Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Toliver v. Corizon Health

United States District Court, D. Oregon

November 7, 2017

DERRICK T. TOLIVER, Plaintiff,
v.
CORIZON HEALTH, SHARON BRENNAN, MANDY, and CRAIG ROBERTS, Defendants.

          FINDINGS AND RECOMMENDATION

          Honorable Paul Papak, United States Magistrate Judge.

         Incarcerated plaintiff pro se Derrick T, Toliver filed this action against defendants identified as Sharron Brennan, Clackamas County Jail, Corizon Health ("Corizon"), and Mandy (collectively with Brennan and Corizon, the "Corizon defendants") on October 21, 2016. Toliver amended his complaint effective June 26, 2017, abandoning his claims to the extent alleged against Clackamas County Jail, and adding as a defendant Craig Roberts, the Sheriff of Clackamas County. By and through his amended complaint, Toliver alleges that at material times he was incarcerated in the Clackamas County Jail (the "CCJ"), where he was exposed to mold and/or mildew which impaired his ability to breathe, apparently by exacerbating a preexisting asthma condition. Toliver further alleges that while he was incarcerated in the CCJ, he complained about difficulty breathing and received inadequate medical care in response to those complaints from Brennan and Mandy, each an employee of Corizon (which is contracted to provide medical and mental health services to CCJ inmates). Arising out of the foregoing, Toliver alleges all defendants' liability, apparently under 42 U.S.C. § 1983, for the violation of his unspecified Eighth Amendment and/or Fourteenth Amendment rights, and under Article I, Section 13 of the Oregon Constitution. This court has federal-question jurisdiction over Toliver's Section 1983 claims pursuant to 28 U.S.C. § 1331, and may properly exercise supplemental jurisdiction over his state constitutional claims pursuant to 28 U.S.C. § 1367.

         Now before the court are Roberts' motion (#40) to dismiss Toliver's Section 1983 claim against him and the Corizon defendants' motion (#49) to dismiss Toliver's Section 1983 claims against them. I have considered the motions and all of the pleadings and papers on file. For the reasons set forth below, Roberts' motion (#40) to dismiss should be granted, the Corizon defendants' motion (#49) to dismiss should be granted in part and denied in part, and Toliver's Section 1983 claims should be dismissed without prejudice to the extent alleged against defendants Roberts and Corizon only.

         LEGAL STANDARD

         To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" specifically, it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To raise a right to relief above the speculative level, "[t]he pleading must contain something more .. . than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004); see also Fed. R. Civ. P. 8(a). Instead, the plaintiff must plead affirmative factual content, as opposed to any merely conclusory recitation that the elements of a claim have been satisfied, that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at 556. "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009), citing Iqbal, 556 U.S. at 678.

         "In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). In considering a motion to dismiss, this court accepts all of the allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Kahle v. Gonzales, 474 F.3d 665, 667 (9th Cir. 2007). Moreover, the court "presume[s] that general allegations embrace those specific facts that are necessary to support the claim." Nat'l Org. for Women v. Scheidler, 510 U.S. 249, 256 (1994), quoting Liijan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court need not, however, accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

         FACTUAL BACKGROUND

         I. The Parties

         Plaintiff Toliver is an incarcerated prisoner currently housed at the Snake River Correctional Institution who at all material times was housed in the Clackamas County Jail.

         Defendant Roberts is the Sherriff of Clackamas County.

         Defendant Corizon is a privately-held correctional health care corporation providing medical and mental health services to CCJ inmates under contract with Clackamas County. Defendant Brennan is Corizon's head nurse at the CCJ. Defendant Mandy is a nurse employed by Corizon at the CCJ.

         II. Toliver's Allegations in Support of His Claims[1]

         While Toliver was incarcerated at the CCJ, he was exposed to mold and mildew in the shower area. See Amended Complaint at IV(I). Toliver reported the presence of mold and mildew and was advised that no "dangerous" mold was present. See Id. It is Toliver's belief that CCJ personnel determined that the mold and mildew that he observed was not dangerous, and on that basis disregarded its presence in the shower area. See Id. Toliver became ill as a result of exposure to the mold and mildew in the CCJ shower area, specifically suffering symptoms of impaired ability to breathe. See Id. It appears that Toliver's theory of defendant Roberts' liability is premised solely on Roberts' supervisory responsibility for conditions at the CCJ in his capacity as the Sheriff of Clackamas County. See id., passim.

         After Toliver became ill, lie sought medical treatment from Corizon, See Id. at IV(I). Corizon employees treated Toliver's symptoms chiefly with a "nebulizer breathing treatment." Id. On one occasion, Brennan discontinued the nebulizer breathing treatment "for a few days." Id. Additionally, Brennan refused to prescribe prednisone for treatment of Toliver's symptoms notwithstanding that, approximately one month later, after Toliver had been transferred to another correctional facility, another doctor opined that Toliver should receive prednisone. See id.

         On "several occasions" Mandy refused to provide Toliver with the nebulizer breathing treatment upon his request. Id. On one additional occasion, Mandy told Toliver she would bring him his "asthma pump" in "about" five minutes, but did not in fact bring him the pump. Id.. Instead, another Corizon employee brought Toliver the pump after a delay of approximately two hours, after Toliver had complained about Mandy's failure to bring it earlier. See id.

         Toliver's symptoms worsened as a result of the medical care he received at the CCJ. See id.

         Toliver alleges that his theory of Corizon's liability is premised on its status as Brennan's and Mandy's employer. See Id.

         III. Toliver's Assertions of Fact Not Alleged by and through His Amended Complaint

         At this pleading stage of these proceedings, Roberts and the Corizon defendants do not challenge Toliver's ability to establish the truth of his allegations through evidence, but rather challenge whether his allegations themselves, on the assumption that they will ultimately be proven true and construed in the light most favorable to him, are sufficient to state a claim upon which this court can grant relief. It is accordingly appropriate for this court to disregard evidence or assertions of fact ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.