United States District Court, N.D. Oklahoma
OPINION & ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
Court's consideration are two motions to dismiss: one
filed by defendant Correctional Healthcare Companies, Inc.
(“CHC”) on its own behalf (Doc. 28) and one filed
by CHC on behalf of defendants Correctional Healthcare
Management, Inc. (“CHM”) and Correctional
Healthcare Management of Oklahoma, Inc. (“CHMO”).
Michael Mikus was incarcerated at the David L. Moss Criminal
Justice Center (the “Tulsa County Jail”) from
November 4, 2009, to January 13, 2010. At some point near the
beginning of his incarceration, Mikus was physically
assaulted by a fellow inmate, which caused an injury to his
left eye. He notified jail personnel of his need for medical
attention and was seen by the jail's nursing staff, who
plaintiff alleges conducted a minimal screening and sent him
on his way. He further alleges that he requested to see a
doctor but was denied the opportunity to see a physician.
Mikus states that he reported to medical staff and Tulsa
County Jail personnel that he was experiencing blindness and
auras in his vision.
least a month after his injury, Mikus was transferred into
the custody of the Oklahoma Department of Corrections. At
that time, he was seen by a physician who recognized that
Mikus had suffered a detached retina and that surgery was
immediately necessary. Mikus underwent several surgeries
thereafter. Mikus alleges that, because of the extended delay
in receiving the necessary surgeries, the surgeries were
largely unsuccessful and he now suffers from loss of vision
and glaucoma. Mikus alleges that the defendants violated his
civil rights by failing to render adequate medical care, and
he cites the policies, practices, and/or customs at the Tulsa
County Jail as being the cause of his injuries.
initially filed suit against CHMO and Stanley Glanz,
then-Sheriff of Tulsa County, on November 1, 2011, in the
Tulsa County District Court. (See Tulsa County
District Court No. CJ-2011-6765). The case was dismissed
without prejudice on February 6, 2012. Mikus again filed suit
in the Tulsa County District Court on February 6, 2013,
naming the same two defendants as before. The case was
removed to this Court, and Mikus filed an Amended Complaint
(Doc. 1) on February 26, 2013. The Amended Complaint added
two additional defendants: CHC and CHM.
October 27, 2015, an Agreed Judgment was entered as to
defendant Glanz. (Doc. 22). The plaintiff's claims
against the remaining defendants include a claim of cruel and
unusual punishment in violation of the Eighth and Fourteenth
Amendments to the U.S. Constitution, pursuant to 42 U.S.C.
§ 1983, and negligence. CHC now seeks dismissal of the
Amended Complaint on its own behalf and on behalf of the CHM
motion on behalf of CHM and CHMO, CHC asserts that the other
two entities have merged into CHC and no longer exist in
their own right. (See Doc. 31 at
9-10). CHC has provided a copy of the Statement
of Merger that indicates CHMI and CHMO merged into CHC with
the effective date of December 31, 2011. (Doc. 31-1). CHC
also provided to the Court Certificates of Withdrawal, signed
by the Oklahoma Secretary of State, stating that CHMI and
CHMO have withdrawn from doing business in Oklahoma. (Doc.
31-2, Doc. 31-3).
argument has been made in several other cases before this
Court, (see Doc. 18 in No. 13-CV-111-JED; Doc. 22 in
No. 13-CV-315-JED; Doc. 15 in No. 14-CV-569-JED), and the
undersigned has previously declined to grant dismissals on
this basis. In the March 28, 2014, unpublished decision in
Revilla v. Glanz, this Court stated:
[P]laintiffs note that the CHM defendants' argument that
they ceased to exist as of December 31, 2011 is inconsistent
with a number of Corporate Disclosure Statements filed by
those defendants in this Court after December 31, 2011.
(See Doc. 17 and 18 in No. 11-CV-720; Doc. 13 in No.
11-CV-755; Doc. 24 in No. 12-CV-68; Doc. 76 in No. 11-CV-457;
and Doc. 20 in No. 11-CV-696). The Court also notes that CHMO
filed an Answer in another case in this Court on May 20,
2013, almost 17 months after it allegedly ceased to exist.
(Doc. 22 in No. 13-CV-112). In yet another case, CHMO filed
an Answer on June 17, 2013, after plaintiffs
initiated this lawsuit. (See Doc. 6 in No.
13-CV-303). Plaintiffs also assert that dismissal of the CHM
defendants is improper because CHMO entered into an amendment
to the Health Services Agreement for the Tulsa County Jail,
which was effective July 1, 2012, six months after
the CHM defendants assert that they ceased to exist. (Doc.
357). That amendment was signed on behalf of both CHM and CHC
on June 27, 2012, and the recitals to the amendment provided
that “CHMO as part of its corporate re-branding has
merged into [CHC]; and . . . [CHC] and CHMO have common
corporate ownership, officers and directors.”
The Court recognizes that the Colorado statute appears to
support the CHM defendants' argument. However, the CHM
defendants have not explained the inconsistencies in their
representations to the Court in filings in other cases, nor
have they provided any on point legal authority to support
their argument for dismissal where the allegedly non-existent
entities continued to hold themselves out as existing
entities after they merged. At this time, the Court does not
have enough information to determine whether the exclusion or
inclusion of the CHM defendants is appropriate in this case.
Revilla v. Glanz, No. 13-CV-315-JED, 2014 WL
1056694, at *1 (N.D. Okla. Mar. 18, 2014) (unpublished).
Revilla decision, the Court denied the dismissal
motion, without prejudice, and directed that “[s]hould
the CHM defendants wish to reassert a dispositive motion on
this issue at a later date, they should include an
explanation for the discrepancies in their post-merger
representations to the Court regarding their status as
separate existing entities, and they also shall provide legal
authorities supporting their argument for dismissal on the
grounds asserted.” Id. In a later filing in
the Revilla case, CHC has attempted to explain these
inconsistencies by pointing out that the other Northern
District cases identified by the Court in its March 28, 2014
Order involved injuries that preceded the date of the merger.
(See Doc. 250 in No. 13-CV-315-JED, at 6). Because
the alleged injury to Michael Mikus in the present case also
occurred before the date of the merger, this argument is
further argues in the Revilla filing that the CHM
defendants were initially represented by different counsel in
those other six cases. (Id.). Yet, in Cox v.
Glanz, one of CHC's current counsel, Sean P. Snider,
filed a motion for summary judgment on February 28,
2013, on behalf of CHC, CHM, and CHMO without once
mentioning that CHM and CHMO had supposedly ceased to exist
more than a year prior. (See Doc. 187 in No.
notably, CHC asserts in the Revilla filing that
“CHC assumed all legal liabilities and obligations of
CHMO and CHM when the latter merged in CHC.” (Doc. 250
in No. 13-CV-315-JED, at 9). Referring to one of the
Revilla plaintiffs, CHC argues that any recovery may
be recouped from CHC; “[t]hus, no injustice will result
by appropriately ruling that CHM and CHMO's liabilities
have been assumed by CHC as a matter of law.”
(Id. at 10). Yet, the Court observes that CHC's
first argument in its own motion to dismiss in this case is
that plaintiff's § 1983 claim against CHC must be
dismissed for failure to specifically name CHC (as opposed to
CHMO) as a defendant until after the applicable statute of
limitations expired. (See Doc. 28 at 8-10). This
position strikes the Court as inconsistent with CHC's
assurances in Revilla. It appears that the dismissal
of Mikus' § 1983 claims against CHM and CHMO is, in
fact, intended to prejudice Mikus and leave him without means
of relief. The Court is not inclined to allow the confusion
over these corporate entities to become an escape hatch in
this case; thus, CHM and CHMO defendants will not be excluded
from this case on the basis of their merger into CHC unless
and until the Court is persuaded that doing so would not
unduly prejudice the plaintiff.
the Court rejects the argument that the plaintiff's
§ 1983 claim against CHC is barred by the statute of
limitations. The U.S. Supreme Court has held that “the
forum state's personal injury statute of limitations
should be applied to all § 1983 claims.” Blake
v. Dickason, 997 F.2d 749, 750 (10th Cir. 1993) (citing
Wilson v. Garcia, 471 U.S. 261, 280 (1985)).
“[W]here state law provides multiple statutes of
limitations for personal injury actions, courts considering
§ 1983 claims should borrow the general or residual
statute for personal injury actions.” Owens v.
Okure, 488 U.S. 235, 249-50 (1989). The applicable
statute of limitations, then, is two years, as set forth in
Okla. Stat. tit. 12, § 95(3). See Burkley
v. Corr. Healthcare Mgmt. of Okla., 141 Fed.Appx. 714,
715 (10th Cir. 2005) (unpublished).
civil rights action accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the
action.” Baker v. Bd. of Regents of State of
Kan., 991 F.2d 628, 632 (10th Cir. 1993). Because the
alleged injury in this case occurred between November 4,
2009, and January 13, 2010-when Mikus was incarcerated at the
Tulsa County Jail-the two-year limitation period expired, at
the latest, on January 13, 2012.
federal court handling a § 1983 claim must also apply
the forum state's relevant tolling provisions. See
Hardin v. Straub, 490 U.S. 536, 538 (1989). Oklahoma has
a savings statute that provides as follows:
If any action is commenced within due time, and a judgment
thereon for the plaintiff is reversed, or if the plaintiff
fail in such action otherwise than upon the merits, the
plaintiff . . . may commence a new action within one (1) year
after the reversal or failure although the time limit for
commencing the action shall have expired before the new
action is filed.
Okla. Stat. tit. 12, § 100. It is undisputed
that Mikus filed his original action before the statute of
limitations expired. Similarly, it is clear that the first
dismissal was not on the merits of the case. (See
Doc. 31-4). Thus, Mikus had an additional year to bring a new
action under this savings statute.
issue presented by CHC is that CHC itself was not named as a
defendant until the plaintiff filed his Amended Complaint on
February 26, 2013. The Oklahoma savings statute requires the
second suit to “allege substantially the same cause of
action and feature substantially the same parties as the
first one.” Clark v. Phillips Petroleum, 677
P.2d 1092, 1095 (Okla.Civ.App. 1984) (citing Haught v.
Cont'l Oil Co., 136 P.2d 691 (1943)). A plaintiff,
for example, may refile against a successor corporation when
the successor has acquired the assets and assumed the
liabilities of the originally named company. Id.
This is allowed because there is an “identity of
interest” between the first corporation and the
successor. See Nusbaum v. Knobbe, 23 P.3d 302, 305
(Okla.Civ.App. 2001). In this case, if what CHC claims about
the merger of the CHM defendants into CHC is accurate, then
the plaintiff could properly join CHC, due to its identity of
interest with the originally-named defendant.
also asserts that claims against CHM must be dismissed
because CHM was not originally included as a defendant in the
plaintiff's suit. The Court is not persuaded by this
argument and, instead, finds that the February 26, 2013
amendment to the ...