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McCormack v. Everest National Insurance Co.

United States District Court, D. Idaho

January 6, 2015



CANDY W. DALE, Magistrate Judge.

Pro se Plaintiff Robert McCormack filed this lawsuit against 35 defendants, alleging a variety of state and federal causes of action. The Court previously dismissed with prejudice McCormack's state law claims against three defendants. The issue before the Court-presented in the form of three motions to dismiss (Dkt. 30, 33, 36) and McCormack's failure to show good cause for not serving 13 of the named defendants-is whether any of McCormack's claims against the remaining Defendants are subject to dismissal.

District Judge Edward J. Lodge has referred all matters in this case to the undersigned. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented therein and that the decisional process would not be significantly aided by oral argument. Dist. Idaho Loc. Civ. R. 7.1. Accordingly, the Court issues this report, recommending that McCormack's Complaint be dismissed with limited leave to amend.


On July 22, 2013, McCormack filed a 50-page Complaint alleging causes of action against four groups of defendants.[1] Due to a lack of subject matter jurisdiction, the Court has dismissed with prejudice McCormack's claims against one of these groups- Christopher Caldwell; Ronda Nichols; and Whitehead, Amberson & Caldwell, PLLC (the "Caldwell Defendants"). (Dkt. 49, adopting 48.) The remaining groups of Defendants consist of:

(1) Everest National Insurance Company ("Everest");
(2)[2] April Dawson, Dave Foss, Debra Frost, Larry Hynes, Jan Epp, Anita Travis, Scott Lossman, Shirley Audens, Debbie Richardson, Tina Williams, Joseph Cardona, Thomas Kimberly, William Poulson, Erin Aldape, and Catherine Whinnery (the "Corizon Defendants"); and
(3)[3] Rona Siegert, Theresa Baldridge, Christina Boulay, Pam Sonen, Randy Blades, Gary Barrier, Jill Whittington, Johanna Smith, Jeff Kirkman, Garrett Coburn, Alan Stewart, David Wright, Howard Yordy, Stan House, Sabino Ramirez, and Terry Rosenthal (the "IDOC Defendants").

McCormack alleges that Everest committed malpractice and was negligent in evaluating and paying workers' compensation benefits related to a back injury McCormack sustained while working for Everest's insured, All Valley Concrete. On May 13, 2014, Everest filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6). (Dkt. 30.) Everest contends the Court lacks subject matter jurisdiction over McCormack's claims. In the alternative, Everest argues the claims are time-barred and are legally insufficient because Everest owed no legal duty to McCormack.

McCormack brings suit against various employees of the Idaho Department of Correction ("IDOC") under 42 U.S.C. § 1983, alleging violations of his rights to (1) access the courts under the First and Fourteenth Amendments and (2) be free from cruel and unusual punishment under the Eighth Amendment. On May 16, 2014, counsel for the IDOC appeared and filed a motion to dismiss on behalf of 15 IDOC employees-Shirley Audens, Joseph Cardona, Rona Siegart, Theresa Baldridge, Christina Boulay, Randy Blades, Jill Whittington, Jeff Kirkman, Garrett Coburn, Alan Stewart, David Wright, Howard Yordy, Stan House, Sabina Ramirez, and Terry Rosenthal. (Dkt. 33.) These Defendants argue that McCormack's constitutional claims should be dismissed under Rule 12(b)(6) because are legally and factually insufficient. They also argue that McCormack's Eighth Amendment claim is time-barred.

McCormack also brings a § 1983 claim against the Corizon Defendants, alleging they also violated his Eighth Amendment right to be free from cruel and unusual punishment. On June 6, 2014, counsel for Corizon appeared on behalf of three Corizon employees-April Dawson, Catherine Whinnery, and William Poulson-and filed a motion to dismiss under Rule 12(b)(6). (Dkt. 36.) These Defendants' arguments for dismissal are substantially similar to those of the IDOC employees.

On June 17, 2014, McCormack filed a one-page "Response to All Motion Motions to Dismiss." (Dkt. 39.) McCormack "sternly objects" to dismissal of any claims and requests the Court "forward these proceedings to trial." ( Id. ) However, McCormack's response does not specifically address the arguments raised in the motions to dismiss. In late June and early July of 2014, Everest, the IDOC employees, and the Corizon employees filed reply briefs. All three motions to dismiss are ripe for disposition.

After briefing concluded and without leave of the Court, McCormack, on August 4, 2014, filed a variety of documents that appear to be related to a workers' compensation claim for his back injury. (Dkt. 45.) In response, on August 21, 2014, Everest filed a "Motion to Strike" the documents as untimely. (Dkt. 47.) McCormack has not responded, the time for a response is long past, and, consequently, this motion is also ripe for disposition.

Also before the Court is the question of whether McCormack's claims against 13 named defendants should be dismissed because McCormack has failed to serve them. The Court notified McCormack that his claims against the 13 defendants may be subject to dismissal under Federal Rule of Civil Procedure 4(m) and ordered him to show cause for the failure to serve by December 15, 2014. (Dkt. 50.) McCormack has not responded.


Pro se complaints, "however inartfully pleaded, " are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Therefore, because McCormack proceeds pro se, the Court will construe his pleadings liberally and afford him the benefit of any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc).

Everest contends McCormack's claims against it are subject to dismissal under Federal Rule of Civil Procedure 12(b)(1). Dismissal under Rule 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over a claim. Federal courts are courts of limited jurisdiction. Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). That is, the Court cannot hear this matter unless McCormack satisfies the Court that some basis for jurisdiction exists. A federal court has subject matter jurisdiction over an action that either arises under federal law, or when there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. See 28 U.S.C. §§ 1331, 1332(a) (2013).

Everest, the Corizon employees, and the IDOC employees argue McCormack's claims are subject to dismissal under Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under Rule 12(b)(6) will be granted when the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In reviewing a complaint under this Rule, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). However, a complaint, or portions thereof, will be dismissed if the "allegations in [the] complaint, however true, could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007).

A complaint attacked by a Rule 12(b)(6) motion to dismiss "does not need detailed factual allegations... but requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. The complaint must plead "enough facts to state a claim of relief that is plausible on its face." Id. at 570. "However, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982) (citation omitted).

In exercising its discretion to dismiss claims under Rule 12(b)(6), the Court takes into consideration that, in any case, and more so in pro se cases, the law requires that plaintiffs be given an opportunity to amend their pleadings to remedy deficiencies identified in the Court's ruling on a motion to dismiss, unless amendment would be futile. See Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) ("It is not unreasonable that plaintiffs may seek amendment after an adverse ruling, and in the normal course district courts should freely grant leave to amend when a viable case may be presented."); see also Lopez v. Smith, 203 F.3d 1122, 1128-30 (9th Cir. 2000) (A pro se litigant bringing a civil rights suit must have an opportunity to amend the complaint to overcome deficiencies unless it is clear that they cannot be overcome by amendment, because, while Congress's intent in requiring screening is "to curb meritless lawsuits, " meritorious lawsuits should not be "swept away in the process.").


For the purposes of the instant motions to dismiss, the Court accepts as true the allegations in the McCormack's Complaint, except where those allegations are contradicted by matters subject to judicial notice. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

1. Work-Related Back Injury

On April 9, 2001, McCormack suffered a work-related back injury while employed by All Valley Concrete, an Idaho corporation.[4] Everest, All Valley Concrete's workers' compensation insurer, accepted McCormack's claim for temporary total disability (TTD) payments. Everest stopped making TTD benefit payments to McCormack on August 8, 2001.

As a result of this denial of benefits, McCormack retained the law firm of Whitehead, Amberson & Caldwell, PLLC (the "Caldwell law firm") to represent him in a workers' compensation action before the Idaho Industrial Commission. McCormack's TTD benefits were reinstated on September of 2001. But, pursuant to a letter request from the Caldwell law firm, Everest began forwarding the benefit checks to the Caldwell law firm. Everest continued to pay the TTD benefits in this manner until February of 2002.

What happened next is not clear from the Complaint. At some point, proceedings related McCormack's workers' compensation claim began before the Idaho Industrial Commission. The Complaint states that the Industrial Commission decided McCormack's claim on July 12, 2006, finding he was eligible for TTD benefits through May 30, 2002. (Dkt. 2 ¶ 60.) McCormack claims Everest committed malpractice and negligence by refusing to continue paying TTD benefits to McCormack and by forwarding the benefit checks to the Caldwell law firm.

2. Medical Treatment During McCormack's Incarceration

McCormack began a term of incarceration in the custody of the IDOC on May 19, 2006. Soon after, McCormack sought and received medical care for his continuing back problems. McCormack claims care he received was inadequate and in violation of his Eighth Amendment right to be free from cruel and unusual punishment. This claim centers on the following allegations in the Complaint, which generally do not name the person or persons who treated McCormack.

Starting in June of 2006, unnamed Corizon Defendants prescribed medications to address McCormack's back pain. (Dkt. 2 ¶ 145.) It is largely unclear from the Complaint which medications were prescribed to McCormack, and McCormack does not identify who wrote the prescriptions. The only medication mentioned by name is Clavil, which he alleges was prescribed on June 14, 2006. ( Id. ) According to McCormack, the Clavil "was too much as it was knocking him out for days at a time." ( Id. )

By August 31, 2006, the Corizon Defendants acknowledged that McCormack suffered from herniated discs. On February 16, 2007, McCormack filed a "Notice of Claim against [the Corizon and IDOC Defendants], for failing to treat his herniated discs." ( Id. ¶ 146.) The Complaint does not state what, if any, action was taken in response to the Notice of Claim.

On December 29, 2007, McCormack sent a letter to Defendant Rona Seigert, explaining his "medical experience... concerning his untreated preexisting back injuries." ( Id. ) Seigert responded on January 17, 2008, "with apropos directives." ( Id. ) One day later, McCormack saw one or more unnamed Corizon Defendants about his back pain and was given a choice of medications. However, McCormack alleges that the Corizon Defendants refused to provide him medications that previously had worked for his back injury. A March 10, 2008 MRI "verified" McCormack's ...

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