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Soto-Montes v. Corizon Health, Inc.

United States District Court, D. Kansas

February 28, 2018

CORIZON HEALTH, INC., et al., Defendants.



         This matter comes before the Court on two issues: 1) appointment of counsel to represent Plaintiff; and 2) Plaintiff's (Second) Motion to Compel Screening Panel and Request to Stay Proceedings pending recommendations by the panel (ECF No. 41). Plaintiff presently proceeds pro se and was granted the ability to proceed in forma pauperis (Order, ECF No. 5). For the reasons stated below, counsel is appointed to represent Plaintiff; his Motion to Compel Screening Panel is GRANTED in part and DENIED in part; and his request to stay the case is GRANTED in part and DENIED in part. Additionally, as outlined below, this case is temporarily stayed pending the parties' briefing on the issue of jurisdiction.

         I. Background

         Plaintiff Emmanuel Soto-Montes is currently incarcerated at the El Dorado Correctional Facility (EDCF) in El Dorado, Kansas. He filed this case claiming he received inadequate medical care at EDCF. Plaintiff made claims against six defendants: Corizon Health, Inc.[1] (“Corizon”), the contracted medical provider for EDCF; Travis Nickelson, NP[2]; Deanna Morris, LPN; James Heimgartner, the warden of EDCF; Ray Roberts, the former Secretary of the Kansas Department of Corrections (“KDOC”); Dr. Basheer A. Sayeed; and Dr. Gordon Harrod.

         The facts underlying Plaintiff's claims have been thoroughly outlined in a previous order (ECF No. 10, at 2-5) and will not be repeated. Generally, he alleges he suffered multiple bouts of severe abdominal pain from January 2015 through February 2016, which were not properly treated or diagnosed.

         Although the Court initially found his Complaint failed to state a claim upon which relief could be granted (Order, ECF No. 7), he was ordered to amend his pleading. His Amended Complaint contained claims for relief under: 1) 42 U.S.C. §§ 1983, 1985, and 1986; 2) K.S.A. § 65-4901 et seq.; 3) the Kansas Tort Claims Act; 4) the Eighth and Fourteenth Amendments to the Constitution; 5) Article Five of the Universal Declaration of Human Rights; and 6) common law provisions protecting against medical malpractice, battery, mistreatment of a confined person, breach of fiduciary duty and breach of contract. (See ECF No. 8; ECF No. 10, at 1-2.) On September 2, 2016, the Court dismissed Plaintiff's federal claims and the Universal Declaration of Human Rights claims against all Defendants, and dismissed defendants Roberts and Heimgartner. However, the Court found Plaintiff “made sufficient allegations to state a claim of medical negligence against defendants Corizon, Sayeed, Harrod, Nickelson and Morris” along with other potentially viable state law claims (Order, ECF No. 10, at 16).

         II. Appointment of Counsel

         During a July 19, 2017 scheduling conference, the Court granted plaintiff's motion to appoint counsel; however, the Court noted it would appoint specific counsel at a later date (ECF No. 51). Counsel is hereby provisionally appointed for the limited purpose of briefing jurisdiction and potentially moving forward with a medical malpractice screening panel. Appointment of counsel will be reevaluated when the screening panel has issued its recommendations, and the court has had the opportunity to review the same.

         IT IS THEREFORE ORDERED that Anne Hull and Andrew Foulston, both of the Hutton & Hutton Law Firm, LLC and members of the bar of this Court, are appointed to represent Plaintiff in this action. Ms. Hull and Mr. Foulston's address is 8100 E. 22nd Street North, Bldg. 1200, Wichita, Kansas 67226. Their telephone number is 316-688-1166. The Court also suggests that Ms. Hull and Mr. Foulston review D. Kan. Rules 83.5.3(e)(2) and (f), and regarding the reimbursement of out-of-pocket expenses incurred by appointed counsel.

         Copies of this Order shall be sent to Plaintiff and the attorneys appointed to represent Plaintiff.

         III. Jurisdiction

         Because the Court dismissed all of Plaintiff's federal claims (Order, ECF No. 10), there exists some question regarding the appropriateness of this federal court's jurisdiction over the remaining state claims. Whether the Court should assert supplemental jurisdiction over the state claims, or whether the Court has diversity jurisdiction under 28 U.S.C. § 1332(a), is unclear. Defendant Corizon is an out-of-state corporation, and the remaining individual defendants appear to be Kansas physicians. Although Plaintiff is currently incarcerated in the state of Kansas-which, on its face, may appear to destroy diversity-case law indicates a prisoner's domicile for purposes of the diversity statute is the domicile he had prior to incarceration.[3] However, the record is devoid of information from which the Court may glean Plaintiff's appropriate domicile.

         Because the Court may raise the issue of subject matter jurisdiction sua sponte, [4]the parties are ORDERED to brief the issue of this Court's proper jurisdiction over the remaining claims. Because the party invoking jurisdiction bears the burden to establish it, [5] Plaintiff must first file his brief regarding jurisdiction by March 30, 2018; Defendants must respond by April 13, 2018. Unless specifically requested, no replies will be permitted.

         IV. Plaintiff's (Second) Motion to Compel Screening Panel (ECF No. 41)

         Plaintiff first sought a medical malpractice screening panel within days after filing this action (ECF No. 4); then later filed a formal motion seeking the same relief (ECF No. 9). His motion was denied without prejudice, with instructions to refile his motion after all defendants had responded to the Complaint (Order, ECF No. 34). Pursuant to the Court's order, Plaintiff re-filed his Motion to Compel Screening Panel soon after all responsive pleadings had been filed. Although the issue of jurisdiction is potentially dispositive, in its discretion the Court will address Plaintiff's motion on its merits. In the event this Court has proper jurisdiction over this case, the case can then move forward in as swift a manner as possible.

         The two defendant physicians, Baseer A. Sayed, M.D. and Gordon Harrod, M.D., do not oppose convening a screening panel (ECF Nos. 43, 44), but object only to any stay of discovery, which will be addressed separately below. In its Response, Corizon does not address the screening panel request as it applies to defendants Travis Nickelson, NP; and Deanna Morris, LPN, but opposes it only regarding Corizon. Corizon contends the corporation itself is not a “health care provider” and is therefore not subject to the screening panel requirement (ECF No. 42). Therefore, the Court assumes defendants Nickelson and Morris do not oppose the convening of the panel. The lone opposition, then, to convening a screening panel is Corizon itself.


         Assuming for the sake of discussion that this Court possesses diversity jurisdiction over the remaining state claims (Order, ECF No. 10, at 16)[6], Kansas law applies. The parties do not dispute the application ...

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