United States District Court, D. Vermont
MELISSA DUMONT, as Personal Representative for the ESTATE OF ROBERT DONALD HUTT, Plaintiff,
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
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.
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.
Factual and Procedural Background.
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.
2010, Robert Donald Hutt,  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.
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
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
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.
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
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.
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.
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; 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
Conclusions of Law and Analysis.
Standard of Review.
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 ...