Opinion
Civil Action No. 18-72 Erie
10-05-2018
JOSEPH LEE OLLIE, Plaintiff, v. JOHN LUBAHN, M.D., and PATRICK SMITH, M.D., Defendants.
District Judge Susan Paradise Baxter
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that Defendants' Motions to Dismiss (ECF Nos. 22, 24) be granted and that Defendant's Motion to Strike (ECF No. 37) be denied as moot.
II. REPORT
A. Factual Background
Plaintiff Joseph Lee Ollie ("Plaintiff"), acting pro se, initiated this civil rights action pursuant to 42 U.S.C. § 1983 on March 5, 2018. ECF No. 1. His motion to proceed in forma pauperis was granted on April 24, 2017 (ECF No. 4) and his Complaint was docketed the following day. ECF No. 5.
In his Complaint, Plaintiff describes a series of interactions with two private physicians, John Lubahn, M.D. ("Dr. Lubahn"), and Patrick Smith, M.D. ("Dr. Smith"), each of whom is named as a defendant in this action. ECF No. 5 ¶¶ 4, 45. Plaintiff's relationship with Dr. Lubahn began when his family physician referred him for carpal tunnel syndrome surgery in January 2010. Id. ¶ 4. Upon meeting Plaintiff, Dr. Lubahn informed him that he possessed medical records and test results proving that Plaintiff had raped a child. Id. ¶ 7. Plaintiff denied the accusation, stating that another family member had committed that crime. Id. ¶ 8. Dr. Lubahn proceeded to perform a surgery on Plaintiff's right hand that ultimately resulted in an infection and necessitated a blood transfusion (although Plaintiff declined to have the transfusion). Id. ¶¶ 16-24. Years later, Plaintiff discovered that Dr. Lubahn had also removed "bone gristle" from his penis during the same surgery, causing him to experience pain urinating, blood in his urine, incontinence, impotence, high blood pressure, and to become diabetic. Id. ¶¶ 36-41.
Plaintiff first met with Dr. Smith on October 11, 2010, to schedule an appointment for cervical surgery. Id. ¶ 46. Dr. Smith informed Plaintiff that Dr. Lubahn had supplied him with records and tests proving that Plaintiff had raped a child. Id. ¶ 49. Plaintiff again denied the allegation. Id. ¶ 50. Dr. Smith performed a negligent and improper surgical fusion on November 11, 2010, causing Plaintiff to experience neck pain, numbness, tingling, and other serious injuries. Id. ¶ 52. He also removed samples from Plaintiff's kidneys to give to Dr. Lubahn. Id. ¶ 56.
Plaintiff alleges that Dr. Lubahn and Dr. Smith "maliciously and sadistically" performed those surgical procedures (some of which involved the "wrong body part") in a negligent manner because of their belief that he raped a child. Id. ¶¶ 66-69. He contends that their actions amounted to assault and battery, medical malpractice, and violated the Eighth Amendment's prohibition against cruel and unusual punishment and his Fourteenth Amendment due process rights. Id. ¶ 66-68. He also appears to claim that Dr. Lubhan and Dr. Smith entered into a civil conspiracy with the government to deprive him of his Eighth Amendment rights. Id. ¶ 69.
Defendants filed the instant Motions to Dismiss on August 8 and August 9, 2018. ECF Nos. 22, 24. In their Motions, Defendants maintain that Plaintiff's claims are deficient because he has failed to allege the existence of a state actor, each of his claims is barred by the applicable statute of limitations, and he has failed to attach a certificate of merit as required for a claim of medical malpractice. ECF No. 23 at 3-8; ECF No. 25 at 8.
In lieu of a response in opposition, Plaintiff filed a proposed Amended Complaint on September 19, 2018. ECF No. 35. The only new facts alleged in the Amended Complaint consist of Plaintiff's conclusory averments that he did not discover several of the injuries caused by the illicit surgeries until recently and, as a result, the statute of limitations on his medical negligence claims should be tolled by the discovery rule. ECF No. 35 ¶¶ 18-20. Plaintiff also added "Saint Vincent Medical Hospital" and "UPMC Medical Hospital" as defendants, albeit without attributing any conduct to either entity. Neither of Plaintiffs' pleadings contain any facts implicating the government or ascribing any action to a state actor.
Dr. Lubahn has filed a motion seeking to strike the proposed Amended Complaint as untimely. ECF No. 37. Given the undersigned's recommendation that this action be dismissed with prejudice, Dr. Lubahn's motion to strike should be denied as moot. Plaintiff's Amended Complaint will be construed as a request for leave to amend pursuant to Federal Rule of Civil Procedure 15(a)(2).
B. Standards of Review
1. Pro se Litigants
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v. Dep't of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Because Plaintiff is proceeding as a pro se litigant, this Court may consider facts and make inferences where it is appropriate.
2. Motion to dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").
Expounded on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
C. Analysis
1. 42 U.S.C. § 1983 - State Actor Requirement
Defendants contend that Plaintiff's § 1983 claims fail as a matter of law because Dr. Lubahn and Dr. Smith are not state actors. The Court agrees.
In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that he was "deprived of a federal constitutional or statutory right by a state actor." Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Generally, anyone whose conduct is "fairly attributed to the state" can be sued as a state actor under § 1983. Filarsky v. Delia, 566 U.S. 377, 383 (2012) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). For liability to attach, the state actor must have "exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Harvey v. Plains Twp. Police Dept., 635 F.3d 606, 609 (3d Cir. 2011) (quoting Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998)).
It is evident from the Complaint that Dr. Lubahn and Dr. Smith are private physicians rather than state actors. Moreover, each of Plaintiff's interactions with Dr. Lubahn and Dr. Smith clearly occurred prior to his incarceration. As such, Plaintiff's § 1983 claims based on violations of the Eighth and Fourteenth Amendments must be dismissed for failure to state a claim. See, e.g., Massey v. Crady, 2018 WL 4328002, at *6 (W.D. Pa. Aug. 8, 2018) ("Private citizens, such as [defendants] are not state actors, and therefore . . . any § 1983 claims against [them] should be dismissed."); Little v. Hammond, 2016 WL 7324593, at *4 (W.D. Pa. Dec. 16, 2016) (same).
Plaintiff's Eighth Amendment claim is independently subject to dismissal because he was not incarcerated during the period of time at issue. See, e.g., Whitley v. Albers, 475 U.S. 312, 318 (1986) (noting that "[t]he Cruel and Unusual Punishments Clause 'was designed to protect those convicted of crimes," and consequently the Clause applies 'only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.'") (quoting Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977)) (internal citation omitted). --------
Similarly, Plaintiff has failed to plead any facts from which the existence of a conspiracy between the private Defendants and the government might be inferred. Generally, in order "to properly plead an unconstitutional conspiracy, a plaintiff must assert facts [alleging] a conspiratorial agreement" between the non-state actors and the government. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). Bare allegations that "Defendants engaged in a concerted action of a kind not likely to occur in the absence of agreement" are insufficient. Id. In the instant case, Plaintiff's allegations of a conspiracy are both conclusory and, as discussed above, fail to implicate a state actor. Such claims must fail.
In sum, Plaintiff has failed to allege that any of the Defendants are state actors or that they acted in concert with a state actor in order to violate his constitutional rights. As such, it is recommended that Plaintiff's § 1983 claims be dismissed, with prejudice.
2. Plaintiff's State Law Claims
Plaintiff's Complaint also attempts to assert state law claims for assault and battery, lack of informed consent, and medical malpractice. "Where all claims over which the Court has original jurisdiction have been dismissed, however, the district court may decline to exercise supplemental jurisdiction over the remaining claims." Carbone v. City of New Castle, 2017 WL 5569833, at *16 (W.D. Pa. Nov. 20, 2017) (citing 28 U.S.C. § 1367(c)(3)). Indeed, the Third Circuit has instructed that, "absent extraordinary circumstances, pendent jurisdiction should be declined where the federal claims are no longer viable." Shaffer v. Bd. of Sch. Dir. Albert Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984) (internal quotations omitted). Because there are no extraordinary circumstances surrounding this case which would warrant the exercise of supplemental jurisdiction, it is recommended that Plaintiff's pendent state law claims be dismissed, without prejudice.
D. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In this case, Plaintiff has already submitted an Amended Complaint in response to Defendants' Motions to Dismiss. Because his proposed amendment was not submitted within 21 days of the filing of Defendants' Rule 12(b)(6) motions, Plaintiff is not entitled to an automatic amendment as of right pursuant to Federal Rule of Civil Procedure 15(a)(1)(B); rather, he must seek leave for his proposed amendment. See Fed. R. Civ. P. 15(a)(2). Leave to amend should be freely given "unless an amendment would be inequitable or futile." Massey, 2018 WL 4328002, at *11 (citing Fed. R. Civ. P. 15).
As discussed above, Plaintiff's Amended Complaint failed to cure any of the defects in Plaintiff's original pleading, particularly as they pertain to the lack of a state actor. Indeed, Plaintiff has attempted to add two additional non-state actors as defendants: Saint Vincent Medical Center and UPMC Medical Center. When a complaint, as amended, would still fail to state a claim upon which relief could be granted, the proposed amendment should be denied as futile. In re NAHC, Inc. Securities Litig., 306 F.3d 1314, 1332 (3d Cir. 2002). Moreover, in light of the fact that Plaintiff's allegations relate entirely to events that took place while he was not incarcerated and involve only private actors, any further attempt at amendment would be similarly futile.
For the foregoing reasons, it is recommended that Plaintiff's request to amend his Complaint by substituting the Amended Complaint be denied as futile and that no further opportunity to amend be provided.
III. CONCLUSION
For the reasons stated herein, it is respectfully recommended that Defendants' Motions to Dismiss (ECF Nos. 22, 24) be granted. It is further recommended that Plaintiff's claims pursuant to 42 U.S.C. § 1983 be dismissed, with prejudice, and that the Court decline to exercise supplemental jurisdiction over Plaintiff's pendent state law claims. Finally, it is recommended that Defendant Dr. Lubahn's Motion to Strike (ECF No. 37) be denied as moot.
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
United States Magistrate Judge Dated: October 5, 2018