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Flores v. Nickelson

United States District Court, D. Kansas

March 15, 2019

JULIAN FLORES, Plaintiff,
v.
TRAVIS NICKELSON, et al., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Julian Flores is a prisoner at the El Dorado Correctional Facility (“EDCF”) in El Dorado, Kansas. He brought this action under 42 U.S.C. § 1983, alleging deliberate indifference in violation of the Eighth Amendment after he suffered a groin injury while exercising in his jail cell. The Court dismissed as untimely his § 1983 claims against Defendants C. Gordon Harrod, M.D., Deanna R. Morris, and Corizon Health, [1] leaving a remaining claim against Defendant Travis Nickelson, an Advanced Practice Registered Nurse (“APRN”). The Court subsequently granted Plaintiff leave to amend his claim to assert two new claims: a claim for medical malpractice against Nickelson and a third-party beneficiary breach of contract claim (Count III) against Corizon, LLC (“Corizon”).[2] This matter is now before the Court on Defendant Corizon's Motion to Dismiss Count III of Plaintiff's Second Amended Complaint (Doc. 87) for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Corizon's motion is denied.

         I. Legal Standard

         To survive a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), a complaint must contain factual allegations that, assumed to be true, “raise a right to relief above the speculative level”[3] and must include “enough facts to state a claim for relief that is plausible on its face.”[4]Under this standard, “the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[5] The plausibility standard does not require a showing of probability that “a defendant has acted unlawfully, ” but requires more than “a sheer possibility.”[6] “[M]ere ‘labels and conclusions,' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.”[7] Finally, the court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[8]

         The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.'”[9] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[10] Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[11] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[12]

         II. Facts

         The following facts are alleged in the Second Amended Complaint and assumed to be true for the purposes of deciding this motion. Plaintiff suffered a groin injury while exercising in his cell on February 24, 2014. He submitted a Health Services Request Form requesting to be seen by a doctor, but was instead seen by Nickelson, an APRN at EDCF. After Nickelson prescribed Plaintiff antibiotics and pain medication, Plaintiff submitted Health Services Request Forms on February 25, 26, 27 and 28, complaining of severe pain and seeking to see a doctor. He was eventually seen by Nickelson on February 28. Plaintiff submitted another Health Services Request Form on April 1, 2014, and on April 7, was seen by a doctor who referred him to a urologist. On May 1, 2014, Plaintiff was seen by the urologist, who on June 6, 2014, performed an orchiectomy, surgically removing Plaintiff's left testicle.

         On or about October 3, 2013, the Kansas Department of Corrections (“KDOC”) and Corizon entered into an Agreement for comprehensive health care services at Kansas correctional facilities, including but not limited to, EDCF. Corizon is a Delaware corporation engaged in providing medical care and treatment to persons in correctional facilities such as EDCF. The Agreement required Corizon to provide comprehensive healthcare services to inmates from January 1, 2014 until June 30, 2015, subject to four additional two-year extensions, in exchange for payment by the KDOC.

         Plaintiff alleges that the nature of the Agreement between Corizon and the KDOC is such that both parties intended the inmates in the care, custody, and control of the KDOC and/or the EDCF to directly and substantially benefit from the performance of the Agreement. Plaintiff further alleges the purpose of the Agreement is clear, and it is intended to benefit inmates in the care, custody, and control of the KDOC and/or EDCF, including Plaintiff, the intended third-party beneficiary of the Agreement. At all relevant times, Plaintiff was an inmate in the care, custody, and control of the KDOC. Plaintiff claims that Corizon, by and through its agents, failed to provide Plaintiff with health care services that met the standard of the care of a physician and/or nurse in the State of Kansas, and Corizon therefore breached the Agreement. Upon information and belief, the State of Kansas, by and through the KDOC, paid Corizon pursuant to the Agreement. As a direct and proximate result of Corizon's material breach of the Agreement, Plaintiff suffered severe pain, mental anguish, and an agonizing medical condition that was easily treatable and curable.

         III. Discussion

         A. Breach of Contract

         Corizon first moves to dismiss Count III on the grounds that Plaintiff lacks standing to sue as a third-party beneficiary, and alternatively, that Plaintiff fails to allege a breach of the contract between Corizon and the KDOC that would give rise to a third-party beneficiary claim. The Court discusses each argument in turn.

         1. Standing

         The Court first addresses whether Plaintiff has standing to maintain a breach of contract action as a third-party beneficiary.[13] In Kansas, “a qualified third-party beneficiary plaintiff [may] enforce a contract expressly made for his or her benefit even though he or she was not a party to the transaction.”[14] To establish this standing, a plaintiff must show “he is one who the contracting parties intended should receive a direct benefit from the contract.”[15] Because contracting parties are presumed to act for themselves, the intent to benefit a third party “must be clearly expressed in the contract.”[16] However, the third-party beneficiary need not be an exclusive beneficiary, as the contract may “benefit the contracting parties as well.”[17]

         In determining whether the contracting parties intended to directly benefit a third party, courts apply the general rules of contract construction.[18] “The intention of the parties [is] determined from the instrument itself where the terms are plain and unambiguous. . . . However, [courts] will consider evidence of the facts and circumstances surrounding its execution when the instrument is ambiguous on its face and requires aid to clarify its intent.”[19]

         Plaintiff contends that he has pleaded sufficient facts in support of his third-party contractual claim. Plaintiff argues the purpose of the Agreement between Corizon and the KDOC-to benefit inmates in the custody of the KDOC including Plaintiff-is “clear.” In support, Plaintiff cites to allegations in the Second Amended Complaint that the contract “required Corizon to provide comprehensive healthcare services to inmates at the [EDCF]”;[20]that there is “no benefit to the Agreement provided to the [KDOC] and/or the [EDCF] apart from the benefits received by inmates in the care, custody, and control of the KDOC and/or the EDCF”;[21] and that at all relevant times, he was an inmate in the care, custody, and control of the KDOC.[22] Plaintiff does not reference any specific contract provision in his Complaint. Corizon argues that the Agreement's specific provisions show a lack of intent to create this third-party benefit.[23]

         The allegations in Plaintiff's Complaint and Corizon's limited representations leave the Court little to work with in the confines of a Rule 12(b)(6) motion. In the context of a Rule 12(b)(6) motion to dismiss, this Court may only consider the complaint itself, attached exhibits, and documents incorporated into the complaint by reference that are central to Plaintiff's claim.[24]Here, while the Agreement is central to Plaintiff's third-party beneficiary claim and Corizon's grounds for dismissal, neither party has furnished this Court with a copy of the Agreement. Nor does the Agreement appear to be publicly available, and the authenticity of a copy found online via a weblink provided in Corizon's reply cannot be determined.[25]

         Nevertheless, the Court is not persuaded that, by not including the specific terms of the Agreement, Plaintiff necessarily failed the pleading standard. Because “[p]leading is governed by Rule 8 of the Federal Rules of Civil Procedure, . . . [f]ederal law does not require [p]laintiff to recite the contract terms verbatim or attach a copy of the contract to the complaint.”[26] Plaintiff alleges facts capable of satisfying his claim that he is a third-party beneficiary. Because the Agreement's specific terms cannot be reviewed, this Court must accept Plaintiff's plausible factual allegations and declines to conduct the necessary contract analysis without the benefit of the actual Agreement.

         2. Breach

         The Court next considers whether Plaintiff has adequately alleged a breach of the Agreement. Plaintiff alleges Corizon, a corporation engaged in providing medical care and treatment to inmates, contracted with the KDOC to provide medical care to inmates at EDCF.[27] Plaintiff further alleges that the Agreement requires Corizon to provide comprehensive health care services to inmates in the care, custody, and control of the KDOC.[28] Plaintiff also states “[a]s more fully set forth above, Corizon, by and through its agents, failed to provide Flores with health care services that met the standard of care of a physician and/or nurse in the State of Kansas.”[29]

         Corizon argues it cannot breach the Agreement in the manner alleged because it is not a health care provider and therefore cannot contract to provide health care services that meet the standard of care of a physician.[30] Corizon contends that it does not fit within any of the statutory definitions of a “health care provider, ” as defined in the Kansas Health Care Provider Insurance Availability Act, K.S.A. § 40-3401(f). That law defines a health care provider in relevant part as:

. . . a person licensed to practice [or who holds a temporary permit to practice] any branch of the healing arts by the state board of healing arts; . . . a medical care facility licensed by the state of Kansas; . . . a Kansas limited liability company organized for the purpose of rendering professional services by its members who are health care providers . . . and who are legally authorized to render the professional services for which the limited liability company is organized; a partnership of persons who are health care providers under this subsection; [or] a Kansas not-for-profit ...

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