South Mississippi Correctional Institute ("SMCI"). [1] at 4. Plaintiff was released on probation during part of the relevant time period (around March 17, 2009), but was arrested again in December of 2011 for allegedly violating probation. [1-2] at 2-3. According to the Mississippi Department of Corrections ("MDOC") website, Crisco appears to no longer be incarcerated. Plaintiff initially named Wexford Corporation, MDOC, Christopher Epps, and Dr. Willie Hall as defendants in this action. [1] at 1.

In his Complaint, Plaintiff alleges complications from a dental procedure which occurred at SMCI in May of 2008. [1] at 4. Plaintiff claims Dr. Shandard, [2] a dentist employed by Wexford Corporation, performed a tooth extraction which left a hole between his mouth and nasal cavity. [3] at 1-2. As a result of this procedure, Plaintiff claims he has experienced a great deal of pain and that he has since received inadequate medical treatment. Id. Plaintiff further complains that being left in an open-population cell block with a hole in his mouth exposed him to infections that could have resulted in death. Id.

Plaintiff attached his Request for Sensitive Administrative Remedy [1-1] and Request for Emergency Administrative Relief [1-2] to his Complaint [1]. In his Request for Sensitive Administrative Remedy, Plaintiff claimed he received information on September 11, 2008, that Dr. Shandard should not have removed the tooth and that this extraction led to multiple stitches and surgeries in an attempt to close the deep hole in his mouth. [1-1] at 2. Plaintiff complains that after informing doctors and medical staff at the clinic of his continued pain, he received no medication, and was deprived of his right to be free of cruel and unusual punishment. Id. On August 1, 2012, Plaintiff submitted an "Emergency Administrative Remedy Program (ARP'): History and Facts" addressed to Defendant Christopher Epps. [1-2] at 1. In this request, Plaintiff alleged that the hole from the tooth extraction had not yet healed, even after a series of five oral surgeries performed by Dr. Willie Hill. Id.

Plaintiff provided a copy of the ARP he filed in September of 2008, stating that the First Step was not answered until February 18, 2009, and that he had not received any response past that point. [1-2] at 1-2. The First Step Response Form [3-3], which was attached to the Complaint, is dated February 18, 2009, and appears to indicate that Plaintiff was "[l]ocated at unit 29 MSP." Plaintiff alleges that this delay in response from the administration "signified Dr. [Shandard] seriously messed up [his] mouth, by all accounts permanently since even five (5) oral surgeries failed to correct Dr. [Shandard's] dentistry." Id. at 3. Plaintiff responded via the Second Step on March 5, 2009. [3-4] at 1.

It was around this point in time (on March 17, 2009) that Plaintiff was released from prison until being arrested several months later for an alleged parole violation. [1-2] at 3. Plaintiff claims that during his release, he attempted to seek dental assistance but was unable to find anyone who was able to close the hole in his mouth. Id. at 2. Plaintiff further stated that Defendant Dr. Matthews warned that he would be susceptible of contracting osteomyelitis.[3] Id. Plaintiff alleges to have contracted the condition, leading to hospitalization while on probation. Id.

Not only is Plaintiff requesting relief in the form of corrective oral surgery and medical insurance, he is also claiming that the rest of his sentence should be suspended with unconditional release.[4] [1-2] at 3-4. Plaintiff further claims that he received no real medical attention while incarcerated and has not been provided the necessary treatment to close the hole permanently. [3] at 2-3.

By Order [11], the Court requested that Plaintiff provide more information regarding his claim and respond specifically to several questions regarding how the defendants violated his constitutional rights. [11] at 1. Plaintiff's response to the order [13] indicated the desire to add Dr. Woodall and Dr. Matthews as defendants in the case, which was allowed by the Court on October 30, 2012. [15] at 1. MDOC was then dismissed as a defendant sua sponte on November 1, 2011. [16] at 1-3.

Standard

In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "[t]he complaint must be liberally construed in favor of the Plaintiff, and all facts pleaded in the complaint must be taken as true." Lowrey v. Texas A&M Univ. Sys. , 117 F.3d 242, 247 (5th Cir. 1997). However, in order to survive a motion to dismiss, Plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (holding that dismissal for failure to state a claim upon which relief may be granted does not require appearance, beyond a doubt, that plaintiff can prove no set of facts in support of claim that would entitle him to relief, abrogating Conley v. Gibson, 355 U.S. 41 (1957)) (emphasis added); see also In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

In general, the court may not look beyond the pleadings when deciding a motion to dismiss. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). However, a court may refer to matters of public record and documents attached or referred to in the complaint. See Cinel, 15 F.3d at 1343 n.6; Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). Further, in a prisoner pro se action, the Court must look beyond the formal ...


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