Lawton v. Medevac Mid-America, Inc.

138 F.R.D. 586, 1991 U.S. Dist. LEXIS 12425, 1991 WL 173242
CourtDistrict Court, D. Kansas
DecidedAugust 21, 1991
DocketNo. Civ. A. No. 91-2206-V
StatusPublished
Cited by7 cases

This text of 138 F.R.D. 586 (Lawton v. Medevac Mid-America, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lawton v. Medevac Mid-America, Inc., 138 F.R.D. 586, 1991 U.S. Dist. LEXIS 12425, 1991 WL 173242 (D. Kan. 1991).

Opinion

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This case is now before the court on the defendants’ separate motions to dismiss as follows:

Topeka Fire Department’s Motion to Dismiss (Doc. 7)
[588]*588Steven Michael Gill’s Motion to Dismiss (Doc. 14)
Medevac Mid-America, Inc.’s Motion to Dismiss (Doc. 16)
Motion to Dismiss by Roman Hiszcyn-skyj, M.D., and James McGovern, M.D. (Doc. 19)

Pro se plaintiff Carol K. Lawton has responded in some fashion to each of these motions. Having reviewed the file in this case, the court finds that oral argument on these motions is unnecessary. D.Kan. Rule 206(d). For the reasons stated below, the defendants’ motions to dismiss are granted. The court also concludes that the filing of the Complaint in this court is frivolous and that sanctions should be imposed on plaintiff Carol K. Lawton pursuant to Fed.R.Civ.P. 11.

On March 6, 1989, plaintiffs Carol K. Lawton and Marvin Lawton, on their own behalf and on behalf of the heirs at law of Maude E. Lawton, filed a wrongful death suit against defendant Medevac in the District Court of Shawnee County, Kansas. Plaintiffs alleged that, on June 19, 1988, Medevac, through its employee, defendant Steven M. Gill, negligently provided emergency health care services to Maude E. Lawton and caused her to die before she could reach the hospital. The District Court of Shawnee County, Kansas, entered summary judgment in favor of defendant Medevac on June 27, 1990.

Plaintiffs’ current action is based on the same alleged negligence of defendants Me-devac and Gill in inserting an endotracheal tube and performing cardial pulmonary resuscitation on Maude E. Lawton. The complaint further alleges that the Topeka Fire Department, who was the first to respond to the emergency call for help, “wrongly transported” Maude E. Lawton. Finally, plaintiffs’ claims against defendants Dr. Hiszczynskyj, District Coroner for the Third Judicial District of Kansas, and Dr. McGovern are based on a controversy over which of two conflicting certificates of death for Maude E. Lawton should be considered the official certificate of death by the State of Kansas, as well as an allegation that the doctors were “aware that the autopsy was being taken so to cover up the situation.” Plaintiffs assert that the above stated claims give rise to a cause of action under 42 U.S.C. § 1983.

The defendants, in their separate motions to dismiss, argue that plaintiffs have failed to state a claim upon which relief can be granted and/or that plaintiffs’ claims are barred by the applicable statute of limitations. Fed.R.Civ.P. 12(b)(6). Because these issues are dispositive of the case, the court does not need to consider the other defenses raised in the motions which apply only to certain defendants.

As an initial matter, the court notes that plaintiffs Constance Clark and Marvin Lawton have not signed the complaint or any of the pleadings filed in this case, nor has a licensed attorney signed any pleadings on their behalf as required by Fed. R. Civ.P. 11. Therefore, the claims of Constance Clark and Marvin Lawton are dismissed.

As for the section 1983 claims asserted by plaintiff Carol K. Lawton, we may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1148 (10th Cir.1989). “All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The court must view all reasonable inferences in favor of the plaintiff and the pleadings must be liberally construed. Id. The issue in reviewing the sufficiency of a complaint is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

In order to state a cause of action under section 1983, the plaintiff must first allege that some person has deprived her of a federal right. Second, she must allege [589]*589that the person who deprived her of that right acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). Here, plaintiff has failed to allege a violation of “any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Plaintiff asserts that she has a right to be free from conspiracies under 42 U.S.C. § 1986. However, as plaintiff Carol K. Lawton, herself, correctly notes, there can be no claim under section 1986 unless there is a valid section 1985 claim. Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir.1977). Furthermore, a section 1985 claim requires, in part, that the conspiracy be for the purpose of depriving the plaintiff of “the equal protection of the laws, or of equal privileges and immunities under the law.” 42 U.S.C. § 1985(3); Griffin v. Breckenridge, 403 U.S. 88, 103-04, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971). Again, plaintiff has failed to show that she was deprived of any constitutional rights or privileges. Moreover, plaintiffs complaint contains mere conclusory allegations of some type of a “cover up” which are insufficient to state a cause of action under section 1985. See, e.g., Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492 (1972) (pleading conspiracy under section 1985(3) requires at least minimum factual support of the existence of a conspiracy). Thus, plaintiff has failed to state a cause of action under either section 1983 or section 1986. Plaintiff’s claim is essentially a state wrongful death claim which she is attempting to relitigate in federal court.1

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bibbs v. JPAY, L.L.C.
S.D. Ohio, 2023
Alepps v. Lindner
S.D. Ohio, 2019
Augustine v. Adams
88 F. Supp. 2d 1166 (D. Kansas, 2000)
Schrag v. Dinges
150 F.R.D. 664 (D. Kansas, 1993)
Money v. Great Bend Packing Co., Inc.
783 F. Supp. 563 (D. Kansas, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
138 F.R.D. 586, 1991 U.S. Dist. LEXIS 12425, 1991 WL 173242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawton-v-medevac-mid-america-inc-ksd-1991.