Opinion
Case No. 2:04-cv-724.
February 27, 2006
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action against Defendant Anjana Samadder, M.D., Inc., alleging that Defendant discriminated against him by failing to give him the results of a medical test performed by Dr. Anjana Samadder. This matter is before the Court on the following motions of the parties:
Although the Complaint only names the corporate entity as a defendant, the allegations in the complaint appear to also assert claims against Dr. Samadder in her individual capacity. (Complaint at p. 3). Moreover, Dr. Samadder has entered an appearance, through counsel, and has made several filings in this case, including a motion for summary judgment.
(1) Defendant's motion to compel (Doc. # 22);
(2) Plaintiff's motions to "dismiss" Defendant's motions (Doc. ## 24, 25);
(3) Plaintiff's motion to "make two seprate [sic] demands from Doctor sammader [sic] and Anjana Samadder corporation [sic]" (Doc. # 32);
(4) Defendant's motions for more definite statements (Doc. ## 33, 34, 46);
(5) Plaintiff's motion to "deny defendant [sic] motions for more difinate [sic] statements" (Doc. # 37);
(6) Plaintiff's motion for the Court to "look in the intrest [sic] of justice to have the defendant pay for their discreminatory [sic] action against plaintiff" (Doc. # 44);
(7) Plaintiff's motion to "alound [sic] plaintiff to have defendant dapositions [sic]" (Doc. # 45);
(8) Plaintiff's "[s]upport motion to dismiss all defendant [sic] deposition questions that has [sic] nothing to do wuth [sic] this civil case" (Doc. # 49);
(9) Defendant's motion for summary judgment (Doc. # 50);
(10) Dr. Samadder's motion for summary judgment (Doc. # 51);
(11) Plaintiff's motion to "dismiss all defendant [sic] motions inclouding [sic] motion of summery [sic] judgement [sic]" (Doc. # 52);
(12) Defendant's motions to strike (Doc. ## 58, 59, 74, 75);
(13) Plaintiff's motion to dismiss Defendant's motions (Doc. # 63);
(14) Plaintiff's second motion to "dismiss Defendant [sic] Motion for Summery [sic] Judgement [sic] . . ." (Doc. # 66);
(15) Dr. Samadder's motions to strike (Doc. ## 67, 72, 76);
(16) Plaintiff's motion to dismiss Dr. Samadder's motion (Doc. # 68);
(17) Plaintiff's motion to dismiss Defendant's reply (Doc. # 70);
(18) Plaintiff's motion to "stricke [sic] Defendant 10/31/2005 motion" (Doc. #81);
(19) Dr. Samadder's motion for clarification (Doc. # 85); and
(20) Defendant's motion for clarification (Doc. # 86).I. Background
Plaintiff is a native of Liberia, Africa. (Affidavit of Eric Paasewe at p. 1, ¶ 1). Plaintiff has been living in Ohio for the past seventeen years. (Id.). Anjana Samadder is a physician licenced to practice medicine in the State of Ohio. (Affidavit of Anjana Samadder, M.D. at ¶ 2 (Doc. # 50-2); Affidavit of Anjana Samadder, M.D. at ¶¶ 1-2 (Doc. # 51-2)). Dr. Samadder currently practices for Defendant, Anjana Samadder, Inc., an Ohio corporation with its principal place of business in Columbus, Ohio. (Samadder Aff. at ¶¶ 2, 14 (Doc. # 50-2); Samadder Aff. at ¶¶ 1-2 (Doc. # 51-2)).
On November 22, 2002, Plaintiff visited Dr. Samadder due to stomach pain. (Paasewe Aff. at p. 1, ¶ 2; Samadder Aff. at ¶ 4 (Doc. # 50-2)). Plaintiff was referred to Dr. Samadder by his primary care physician, Mark White, M.D. (Paasewe Aff. at p. 1, ¶ 2; Samadder Aff. at ¶ 4 (Doc. # 50-2)). During this visit, Dr. Samadder allegedly informed Plaintiff that, due to his symptoms, he should take Prevacid regularly, increase his fluid and fiber intake, and start taking Fibercon. (Samadder Aff. at ¶ 5 (Doc. # 50-2)). Dr. Samadder also allegedly gave Plaintiff samples of MiraLax and recommended that he be scheduled for an esophagogastroduodenoscopy ("EGD") to check for any peptic ulcer disease or gastritis. (Samadder Aff. at ¶ 5 (Doc. #50-2)). Dr. Samadder also recommended that Plaintiff be scheduled for a colonoscopy. (Id.).
In the Complaint, Plaintiff alleges that he first visited Dr. Samadder on November 23, 2002. (Compl. at p. 1).
Plaintiff alleges that he told Dr. Samadder that he had been laid-off from work, effective November 25, 2002, and that his insurance would expire at the end of the November 2002. (Paasewe Aff. at pp. 1-2, ¶¶ 3-4). Dr. Samadder therefore scheduled the EGD and colonoscopy for November 27, 2002. (Paasewe Aff. at p. 1, ¶ 3). Dr. Samadder also informed Plaintiff that he needed to take a prep the day before the scheduled colonoscopy. (Paasewe Aff. at p. 1, ¶ 3; Samadder Aff. at ¶ 6).
Plaintiff appeared for the EGD and colonoscopy on November 27, 2002. However, because Plaintiff had failed to take a necessary prep, the colonoscopy could not be performed. (Samadder Aff. at ¶ 6 (Doc. # 50-2); Paasewe Aff. at p. 2, ¶ 5). After performing the EGD, Dr. Samadder alleges that she orally informed Plaintiff that the EGD showed: (1) a small hiatal hernia; (2) mild gastritis, and (3) status post gastric biopsies. (Samadder Aff. at ¶ 7 (Doc. # 50-2)). Dr. Samadder contends that she ordered the biopsies to check for helicobacter, the bacteria often responsible for causing peptic ulcers. (Samadder Aff. at ¶ 7 (Doc. # 50-2)). Thus, Defendant contends that, following the EGD, the only outstanding test results were related to the biopsies. (Samadder Aff. at ¶ 8 (Doc. # 50-2)). Plaintiff, however, generally denies receiving any test results.
Plaintiff alleges that he went to Defendant's office in December 2002 to obtain the results of his tests and to make an appointment for a colonoscopy. (Paasewe Aff. at p. 3, ¶ 6). Plaintiff contends that Defendant refused to give him his test results or schedule any other procedures until Plaintiff could prove health insurance coverage or pay 50% of any procedure. (Passewe Aff. at p. 3, ¶ 6). Plaintiff believes that Defendant refused to give him the results of his earlier tests because his insurance company had refused to pay for them. (Passewe Aff. at p. 3, ¶ 6). Plaintiff also alleges that an employee of Defendant accused Plaintiff of using a false/expired insurance card to obtain medical treatment and told Plaintiff "I real [sic] don't know where you coming from, In this country what you did is what we call furd [sic]. . . ." (Paasewe Aff. at p. 11, ¶ 12;Compl. at p. 2).
Defendant contends that it attempted to contact Plaintiff by telephone on January 8 and 9, 2003, regarding the results of his biopsies. (Samadder Aff. at ¶ 10 (Doc. # 50-2)). Defendant also alleges that, on January 14, 2003, it sent a letter to Plaintiff asking Plaintiff to call the office to discuss the results of his medical tests. (Id.). Plaintiff denies receiving any of these communications. (Paasewe Aff. at pp. 5-6). Moreover, Plaintiff argues that, following his November 2002 procedure, he regularly returned to Defendant's office seeking his test results, but was denied those results. (Paasewe Aff. at p. 14, ¶¶ 23-26). Dr. Samadder contends, however, that Plaintiff did not return to her office for over one year and that, in any event, Plaintiff was never denied access to his test results. (Samadder Aff. at ¶¶ 11-12 (Doc. 50-2)).
On February 3, 2004, Plaintiff returned to Defendant's office demanding his test results. (Samadder Aff. at ¶ 11 (Doc. # 50-2)). Plaintiff contends that, because he had obtained health insurance coverage, Defendant was willing to provide the test results. (Paasewe Aff. at p. 15, ¶ 27). Plaintiff met with Dr. Samadder on February 6, 2004 and obtained his test results. (Compl. at p. 2; Paasewe Aff. at p. 4, ¶¶ 7, 9).
II. Defendant's Motion to Compel
On March 16, 2005, Defendant filed a motion to compel Plaintiff to respond to certain interrogatories and requests for production of documents. (Doc. # 22). Rule 37 of the Federal Rules of Civil Procedure provides in relevant part:
If . . . a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer . . . or order compelling inspection in accordance with the request.
Fed.R.Civ.P. 37(a)(2)(B). Defendant argues that Plaintiff has completely failed to respond to Defendant's request for production of documents, and has only partially responded to Defendant's interrogatories.
Defendant certifies, as is required by Rule 37(a)(2)(B) of the Federal Rules of Civil Procedure, that it conferred and/or attempted to confer with Plaintiff in an effort to secure the disclosures without Court action. (Affidavit of Sandra R. McIntosh at ¶¶ 2-5, attached as Exhibit E to Defendant's Motion to Compel).
Determining the proper scope of discovery falls within the broad discretion of the trial court. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998). The scope of interrogatories under Rule 33 and of document requests under Rule 34 is generally limited by Rule 26(b). In turn, Rule 26(b) provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." Fed.R.Civ.P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
Responding to Defendant's motion to compel, Plaintiff argues that his discovery responses are not overdue. Plaintiff also argues that Defendant has also failed to respond to Plaintiff's discovery requests. Defendant, on the other hand, contends that Plaintiff's discovery responses are in fact overdue and that Defendant has not failed to timely respond to Plaintiff's discovery requests.
Nevertheless, on July 28, 2005, Defendant moved for summary judgment. The discovery requested by Defendant does not appear to be necessary to a ruling on Defendant's motion for summary judgment. In any event, Defendant does not suggest that a ruling on its motion for summary judgment should be delayed pending a ruling on its motion to compel. Because this Court concludes, as will be discussed infra, that Defendant is entitled to summary judgment, Defendant's motion to compel is moot.
III. Plaintiff's Response "Motions"
On March 31, 2005, and again on April 4, 2005, Plaintiff filed motions seeking to "dismiss" Defendant's motions. (Doc. ## 24, 25). These appear to be, at least in part, responses to Defendant's motion to compel. Plaintiff specifically argues that his responses to Defendant's discovery requests are not overdue. However, this is not a proper basis for a motion. In any event, as was discussed supra, Defendant's motion to compel is moot.
Plaintiff's March 31, 2005 and April 4, 2005 motions also appear to address an earlier motion to strike that had been filed by Defendant. Plaintiff argues, inter alia, that Defendant's February 24, 2005 motion to strike was not timely filed and is otherwise without merit. However, this Court has already denied Defendant's February 24, 2005 motion to strike. (Order at pp. 3-4 (September 13, 2005)).
Finally, Plaintiff also appears to request an order requiring Defendant to respond to certain interrogatories and discovery requests. As was discussed supra, Rule 37 of the Federal Rules of Civil Procedure provides, in relevant part:
If . . . a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer . . . or order compelling inspection in accordance with the request.
Fed.R.Civ.P. 37(a)(2)(B). However, Rule 37 also provides that "[t]he motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." Fed.R.Civ.P. 37(a)(2)(B).
Plaintiff's March 31, 2005 and April 4, 2005 motions do not contain Rule 37(a)(2)(B) certifications. Defendant also argues that Plaintiff's motion, to the extent it seeks to compel certain discovery responses, is untimely. Defendant contends that Plaintiff's discovery requests were served on March 11, 2005, which would make responses due by April 11, 2005. As was noted supra, Plaintiff's motions were filed on March 31, 2005 and April 4, 2005 respectively.
Defendant also argues that, in fact, it has timely provided the requested discovery. (Notice (April 7, 2005) (Doc. # 26)). Plaintiff acknowledges, in later filings, that Defendant has responded to his discovery requests. (See Reply to Defendant support motion . . . at pp. 3-4). This Court therefore concludes that Plaintiff's March 31, 2005 and April 4, 2005 motions, to the extent they seek to compel certain discovery responses, are without merit.
IV. Plaintiff's Motion to Amend Complaint
On May 5, 2005, Plaintiff filed a motion "to make two seprate [sic] demands from Doctor sammader [sic] and Anjana Samadder corporation [sic]." (Doc. # 32). As was noted supra, at note 1, there appears to be some confusion as to whether Dr. Samadder is a defendant in this case. Plaintiff's motion appears to be a request for leave to amend the complaint so as to add Dr. Samadder as a defendant and increase Plaintiff's demand for relief.
Rule 15 governs amended pleadings and provides, in relevant part: "A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court . . . and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "The decision as to whether justice requires the amendment is committed to the district court's sound discretion." Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986). A court may refuse to allow an amendment if it finds "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment. . . ." Foman v. Davis, 371 U.S. 178, 182 (1962);Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 591 (6th Cir. 1990).
Plaintiff's request to amend the complaint in this case is futile. "If a proposed amendment would be vulnerable to a motion to dismiss or to strike, 'it would be an idle move for the Court to allow an amendment over the objection of the opposing party who could simply make a formal motion to dismiss or strike after leave to amend is granted.'" Prebble v. Hinson, 825 F. Supp. 185, 186 (S.D. Ohio 1993) (citation omitted). See also Thiokol Corp. v. Dept. of Treasury, State of Michigan, Revenue Div., 987 F.2d 376, 382-83 (6th Cir. 1993).
As this Court noted in its September 13, 2005 Memorandum Opinion and Order, the Court has decided to treat Dr. Samadder, in her individual capacity, as a party in this case. (Memorandum Opinion and Order p. 1 n. 1 (September 13, 2005) (explaining that, although the Complaint only names the corporate entity as a defendant, the allegations in the complaint appear to also assert claims against Dr. Samadder in her individual capacity and Dr. Samadder has entered an appearance, through counsel, and has filed a motion for summary judgment in this case)). Dr. Samadder has not objected to the Court's conclusion in this respect. Therefore, the only question with respect to Plaintiff's motion to amend is whether Plaintiff should be permitted to request separate amounts from both Dr. Samadder and Defendant, thereby increasing his demand from $150,000 to $500,000.
With respect to his increased demand for relief, Plaintiff merely contends that he now fully understands the value of his claims and that others would seek millions of dollars under similar circumstances. Plaintiff also explains that adding Dr. Samadder as a defendant justifies an increased demand. However, Plaintiff's allegations against Dr. Samadder are the same as his allegations against Defendant. In any event, as will be discussed infra, both Defendant and Dr. Samadder are entitled to summary judgment on Plaintiff's discrimination claims. Therefore, allowing Plaintiff to amend the complaint so as to increase his demand for relief would be an exercise in futility.
V. Defendant's Motions for More Definite Statements
In response to Plaintiff's May 5, 2005 motion to amend, Defendant moved the Court for either an order requiring Plaintiff to provide a more definite statement of his request contained in his May 5, 2005 motion or, alternatively, notice of the Court's intention with respect to ruling on Plaintiff's motion and an opportunity to respond. (Doc. ## 33, 34). However, as was discussed supra, Plaintiff's May 5, 2005 motion for leave to amend is without merit. Therefore, Defendant's motions for more definite statements are moot.
VI. Plaintiff's Motion to Deny Defendant's Request
On May 13, 2005, Plaintiff filed a motion to "deny defendant [sic] motion for more difinate [sic] statements." (Doc. # 37). This, again, appears to be a response to Defendant's motion, and not a motion itself. In any event, Defendant's motions for more definite statements are moot. Therefore, Plaintiff's "motion" to strike Defendant's motions is also moot.
VII. Plaintiff's June 29, 2005 Motion
On June 29, 2005, Plaintiff filed a motion requesting that the Court "look in the intrest [sic] of justice to have the defendant [sic] pay for their disceminatory [sic] action against plaintiff." (Doc. # 44). However, this "motion" appears to be Plaintiff's report on the results of the June 2005 mediation; Plaintiff states that "I believe by now the mediator has sent his report from the mediation. . . . I am . . . also sending my own report. . . ." (Doc. # 44, at p. 1). Plaintiff's filing does not make any specific request for relief. Therefore, Plaintiff's filing is not properly construed as a motion.
Plaintiff primarily complains that the mediator improperly treated this as a medical malpractice action.
VIII. Defendant's Motion for More Definite Statement
In response to Plaintiff's June 29, 2005 motion, Defendant moved the Court for either an order requiring Plaintiff to provide a more definite statement of his request contained in his June 29, 2005 motion or, alternatively, notice of the Court's intention with respect to ruling on Plaintiff's motion and an opportunity to respond. (Doc. # 46). However, because this Court does not construe Plaintiff's June 29, 2005 filing as a motion, Defendant's request is moot.
IX. Plaintiff's Motion to Take Defendant's Deposition
On July 5, 2005, Plaintiff filed a "Motion for the court to alound [sic] plaintiff to have defendant [sic] dapositions [sic]." (Doc. # 45). In this motion, Plaintiff makes two separate requests. First, Plaintiff appears to request leave to take Dr. Samadder's deposition even though the discovery deadline has passed. (Id.). Plaintiff also requests that the Court strike all of the questions and answers from his own deposition that "have nothing to do with the case." (Id.; See also Doc. # 49).
A. Dr. Samadder's Deposition
Plaintiff requests leave to take Dr. Samadder's deposition now that the discovery deadline has passed. Plaintiff originally indicated that he would take Dr. Samadder's deposition on the same day that Plaintiff's deposition was scheduled to be taken. After various attempts to schedule Plaintiff's deposition, it was finally set for June 30, 2005, the last day of discovery. (Affidavit of Sandra R. McIntosh, at ¶¶ 2-8). Counsel for Defendant told Plaintiff to review the Federal Rules of Civil Procedure and, if Plaintiff still wanted to take Dr. Samadder's deposition, to make arrangements to have a court reporter present. (McIntosh Aff. at ¶ 8).
Rule 28 of the Federal Rules of Civil Procedure provides that, "depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending." Fed.R.Civ.P. 28(a). Moreover, Rule 30 of the Federal Rules of Civil Procedure provides, in relevant part:
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs.
(2) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording.
Fed.R.Civ.P. 30(b)(1), (2) (emphasis added).
In this case, Plaintiff failed to comply with Rule 28(a) and Rule 30(b). Plaintiff did not send written notice of the deposition of Dr. Samadder, and he did not make arrangements to have the testimony recorded. Moreover, despite being made aware of the discovery deadline in this case, (Preliminary Pretrial Order at p. 2 (January 12, 2005)), Plaintiff made very little effort to schedule Dr. Samadder's deposition within that time-frame. Although Plaintiff is proceeding pro se in this case, he is not relieved of the responsibility of complying with the basic rules of court. See McNeil v. United States, 508 U.S. 106 (1993);Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Ritchie v. Holschuh, No. 2:01-cv-539, 2002 WL 484698, *3 (S.D. Ohio March 6, 2002).
In any event, as will be made clear infra, the Court need not rely on any deposition testimony, either existing or anticipated, in order to rule on the motions of Defendant and Dr. Samadder for summary judgment. Nor does it appear that any such testimony would alter the Court's decision with respect to the motions for summary judgment. Therefore, Plaintiff's motion for leave to depose Dr. Samadder is moot.
B. Plaintiff's Deposition
Plaintiff also contends that many of the questions asked by counsel for Defendant during Plaintiff's deposition had nothing to do with the case. Plaintiff therefore asks the Court to "dismiss," or disregard, those questions and answers.
As was noted supra, at p. 6, determining the proper scope of discovery falls within the broad discretion of the trial court.Lewis, 135 F.3d at 402. The scope of depositions under the Federal Rules of Civil Procedure is quite broad. See Hickman v. Taylor, 329 U.S. 495, 507-508 (1947). However, as was also noted supra, at p. 6, the general scope of discovery is limited by Rule 26(b), which provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
Again, as will be made clear infra, the Court has not relied on Plaintiff's deposition in ruling on the motions of Defendant or Dr. Samadder for summary judgment. In any event, this Court is confident in its ability to disregard any inadmissible evidence. Therefore, Plaintiff's motion to strike certain testimony from his deposition is moot.
X. Motions of Defendant and Dr. Samadder for Summary Judgment
A. Standard
Both Defendant and Dr. Samadder have moved for summary judgment in this case. Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1). The standard for summary judgment is found in Federal Rule of Civil Procedure 56(c):
[Summary judgment] . . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Summary judgment will be granted "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is . . . [and where] no genuine issue remains for trial, . . . [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944)). See also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
Moreover, the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). The court's duty is to determine only whether sufficient evidence has been presented to make the issue of fact a proper question for the jury; it does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003).
In a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issue as to any material fact exists and that it is entitled to a judgment as a matter of law. Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). All the evidence and facts, as well as inferences to be drawn from the underlying facts, must be considered in the light most favorable to the party opposing the motion.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Wade v. Knoxville Util. Bd., 259 F.3d 452, 460 (6th Cir. 2001). Additionally, any "unexplained gaps" in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment.Adickes v. S.H. Kress Co., 398 U.S. 144, 157-60 (1970).
"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be nogenuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). A "material" fact is one that "would have [the] effect of establishing or refuting one of [the] essential elements of a cause of action or defense asserted by the parties, and would necessarily affect [the] application of [an] appropriate principle of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). See also Anderson, 477 U.S. at 248. An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. See also Leary, 349 F.3d at 897.
If the moving party meets its burden, and adequate time for discovery has been provided, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The nonmoving party must demonstrate that "there is a genuine issue for trial," and "cannot rest on her pleadings." Hall v. Tollett, 128 F.3d 418, 422 (6th Cir. 1997).
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
The existence of a mere scintilla of evidence in support of the opposing party's position is insufficient; there must be evidence on which the jury could reasonably find for the opposing party.Anderson, 477 U.S. at 252. The nonmoving party must present "significant probative evidence" to demonstrate that "there is [more than] some metaphysical doubt as to the material facts."Moore v. Phillip Morris Companies, Inc., 8 F.3d 335, 340 (6th Cir. 1993). The court may, however, enter summary judgment if it concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the presented evidence. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc., 39 F.3d at 1347.
B. Application
Defendant and Dr. Samadder argue that the claims contained in Plaintiff's complaint should be construed as medical malpractice claims. Defendant and Dr. Samadder argue that, because the applicable statute of limitations for medical malpractice claims under Ohio law is one year, they are entitled to summary judgment. Defendant and Dr. Samadder also argue that, in any event, Plaintiff's medical malpractice claims are without merit. Plaintiff strongly denies that he intended to assert medical malpractice claims in this case. Instead, Plaintiff maintains that this is a civil rights action based on the discriminatory conduct of Defendant and Dr. Samadder.
Although Plaintiff's complaint could be read liberally to assert a claim of medical malpractice, the gravamen of that complaint is discrimination. While Plaintiff alleges that Dr. Samadder failed to give him certain test results, an act that could possibly constitute negligence, Plaintiff specifically alleges that Dr. Samadder purposefully denied the test results because of a lack of insurance coverage and/or because of Plaintiff's national origin. Moreover, Plaintiff repeatedly states that he did not intend to assert medical malpractice claims in this case. Therefore, the Court will construe Plaintiff's complaint as asserting only claims of discrimination.
Defendant and Dr. Samadder also argue that Plaintiff has failed to assert a federal claim of discrimination. Rule 8(a) of the Federal Rules of Civil Procedure provides, in relevant part, that "[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed.R.Civ.P. 8(a)(1). To satisfy this requirement, a complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Notwithstanding the "simplified notice pleading" of Rule 8, the Sixth Circuit has held that a complaint must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory. Performance Contracting, Inc. v. Seaboard Sur. Co., 163 F.3d 366, 369 (6th Cir. 1998); Fink v. Ohio Health Corp., No. 04-4400, 2005 WL 1607030, *2 (6th Cir. July 7, 2005). Moreover, although Plaintiff, proceeding pro se in this case, is entitled to have his pleadings construed liberally, he is not relieved of the responsibility of complying with the basic rules of court. See McNeil, 508 U.S. 106; Wells, 891 F.2d at 594;Ritchie, 2002 WL 484698, *3.
Plaintiff alleges, in conclusory fashion, that Defendant discriminated against him based on national origin. (Compl. at p. 3). In support of this claim, Plaintiff states that an employee of Defendant made the statement: "I real [sic] don't know where you coming from, In this country what you did is what we call furd [sic]. . . ." (Paasewe Aff. at p. 11, ¶ 12;Compl. at p. 2). Plaintiff also alleges, in conclusory fashion, that Defendant would not have treated United States citizens in a similar fashion. (Compl. at p. 3).
As was noted in the Court's July 28, 2005 Memorandum Opinion and Order, Plaintiff has not identified any constitutional or statutory provision upon which his claims are based. Thus, Plaintiff has not adequately given Defendant and Dr. Samadder fair notice of what his claims are and the grounds upon which they rest. Moreover, as was also noted in the Court's July 28, 2005 Memorandum Opinion and Order, even absent the explicit identification of an applicable constitutional or statutory provision, Plaintiff's allegations appear insufficient to establish a federal claim.
While discrimination based on national origin is certainly the subject of several constitutional and federal law prohibitions, Plaintiff's allegations are insufficient to establish any such claims. For example, 42 U.S.C. § 1983, provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . .42 U.S.C. § 1983. However, Plaintiff has failed to allege that Defendant or Dr. Samadder acted under color of state law. Because there is no evidence to suggest that either Defendant or Dr. Samadder was, at any time, a "state actor," Plaintiff cannot assert a claim under § 1983. See Waters v. City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001).
Moreover, while there are several federal statutory provisions that prohibit private entities and/or individuals from discriminating based on national origin, Plaintiff's allegations are insufficient to support such claims. For example, this is not an employment action, thus, Title VII of the Civil Rights Act of 1964 does not apply. Nor do the fact appear to bring this case within the purview of 42 U.S.C. § 1981 or § 2000d.
Title VII prohibits an employer from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . national origin." 42 U.S.C. § 2000e-2(a)(1).
Section 1981 generally prohibits discrimination based on race in the making and enforcing of contracts. 42 U.S.C. § 1981. While there is a very fine line between discrimination based on race and discrimination based on national origin, see Nieto v. United Auto Workers Local 598, 672 F. Supp. 987, 989 (E.D. Mich. 1987) (citing Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987)), Plaintiff has explicitly stated that he does not allege discrimination based on race. (Reasons Why this case should not be dismissed against doctor Sammader at p. 4). Thus, there can be no claim under § 1981.
Section 2000d provides: "No person in the United States shall, on the ground of . . . national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. In this case, however, Plaintiff has not alleged that he was excluded from participation in, denied benefits of, or subjected to discrimination under any program or activity receiving Federal financial assistance.
Following this Court's July 28, 2005 Memorandum Opinion and Order, Plaintiff had an opportunity to identify any constitutional or statutory provisions upon which he was relying for relief. Plaintiff failed to identify any such constitutional or statutory provisions. Therefore, this Court concludes that Plaintiff has failed to assert a federal claim of discrimination.
Nor has Plaintiff identified any state-law provision that would provide a remedy to Plaintiff in this case. Like federal law, state law prohibits discrimination based on national origin with respect to, inter alia, employment, housing, and public accommodation. See Ohio Revised Code Chapter 4112. However, Plaintiff's allegations do not fall into any of the categories. Moreover, as at least one Ohio court has recognized, "[t]here is no common law claim for relief sounding in . . . national origin discrimination." Ngene-Igwe v. Ohio Auto Club, No. 98AP-480, 1998 WL 655412, *4 (Ohio Ct.App. Sept. 22, 1998).
Plaintiff's only other allegation of discrimination is that Defendant and Dr. Samadder violated his rights by denying Plaintiff access to the results of certain medical tests based on the alleged belief that Plaintiff did not have medical insurance. (Compl. at p. 1; Paasewe Aff. at pp. 10-12). While such a denial may be, in the words of Plaintiff, "very very wrong," (Passewe Aff. at p. 12), Plaintiff has failed to identify any federal or state provision that would prohibit such conduct.
Plaintiff has failed to give Defendant and Dr. Samadder fair notice of his claims and the grounds upon which they rest. Therefore, this Court concludes that Defendant and Dr. Samadder are entitled to summary judgment in this case.
XI. Other Motions Related to Motion for Summary Judgment
The parties have filed a number of motions that are related to, or are in response to, the motions of Defendant and Dr. Samadder for summary judgment. For instance, Plaintiff has filed a "Motion to dismiss all defendant [sic] motions inclouding [sic] motion of summary judgement [sic]," and a "Motion-2- to dismiss Defendant Motion for Summery [sic] Judgement [sic] and summery [sic] judgement [sic] file in this court." (Doc. ## 52, 66. See also Doc. # 63). These motions are, in essence, merely responses to the motions of Defendant and Dr. Samadder for summary judgment.
Defendant and Dr. Samadder have also filed several motions to strike and/or motions for clarification. (Doc. ## 58, 59, 67, 74, 75, 76, 85, 86). In response, Plaintiff filed "motions" to dismiss the motions to strike and/or for clarification. (Doc. ## 68, 70, 81). Again, Plaintiff's "motions" are, in essence, merely responses to the motions of Defendant and Dr. Samadder. In any event, because this Court has concluded that Defendant and Dr. Samadder are entitled to summary judgment, the motions that have been filed following the motions of Defendant and Dr. Samadder for summary judgment are moot.
WHEREUPON, Defendant's motion for summary judgment (Doc. # 50) and Dr. Samadder's motion for summary judgment (Doc. # 51) are GRANTED. Plaintiff's claims are hereby DISMISSED. All other pending motions in this case (Doc. ## 22, 24, 25, 32, 33, 34, 37, 44, 45, 46, 49, 52, 58, 59, 63, 66, 67, 68, 70, 74, 75, 76, 81, 85, 86) are DENIED as moot.
IT IS SO ORDERED.