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Soto-Montes v. Corizon Health, Inc.

United States District Court, D. Kansas

December 18, 2019

EMMANUEL SOTO-MONTES, Plaintiff,
v.
CORIZON HEALTH, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER, UNITED STATES MAGISTRATE JUDGE

         On December 18, 2019, the Court convened a status conference and motion hearing to address the progress of the medical malpractice screening panel and Plaintiff's recent Motion to Appoint Counsel (ECF No. 87). Plaintiff Emmanuel Soto-Montes appeared through counsel, Daniel K. Back. Defendants Corizon, Inc., Travis Nickelson, NP, and Deanna Morris, LPN (“Corizon Defendants”) appeared through counsel, Richard M. Acosta. Defendant Baseer A. Sayeed, M.D., appeared through counsel, Anthony M. Singer. Defendant Gordon Harrod, M.D., appeared through counsel, Sean D. Walsh. Attorney John H. Gibson appeared as the Chair of the medical malpractice screening panels.

         After careful review of Plaintiff's Motion and the Corizon Defendants' Response in Opposition to Plaintiff's Motion to Appoint Additional Counsel (ECF No. 88), Plaintiff's Motion to Appoint Counsel (ECF No. 87) was DENIED without prejudice by oral ruling at the conclusion of the hearing. This written opinion memorializes that ruling.

         I. Background[1]

         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., [2] the contracted medical provider for EDCF; Travis Nickelson, NP;[3] 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. He contends this pain stemmed from his “low back/kidney area.” (Am. Compl., ECF No. 8 at 5, ¶20.)

         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.)

         The case was briefly stayed to address the issue of jurisdiction, and counsel was appointed to Plaintiff for the limited purposes of briefing jurisdiction and moving forward with a medical malpractice screening panel. (Mem. and Order, ECF No. 53.) The issue of jurisdiction was later resolved (see Order, ECF No. 58), and this matter proceeded to two medical malpractice screening panels-one to review the defendant physicians' conduct, and one to review the defendant nurses' conduct. (Order, ECF No. 72.) The Court ordered that 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.” (ECF No. 53 at 3.)

         On November 14, 2019, Plaintiff filed the instant motion pro se, seeking counsel as described below. (ECF No. 87.) In an effort to address the pending motion and ascertain the status of the screening panel's work, the undersigned scheduled the motion for a telephone conference. (ECF No. 89.) Plaintiff was notified of the conference individually, in addition to his appointed counsel, and informed he was invited to take part in the phone conference.

         On December 17, 2019, the Court convened the conference. Plaintiff's counsel, Danny Back, reported Plaintiff was advised of the conference and the Court's invitation for him to participate. The Chair of the screening panels, John Gibson, advised the Court that all documents have been produced to the panels, and they are currently reviewing the documentation for panel meetings to occur in early January 2020.[4]

         II. Plaintiff's Motion for Appointment of Counsel (ECF No. 87)

         Plaintiff now asks the Court to appoint him new or additional counsel to assist him in pursuing and filing a motion for restraining order against defendant Corizon, claiming they have continued to fail at providing him adequate medical care. (ECF No. 87 at 1.) He contends a scan of his abdomen in June 2015 showed a cyst on his liver, which Corizon has not explored since that time. He believes Corizon does not have his best interests in mind and cannot provide the attention and medical care he needs. Defendants Corizon, Nickelson, and Morris (“Corizon Defendants”) opposed the appointment of counsel. (Resp., ECF No. 88.) The remaining defendants did not weigh in on the dispute.

         The Corizon Defendants argued Plaintiff has not demonstrated that the merits of his potential new claim justify appointment of additional counsel. Additionally, the Corizon Defendants contend Plaintiff's lack of legal training and the nature of the factual and legal issues do not support appointment of counsel. To the extent Plaintiff seeks to add a new claim, thereby amending his Complaint under Fed.R.Civ.P. 15, Defendants contend any such motion would be futile and should not be permitted.

         A. ...


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