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Mikus v. Correctional Healthcare Management of Oklahoma, Inc.

United States District Court, N.D. Oklahoma

February 20, 2019

MICHAEL MIKUS, Plaintiff,
v.
(1)CORRECTIONAL HEALTHCARE MANAGEMENT OF OKLAHOMA, INC.; (2) CORRECTIONAL HEALTHCARE MANAGEMENT, INC.; (3) CORRECTIONAL HEALTHCARE COMPANIES, INC. Defendant.

          OPINION & ORDER

          JOHN E. DOWDELL UNITED STATES DISTRICT JUDGE

         For the 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”). (Doc. 31).

         I. Background

         Plaintiff 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.

         At 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.

         Mikus 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.

         On 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 and CHMO.

         II. CHM/CHMO/CHC

         In its 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).[1] 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).

         This 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.” (Id.).
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).

         In the 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 inapplicable here.

         CHC 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. 11-CV-457-JED).

         Most 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.[2]

         Furthermore, 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).

         “A 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.

         Yet, a 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.

         The 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.

         CHC 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 ...


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