Gliatta v. Stein

Full title: LEONARD GLIATTA, Plaintiff, v. S. STEIN, M.D., et al., Defendants

Court: United States District Court, W.D. New York

Date published: May 23, 2004

No. 03-CV-0214S (W.D.N.Y. May. 23, 2004)

Opinion

No. 03-CV-0214S.

May 23, 2004

DECISION and ORDER

WILLIAM SKRETNY, District Judge

INTRODUCTION

On April 25, 2003, this Court issued an Order dismissing Plaintiff's Complaint, pursuant to 28 U.S.C. § 1915(e)(2)B) (ii) and 1915A, on the ground that it failed to state a claim upon which relief could be granted because it alleged only a claim of negligence and medical malpractice which did not rise to the level of an actionable claim of deliberate indifference to a serious medical need under the Eighth Amendment to the United States Constitution. (Docket No. 4). Plaintiff claimed that the Defendants implanted a defective artificial hip during replacement surgery. (Docket No. 1). On November 10, 2003, the Second Circuit Court of Appeals issued a Summary Order affirming in part, and vacating and remanding in part, this Court's Order dismissing the Complaint. The Court of Appeals directed this Court to permit Plaintiff the opportunity to file an amended complaint against defendant S. Stein, M.D., only. (Docket No. 7). On February 12, 2004, this Court issued an Order granting Plaintiff permission to file an amended complaint on or before March 8, 2004. (Docket No. 9). On February 25, 2004, Plaintiff filed an Amended Complaint against Dr. Stein. (Docket No. 10).

On March 10, 2004, Plaintiff filed a Notice of Motion to Amend Claim Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. This Motion did not include a proposed second amended complaint nor did it indicate whether Plaintiff intended to seek permission to amend the Complaint (Docket No. 1), permission which he had already been granted by this Court's Order of February 12, 2004, or whether he intended to seek permission to amend the Amended Complaint (Docket No. 10). Therefore, on April 1, 2004, this Court filed an Order (Docket No. 12) directing plaintiff to advise the Court whether he intended to file an Amended Complaint, which he had already done on February 25, 2004, as directed by the Court, or whether he intended to amend the Amended Complaint and file a Second Amended Complaint. In any event, the motion to amend was denied, either as moot or premature, because, since Defendant had not yet answered any complaint, Fed.R.Civ.P. 15(a) permitted plaintiff to file an amended complaint as of right and because, if he had intended to file a Second Amended Complaint, he had not attached a proposed Second Amended Complaint to the Motion to Amend. The Order also directed that, if Plaintiff had intended to file a Second Amended Complaint, he must file one by April 26, 2004.

On April 19, 2004, Plaintiff filed a Second Amended Complaint against Dr. Stein and a new Defendant, Smith Nephew, Inc., the alleged manufacturer of the defective artificial hip. (Docket No. 13).¹ Accordingly, this Court must now screen the Second Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

1 The original complaint alleged that Sulzar Orthopedics, a Defendant that had been dismissed from the action, a dismissal which had been affirmed by the Second Circuit, was the manufacturer.

DISCUSSION

Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. The Second Amended Complaint² alleges, inter alia, that Dr. Stein "implanted a defective total hip replacement and allowed a defective hip to dislocate on [three] separate occasions before deciding hip was defective." (Second Amended Complaint, ¶ 5A). It also alleges that Smith Nephew, Inc. manufactured a defective hip, failed to recall a defective product and failed to provide informed consent in violation of New York Public Health Law, § 2805-d. ( Id., Attachment). Based on its evaluation of the complaint, the Court finds that plaintiff's claims against Smith Nephew must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) unless Plaintiff files a Third Amended Complaint setting forth a basis of federal subject matter jurisdiction based upon diversity of citizenship, see 28 U.S.C. § 1332(a)(1), (c)(1) because this Court declines to exercise supplemental jurisdiction, see 28 U.S.C. § 1367, over the claims against said defendant which sound in negligence and strict products liability. Moreover, to the extent that the Second Amended Complaint could be construed to allege a medical malpractice claim against Dr. Stein this Court also declines to exercise supplemental jurisdiction over such a purely state law claim. Plaintiff is advised that if he intends to pursue a state law claim of medical malpractice against Dr. Stein and a negligence or products liability claim against Smith Nephew, Inc. he can file a complaint in New York State Supreme Court, Wyoming County, against Dr. Stein and Smith Nephew, Inc.³

A. Subject Matter Jurisdiction over Claim Against Smith Nephew, Inc.

1.) Diversity of Citizenship

The Second Amended Complaint (Docket No. 10 and 13) does not allege any facts necessary for the Court to make a determination as to whether or not the Court has subject matter jurisdiction over the claims against Smith Nephew, Inc. Plaintiff's claims against this Defendant sound strictly in negligence, products liability, and lack of informed consent, all state law claims. In order for this Court to have subject matter jurisdiction over Smith Nephew, Inc., separate and apart from supplemental jurisdiction, see 28 U.S.C. § 1367, Plaintiff must allege facts that establish diversity of citizenship as a basis for subject matter jurisdiction. In order for this Court to have diversity of citizenship jurisdiction over Plaintiff's state law claims against Smith Nephew, Inc., Plaintiff and Defendant must be citizens of different states, and the amount in controversy must be $75,000 or more. 28 U.S.C. § 1332(a)(1). For purposes of determining if the citizenship of a corporation is diverse, a corporation is deemed to be a citizen of both the state where it is incorporated and the state where its principal place of business is located. Id., § 1332(c)(1). The Second Amended Complaint does not allege any facts with respect to Smith Nephew, Inc.'s place of incorporation or where its principal place of business is located. Accordingly, the Second Amended Complaint will be dismissed unless Plaintiff files a Third Amended Complaint by June 8, 2004, setting forth sufficient factual allegations regarding Smith Nephew, Inc.'s state of incorporation ( i.e., where it was incorporated) and where its principal place of business is located.

2.) Supplemental Jurisdiction

Section 1367 of Title 28 provides that a district court that has subject matter jurisdiction over a federal claim, i.e., the claim against Dr. Stein under 42 U.S.C. § 1983, "shall have supplemental jurisdiction over all other claims that are so related to [the claim that the court has subject matter jurisdiction over] that they form part of the same case or controversy . . ." . The Court, however, may decline supplemental jurisdiction over a claim if "(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction." In this case, the Court finds that the state law claims of strict products liability, negligence and lack of informed consent would predominate over the federal claim of whether Dr. Stein was deliberately indifferent to Plaintiff's serious medical needs after Plaintiff first suffered a dislocation of the artificial hip. In other words, the elements of proof necessary to prove the state law claims of strict products liability, lack of informed consent and negligence, including in all likelihood expert testimony regarding a manufacture or design defect in the artificial hip, goes well beyond the elements of proof necessary to prove a claim of deliberate indifference in a prison context and, therefore, the exercise of supplemental jurisdiction over the state law claims would result in a "substantial expansion of [the] action beyond that necessary and relevant to the federal claim." Green v. Zendrian, 916 F. Supp. 493 (D.Md.,1996) (internal quotation marks and citations omitted).

In determining whether state law claims substantially predominate over the federal claim over which the court has original jurisdiction, courts consider "whether the state law claims are more complex or require more judicial resources to adjudicate or are more salient in the case as a whole than the federal law claims." Diven v. Amalgamated Transit Union Int'l Local 689, 38 F.3d 598, 601 (D.C. Cir. 1994). While acknowledging that the deliberate indifference claim will require medical evidence and proof, this Court believes that the state law claims would be more complex and require more judicial resources to adjudicate based on the type and amount of proof necessary to establish said claims. Moreover, this Court strongly believes that, based on the allegations of the Complaint, Amended Complaint and Second Amended Complaint, the Plaintiff's more salient claims are the state law claims of malpractice against Dr. Stein, and the products liability claims against the purported manufacturer of the artificial hip. The deliberate indifference claim is essentially no more than a off-shoot of the state law claims in this case and is present only because Plaintiff is an inmate of a state correctional facility who had hip replacement surgery while incarcerated. See Luongo v. Nationwide Mutual Insurance Co., No. 95 Civ. 3190(MBM), 1996 WL 445365 (S.D.N.Y. Aug.7, 1996) (§ 1367(c)(2) creates a limited exception to the exercise of supplemental jurisdiction, "that should be invoked only when `permitting litigation of all claims in the district court can accurately be described as allowing a federal tail to wag what is in substance a state dog.'") (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 789 (3d Cir. 1995). Accordingly, this Court declines to exercise supplemental jurisdiction over the state law claims in this matter.⁴

4 The Court acknowledges that if Plaintiff's Third Amended Complaint alleges the requisite facts for diversity of citizenship jurisdiction with respect to Smith Nephew, Inc., it may need to reexamine whether it will exercise supplemental jurisdiction over a claim of medical malpractice against Dr. Stein, to the extent it is alleged in the Third Amended Complaint.

CONCLUSION

For the reasons set forth above, Plaintiff's claims against Defendant Smith Nephew, Inc., must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) unless Plaintiff files a Third Amended Complaint by June 8, 2004, in which he includes the necessary allegations regarding Smith Nephew, Inc.'s place of incorporation and principal place of business as directed above.

Plaintiff is advised that an amended complaint is intended tocompletely replace the prior complaint and amended complaint in the action, and thus it "renders [any prior complaint] of no legal effect." International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977), cert. denied sub nom., Vesco Co., Inc. v. International Controls Corp., 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, Plaintiff's Third Amended Complaint must include all of the allegations against Dr. Stein and Smith Nephew, Inc., so that the Third Amended Complaint may stand alone as the sole complaint in this action which the Defendants must answer.

If Plaintiff fails to file a Third Amended Complaint as directed, the claims against Smith Nephew, Inc. will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and service of the remaining claim against Dr. Stein alleging deliberate indifference in violation of 42 U.S.C. § 1883 shall be directed.

ORDER

IT IS HEREBY ORDERED, that plaintiff is granted leave to file a Third Amended Complaint against Smith Nephew, Inc. only as directed above⁵ by June 8, 2004;

FURTHER, that the Clerk of the Court is directed to indicate on the Docket Sheet that the Second Amended Complaint shall consist of the Second Amended Complaint (Docket No. 13) and the typed complaint stapled to the front of the Section 1983 Complaint Form that was used for the Amended Complaint (Docket No. 10);

FURTHER, that the Clerk of the Court is directed to send to Plaintiff with this order a copy of the Second Amended Complaint (Docket No. 10 and 13), a blank § 1983 complaint form, and the instructions for preparing an amended complaint;

FURTHER, that in the event Plaintiff fails to file a Third Amended Complaint as directed above by June 8, 2004, the claims against Smith Nephew, Inc. are dismissed with prejudice without further order of the Court and the Clerk of the Court shall terminate Defendant Smith Nephew, Inc. as a party to this action;

FURTHER, that in the event plaintiff has failed to file a Third Amended Complaint by June 8, 2004, the Clerk of the Court is directed to cause the United States Marshal to serve copies of the Summons, Second Amended Complaint (Docket Nos. 10 and 13), and this Order upon defendant Dr. Stein, without plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in plaintiff's favor;

FURTHER, that, pursuant to 42 U.S.C. § 1997e(g), the Defendant, upon service of the Summons and Second Amended Complaint, is directed to answer the Second Amended Complaint.

SO ORDERED.