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Dumont v. Corrections Corporation of America

United States District Court, D. Vermont

June 2, 2016

MELISSA DUMONT, as Personal Representative for the ESTATE OF ROBERT DONALD HUTT, Plaintiff,
v.
CORRECTIONS CORPORATION OF AMERICA, CORRECT CARE SOLUTIONS, LLC, ANDREW PALLITO, MICHAEL E. RAPAPORT, and MITCHELL MILLER, Defendants.

          OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (Docs. 83, 104)

          Christina Reiss, Chief Judge United States District Court

         This matter came before the court for a de novo review of the Magistrate Judge's January 26, 2016 Report and Recommendation ("R & R") (Doc. 104), in which he recommended the court grant Defendant Corrections Corporation of America's ("CCA") motion to sever claims against it pursuant to Fed.R.Civ.P. 21, and transfer them to the District of Arizona pursuant to 28 U.S.C. § 1404(a). (Doc. 83.) Plaintiff Melissa Dumont objects to the R & R's conclusions that severance and transfer are appropriate, arguing that the Magistrate Judge applied incorrect standards in making those recommendations. Defendant CCA asks that the R & R be adopted and its pending motions be granted.

         Stacey A. Adamski, Esq. represents Plaintiff. Daniel P. Struck, Esq., Sandra A. Strempel, Esq., and Jennifer G. Mihalich, Esq. represent CCA. Assistant Attorney General Megan J. Shafritz represents former Vermont Department of Corrections ("DOC") Commissioner Andrew Pallito.

         I. Factual and Procedural Background.

         A. Factual Background.

         In her Third Amended Complaint, Plaintiff alleges that DOC contracted with CCA in January 2007 to house inmates in facilities operated by CCA located outside the State of Vermont. Plaintiff claims that in May 2010, Defendants Pallito and CCA amended their contract to house Vermont inmates in Florence, Arizona. The contract allegedly required CCA to "house, guard, and provide all necessary care for certain inmates under the care and custody of VT DOC." (Doc. 108 at 5, ¶ 12.) The contract also allegedly required CCA to "comply with Vermont law, 28 V.S.A. § 801 et seq. and provide medical care in accordance with the prevailing standard of care." Id. at 6, ¶ 19.

         In 2010, Robert Donald Hutt, [1] a Vermont inmate, was allegedly transferred to the CCA facility in Florence, Arizona (the "Florence facility"). Beginning in February 2013, Plaintiff alleges that Mr. Hutt complained to the medical staff at the Florence facility about left hip pain, and that had medical staff ordered an x-ray of Mr. Hutt's left leg and hip at that time, they would have discovered that Mr. Hutt suffered from osteosarcoma, a type of bone cancer. Instead, medical staff purportedly "inexplicably ignored" at least seven "Sick Call" requests for treatment, in which Mr. Hutt described his pain and the effects the pain had on his ability to walk and sleep. Id. at 7-8, ¶ 24. Medical staff apparently concluded that Mr. Hutt did not need treatment for his leg and hip pain because he could perform activities of daily living. As a result, they only prescribed Ibuprofen for his pain. After Mr. Hutt's alleged repeated requests for treatment, an unnamed physician at the Florence facility examined Mr. Hutt and recommended that he undergo a magnetic resonance imaging examination. Plaintiff asserts that CCA ignored this recommendation.

         On November 27, 2013, Mr. Hutt's femur broke while he was standing in his cell. Mr. Hutt was transported to a nearby hospital for emergency surgery in which femur abnormalities were allegedly "obvious on sight." Id. at 9, ¶| 31. On December 3, 2013, Mr. Hutt returned to the Florence facility, where he was confined to a wheelchair because of a wound from the surgery on his thigh. After his return to the Florence facility, Mr. Hurt allegedly routinely suffered from poor medical care, including allegedly being "forced to sleep in his wheelchair[, ]" and "forced to maintain IV lines for days on end[.]" Id. at 10, ¶¶ 38, 41. Plaintiff further alleges that in order to have a bed and a mattress, he had to leave the medical unit and return to his cell in the general population. She asserts that CCA and its employees failed to provide Mr. Hurt with physical therapy after his surgery and, as a result, he developed deep vein thrombosis, requiring additional surgery.

         On December 5, 2013, Mr. Hutt was diagnosed with osteosarcoma. CCA and its employees allegedly did not advise Mr. Hutt of the cancer diagnosis or authorize chemotherapy treatment until January 14, 2014. On January 28, 2014, Mr. Hutt began chemotherapy.

         In March 2014, Mr. Hutt was transferred to Southern State Correctional Facility in Springfield, Vermont (the "Springfield facility"). There, Mr. Hutt was under the medical care of Defendant Correct Care Solutions, LLC ("CCS"), and its employees Defendants Dr. Michael Rapaport and Dr. Mitchell Miller (collectively, the "Vermont Defendants"). DOC allegedly contracted with CCS "to provide comprehensive health care to Vermont inmates in Vermont." Id. at 4, ¶ 7. While Mr. Hutt was incarcerated at the Springfield facility, his tolerance of and reaction to the chemotherapy was allegedly not properly monitored, causing his feet to become inflamed and infected. Thereafter, the Vermont Defendants allegedly stopped administering Mr. Hurt's pain medication "without a valid cause or justification." Id. at 12, ¶ 53.

         On August 13, 2014, Mr. Hutt was released to the DOC's Field Supervision Unit. He lived with his sister in Windsor, Vermont until his death on October 27, 2014 from osteosarcoma.

         B. Procedural History.

         On April 9, 2015, Plaintiff filed a Second Amended Complaint naming CCA, its employees, CCS, Dr. Rapaport, Dr. Miller, and Commissioner Pallito as Defendants. On June 17, 2015, the court dismissed CCA's employees for lack of personal jurisdiction. On July 10, 2015, Plaintiff initiated a civil action in the District of Arizona, asserting claims against CCA's employees in that forum (the "Arizona Action"). In the Arizona Action, Plaintiff alleges that CCA's employees violated Mr. Hutt's rights under the Eighth and Fourteenth Amendments by failing to properly treat him after he was diagnosed with osteosarcoma. Her Complaint includes state law claims of negligence and medical malpractice. CCA is defending and indemnifying its employees in the Arizona Action.

         On November 17, 2015, the Magistrate Judge issued a Report and Recommendation, recommending Commissioner Pallito's dismissal from the case. Plaintiff objected to the Report and Recommendation and filed a motion for leave to file a Third Amended Complaint. On March 7, 2016, the Magistrate Judge granted leave to amend. On March 8, 2016, Plaintiff filed the Third Amended Complaint. On March 11, 2016, the court adopted the Magistrate Judge's Report and Recommendation, and ordered nunc pro tunc that leave to amend should be granted for Plaintiffs Third Amended Complaint.

         In her Third Amended Complaint, Plaintiff asserts five causes of action against CCA: Count One for cruel and unusual punishment under the Eighth Amendment; Count Two for negligent medical care and treatment; Count Four for gross negligence; Count Five for medical malpractice;[2] and Count Six for negligence. Plaintiff also seeks damages pursuant to Vermont's wrongful death statute, 14 V.S.A. § 1491, compensatory and punitive damages, and attorney's fees and costs.

         II. Conclusions of Law and Analysis.

         A. Standard of Review.

         A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual or legal conclusions of the ...


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