Martin v. Perman

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF. #27

          S. Kato Crews, United States Magistrate Judge

         This Recommendation addresses Defendant Daphne G. David's (“David”) Motion to Dismiss (“Motion”), filed September 18, 2018. [ECF. #27.] The Motion was referred to the magistrate judge for a recommendation. [ECF. #28.] Plaintiff Flecia Martin (“Martin”) filed her Response [ECF. #48], which was followed by David's Reply. [ECF. #49.] Martin filed a surreply on January 2, 2019. [ECF. #50.] Although surreplies are not contemplated by the Federal Rules, the Court, in its discretion, has considered the surreply along with the other filings. For the following reasons, the Court RECOMMENDS that the Motion be GRANTED.

         SUMMARY FOR THE PRO SE PARTY

         The Court is recommending that Martin's claims against David be dismissed. Upon a review of the pleadings in this case, the Court concludes that Martin has failed to allege sufficient facts to support her claims for negligent hiring, supervision, and training. To the extent that Martin seeks to hold David vicariously liable for the physician defendants' conduct, the Court concludes that Martin has failed to allege an employment relationship, and the claim is barred by the corporate practice of medicine doctrine. Martin has 14 days after service of this Recommendation to file specific written objections to this Recommendation with Judge Moore for his review. Judge Moore may either adopt or reject this Recommendation, and issue an order based on his own findings and conclusions. Should Judge Moore adopt this Recommendation, Martin's claim against David will be dismissed.

         BACKGROUND

         According to the Amended Complaint, on February 2 and 10, 2015, Martin visited the Emergency Room of North Suburban Medical Center with complaints of nausea, vomiting, and a headache. [ECF. #14 at p.2.] Martin alleges that the named physician defendants^[1] administered a number of drugs that were not clinically indicated and “not the best treatment for her symptoms.” [Id. at p.7]

         In addition, Martin alleges that David, who is President and CEO of North Suburban Medical Center, “neglected to hire and/or adequately train emergency room staff” regarding the proper drug treatments for Martin's symptoms. Martin also alleges that David “neglected to adequately inform her staff of the dangers of giving” drugs that are not clinically indicated. Martin contends that David should be vicariously liable for the actions of the physician defendants. [Id. at p. 9.]

         STANDARD OF REVIEW

         A. Rule 12(b)(6)

         In deciding a motion under Fed.R.Civ.P. 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard requires more than the sheer possibility that a defendant has acted unlawfully. Id. Facts that are “merely consistent” with a defendant's liability are insufficient. Id. “[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her; and what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).

         The Court's ultimate duty is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). “Nevertheless, the standard remains a liberal one, and ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.'” Morgan v. Clements, No. 12-cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar. 18, 2013) (quoting Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)).

         B. Pro Se Parties

         The Court acknowledges that Martin is not an attorney. Consequently, her pleadings and other papers are construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall, 935 F.2d at 1110 (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “[I]f the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. But this Court cannot act as a pro se litigant's advocate. Id. It is the responsibility of the pro se plaintiff to provide a simple and concise statement of each claim and the specific conduct that gives rise to them. See Willis v. MCI Telecomms., 3 F.Supp.2d 673, 675 (E.D. N.C. 1998). The Court may not “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by ...