Opinion
Civil Action 2:20-cv-00427
02-14-2022
ANANT KUMAR TRIPATI, Plaintiff, v. WEXFORD HEALTH SOURCES, INC., et al., Defendants.
ANANT KUMAR TRIPATI All Counsel of Record
ANANT KUMAR TRIPATI
All Counsel of Record
William S. Stickman IV, United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge
I. Recommendation
Before the Court are motions to dismiss Plaintiff's Verified Second Amended Complaint filed by each of the Defendants. Also before the Court is Plaintiff's Motion for Leave to File a Verified Third Amended Complaint. For the reasons below, it is respectfully recommended that each of the motions to dismiss be granted and that Plaintiff's motion to file a Verified Third Amended Complaint be denied.
II. Report
A. Procedural Background
Plaintiff, Anant Kumar Tripati (“Plaintiff” or “Tripati”) is a state prisoner committed to the custody of the Arizona Department of Corrections (“ADOC”) and currently confined at the Arizona State Prison Complex in Yuma, Arizona. His projected release date is December 30, 2044. See https://corrections.az.gov/public-resources/inmate-datasearch (last visited 2/11/2022). Tripati has been in an Arizona state prison since 1992 (ECF 141-15 at 4) and appears to have no ties to this forum.
“On November 30, 1993, [Tripati] was convicted and sentenced to 28 years for fraudulent schemes, 20 years for attempted fraudulent schemes and 4-and a half years for false
Tripati is a well-known vexatious litigant who has filed lawsuits in multiple jurisdictions and who has been enjoined from filing frivolous and harassing claims in forma pauperis in certain courts. For example, in 2004, the Supreme Court of the United States ordered, “As petitioner has repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and petition submitted in compliance with Rule 33.1.” Tripati v. Schriro, 541 U.S. 1039 (2004). Similarly, the United States District Court for the District of Arizona has ordered the clerk of court not to accept for filing any original complaint or petition from Tripati except with the prior approval of a judge. In re Tripati, 891 F.2d 296 n.1 (table), 1989 WL 150100 (9th Cir. 1989). Tripati acknowledges he has incurred three or more strikes for purposes of the Prison Litigation Reform Act (PLRA”), 28 U.S.C. § 1915(g).
This case was initiated on March 27, 2020, when Tripati filed a motion for leave to proceed in forma pauperis (“IFP Motion”). (ECF 1). Attached to the IFP Motion was a thirty-two page handwritten Verified Complaint, with approximately thirty-two (32) pages of exhibits. (ECF 1-3). The undersigned filed a Report and Recommendation (“R&R”) recommending that the IFP motion be denied pursuant to 28 U.S.C. § 1915(g) as the allegations of the complaint did not show that Tripati was in imminent danger of serious physical injury. (ECF 2). Tripati filed a response to the R&R stating that the R&R was “accurate” and that he would contact his family to pay the filing fee. (ECF 3). On April 24, 2020, the District Judge adopted the R&R and denied the IFP motion. (ECF 4).
Tripati then paid the full filing fee and the Complaint was filed on May 27, 2020. (ECF 6). Prior to service on any Defendant, Tripati requested leave to amend, which was granted, and Tripati filed a Verified First Amended Complaint on June 22, 2020. (ECF 14). In lieu of filing Answers, all Defendants filed Motions to Dismiss the Verified First Amended Complaint. In response to those motions, Tripati filed a Verified Second Amended Complaint (“SAC”) on March 29, 2021 (ECF 141), which remains his operative pleading.
“In general, an amended pleading supersedes the original pleading and renders the original pleading a nullity.” Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019), cert. denied, 140 S.Ct. 1611 (2020). “Thus, the most recently filed amended complaint becomes the operative pleading.” Id.
B. The Verified Second Amended Complaint
The SAC asserts six causes of action, includes 231 paragraphs of allegations than span sixty-one pages, cites to violations arising from various sources of law, including the United States Constitution, the United States Code, and Pennsylvania and Arizona state law, cites to findings from the Inter-American Commission on Human Rights, names approximately thirty-nine defendants, including third-party healthcare contractors, five law firms and their attorneys alleged to have represented the healthcare contractors in prior litigation; attorneys from the Arizona Office of Attorney General, and various Arizona Department of Corrections personnel. The Defendants reside in four states: Pennsylvania, Tennessee, Missouri, and Arizona. Attached to the SAC are eight-four exhibits, spanning 120 pages. Tripati also filed a Brief in support of his SAC comprised of twenty-five single-spaced typewritten pages. (ECF 142).
The SAC and the claims contained in it are difficult to follow. Even granting Tripati liberal considerations as a pro se litigant, it is difficult to identify specific allegations and legal theories as to many of the named defendants. It appears that Tripati's claims arose in 1998 and continue to the present. (SAC, at 6, Section B). He alleges, however, that he did not become aware of the claims until May 2018. (Id. at 7, Section C).
The first fifty-nine pages of the SAC contain conclusory allegations that a vast nationwide conspiracy exists in which the corporate health care providers and their counsel have systematically concealed “inculpatory evidence, ” including documents and information, in order to frustrate Tripati's prior prisoner cases and prevail in litigation. (SAC, ¶¶ 90, 95-111). Tripati contends that Defendants engaged in these practices in order to prevail in litigation, to conceal evidence to make a profit, to violate his attorney client privilege, to retaliate against him, to abuse procedural devices, and to deny him access to evidence. (Id., ¶131, 189-197). He also claims that the Weber Gallagher Defendants designed this “scheme” and that the other Defendants have continued it. (Id., ¶139) For example, he alleges that the named law firms and their attorneys manufactured and concealed evidence and assembled template documents that contained false or misleading information about the practices of the healthcare providers during their representation of Wexford Health, Corizon, or Centurion of Arizona to frustrate prisoner litigation. He maintains that Wexford Health, Corizon, and Centurion, along with their legal counsel, are alter egos of each other because they have similar modes of operation and policies. (Id., ¶¶5, 6).
Throughout the SAC, Tripati refers to other pro se prisoner cases (past and pending) in which he is or was not a party and appears to have no involvement in those cases. See Verified Second Amended Complaint (“SAC”), ¶¶ 25, 26, 27, 28, 29-79, inclusive. It is unclear how these cases relate to this case.
Tripati complains that he suffers from “high blood pressure, shakes, tremors, chronic pain, constipation, prostate issues, and allergies” and that the various medical providers have failed to adequately treat these issues. (Id., ¶160). He contends that the healthcare providers have “gone through the motions to treat me, ” but have not provided effective treatment. He states that in April 2012, he was provided effective treatment by Corizon through orders of Gabapentin every eight hours, prednisone, and a special diet and that the treatment was effective. However, he alleges that at some point this effective treatment stopped. (Id., ¶160(b)).
The SAC asserts these six causes of action:
Count One - “Cruel and Unusual Punishment” (¶¶159 - 160);
Count Two - “Fraudulent Concealment, Fraud, Deceit” (¶¶161-164);
Count Three -“Violation of the First, Eighth, Fourteenth Amendments, Article IV Privileges and Immunities Clause, Due Process Clause” (¶¶165-168);
Count Four -“Violation of 18 Pa. Cons. Sta. 911 (2019)” (¶¶169-184);
Count Five - “Violations of Ariz. 13-2314.04(A)” (¶¶185-188); and
Count Six - “Conspiracy” (¶¶189-197).
In 2021, Tripati voluntarily dismissed Count Four. (ECF 176).
As relief, Tripati seeks “compensation for lost property, seizure of legal material, lost right to seek per relief, compensation for lost claims/cases due to misconduct, costs, fees, other relief damages of $5,000,000 per defendant, punitive damages.” (SAC, ¶VI, Relief).
Defendants, instead of filing Answers to the SAC, filed these ten motions to dismiss:
ECF 156 - Motion to Dismiss by Centurion of Arizona;
ECF 158 - Motion to Dismiss Plaintiff's Second Amended Complaint by Corizon Inc.;
ECF 160 - Motion to Dismiss Plaintiff's Second Amended Complaint by Wexford Health Sources, Inc.;
ECF 162 - Motion to Dismiss Plaintiff's Verified Second Amended Complaint Pursuant to Rule 12(b)(2) and 12(b)(6) by Brandi C. Blair, Edward Hochuli, and Jonah E. Rappazzo (collectively referred to as the “JS&H Defendants”);
ECF 164 - Motion to Dismiss Plaintiff's Second Amended Complaint by Samuel H. Foreman, Weber Gallagher Simpson Stapleton Fires & Newby LLP, and Matthew R. Zwick (collectively referred to as the “Weber Gallagher Defendants”);
ECF 166 - Motion to Dismiss by Anthony J. Fernandez, Nichole L. Cullen (formerly Nichole L. Rowey), and Quintairos, Prieto, Wood, & Boyer P.A., Joined by Lori Metcalf (ECF 201) (collectively referred to as the “QPWB Defendants”);
ECF 168 - Motion to Dismiss Plaintiff's Second Amended Complaint by Sarah L. Barnes and Broening Oberg Woods & Wilson, PC (collectively referred to as the “Broening Oberg Defendants”);
ECF 170 - Motion to Dismiss Plaintiff's Second Amended Complaint by Joseph Scott Conlon, Charles Stedman Hover, II; Timothy Regis Grimm, II; Kristin Whitney Basha, and Renaud Drury Cook Mesaros, PA (collectively referred to as the “Renaud Drury Defendants”);
ECF 172 - Motion to Dismiss Second Amended Complaint by Nicholas D. Acedo, Timothy J. Bojanowsky, Diane Bousheszwicz, Cheryl Dossett, Courtney Glynn, Michael E. Gottfried, Karyn Klausner, Rachel Love, Kelly Joan Morrissey, Lucy M. Rand, Charles L. Ryan, David Shinn, Daniel P. Struck, Struck Wieneke & Love, PLC, and Betty Ullibarri; Joined by Paul Edward Carter, Daryln Johnson (ECF 203) and Julia Erwin (ECF 213) (collectively referred to as the “State of Arizona Defendants”); and
ECF 221 - Motion to Dismiss by Centurion LLC.
Although identified as a defendant in Tripati's previous filings, the law firm Jones, Skelton & Hochuli, P.L.C., was not identified as a party in the caption to the Verified Second Amended Complaint or in Tripati's identification of the Parties to this Complaint contained on Form Pro Se 14 (ECF No. 141). Thus, Jones, Skelton & Hochuli, P.L.C., was terminated as a party to the action.
The State of Arizona Defendants are (1) current or former state officials from the Arizona Department of Corrections Rehabilitation and Reentry, (2) current or former Arizona Assistant Attorney Generals; and (3) their private counsel. See ECF 173, n1.
Tripati filed responses in opposition to the motions (ECF 190 and 234), and Defendants in turn filed reply briefs. (ECF 226 - 232, inclusive, and ECF 237). The motions are fully briefed and have been referred to the undersigned United States Magistrate Judge for a Report and Recommendation.
C. Standards of Review
Two relevant standards of review are at issue in Defendants' motions: Federal Rule of Civil Procedure 12, subsections (b)(2) and (b)(6).
1. Federal Rule 12(b)(2)
Rule 12(b)(2) requires a court to dismiss a case when a court lacks personal jurisdiction over a defendant. Fed.R.Civ.P. 12(b)(2). A court must analyze jurisdictional contacts on a claim-by-claim basis. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 104 (3d Cir. 2004). A defendant bears the initial burden of raising personal jurisdiction as a defense. See Fed.R.Civ.P. 12(h)(1). “When a defendant challenges personal jurisdiction, the plaintiff has the burden of proof to establish ‘jurisdictional facts through sworn affidavits or other competent evidence'.” Regan v. Loewenstein, 292 Fed.Appx. 200 (3d Cir. 2008) (quoting Patterson by Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir. 1990)). If there is no evidentiary hearing, a plaintiff must make a prima facie case by furnishing facts that establish with reasonable particularity that personal jurisdiction exists. Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987) (citation omitted). If a plaintiff meets this burden, then the burden shifts back to a defendant to present a compelling case that personal jurisdiction is unreasonable. Carteret Sav. Bank, FA, 954 F.2d 142 & n.1 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
“For purposes of a Rule 12(b)(2) motion, the court applies the same standard for truthfulness and inferences as in a Rule 12(b)(6) motion, that is, accepting as true plaintiff's version of the facts and drawing all inferences in the plaintiff's favor.” Marten v. Godwin, 499 F.3d 290, 295 n.2 (3d Cir. 2007).
2. Federal Rule 12(b)(6)
A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The Supreme Court of the United States has issued two decisions that pertain to the standard of review for failure to state a claim upon which relief could be granted. In Ashcroft v. Iqbal, the Supreme Court held that a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice' but also the ‘grounds' on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and “ ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679. The United States Court of Appeals for the Third Circuit has summarized the inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] 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.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Although this Court must accept the allegations in the SAC as true, it is “not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baroka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).
With these standards in mind, the undersigned now turns to its analysis and discussion of the pending motions.
D. Discussion
The Court accepts as true the facts as they appear in the SAC and draws all possible inferences from those facts in the light most favorable to Plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Pro se pleadings, however “inartfully pleaded” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Id. Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences where it is appropriate.
The undersigned will first address Defendants' arguments seeking to dismiss the SAC under Federal Rule of Civil Procedure 12(b)(2). Then, the Court will address Defendants' arguments seeking to dismiss the SAC under Federal Rule of Civil Procedure 12(b)(6).
1. Motions to Dismiss Pursuant to Rule 12(b)(2)
Defendants Centurion of Arizona, Centurion LLC, the JS&H Defendants, the QPWB Defendants, the Broening Oberg Defendants, the Renaud Drury Defendants, and the State of Arizona Defendants each request under Federal Rule of Civil Procedure 12(b)(2) that the Court dismiss the claims against them as this Court lacks personal jurisdiction because neither general nor specific personal jurisdiction applies. (ECF 156, 162, 166, 168, 170, 172, and 221).
A federal court may exercise personal jurisdiction “to the extent permissible under the law of the state where the district court sits.” Pennzoil Prods. Co. v. Colelli & Assocs., 149 F.3d 197, 200 (3d Cir. 1998); Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007); Fed.R.Civ.P. 4(k). Pennsylvania law permits courts within Pennsylvania to exercise jurisdiction “only where the contact with this Commonwealth is sufficient under the Constitution of the United States.” 42 Pa.C.S.A. § 5308. See also 42 Pa.C.S.A.§ 5322(b) (stating that personal jurisdiction may extend “to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.”) Thus, this Court may properly exercise jurisdiction over the defendants as long as exercise of that jurisdiction does not violate due process. The Due Process Clause permits courts to exercise personal jurisdiction over a defendant under two theories - either general jurisdiction or specific jurisdiction. See Mellon Bank (East) PSFS, Nat'l Assn. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992).
a. General Personal Jurisdiction
General personal jurisdiction is the broader of the two types, and is supported when a defendant has maintained “systematic and continuous” contacts with the forum state. Marten, 499 F.3d at 296 (3d Cir. 2007) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 & n.8 (1984)). The contacts need not relate to the particular claim proceeding in court.
The record before the Court clearly reflects that this Court does not have general personal jurisdiction over any of these moving defendants as none maintains “systematic and continuous” contacts with Pennsylvania:
• Centurion of Arizona is incorporated in Arizona and its principal place of business is in Arizona. It holds a contract with the ADOC to provide healthcare services to persons incarcerated in its system. See Affidavit of Deana Johnson (ECF 222-1).
• Centurion LLC is incorporated in Delaware and its principal place of business is in Missouri. It does not have hold any contracts and does not provide medical care anywhere, including to inmates housed in Pennsylvania. (Id.)
• None of the JS&H Defendants has engaged in any business or transactions within Pennsylvania nor do any of them practice law or advertise in Pennsylvania. None of the JS&H Defendants have an office in Pennsylvania or own or lease any property in Pennsylvania. Further, none of the JS&H Defendants have caused any injury in Pennsylvania. All legal services that the JS&H Defendants provided to Wexford Health related to claims made against it by Tripati have been provided from the firm's offices in Arizona, or before the trial or appellate courts of Arizona, including the United States District Court for the District of Arizona and the United States Courts of Appeals for the Ninth Circuit. See Declarations of Jonah E. Rappazzo (ECF 162-2), Brandi C. Blair (ECF 162-3), and Edward G. Hochuli (ECF 162-4).
• Each of the individual QPWB Defendants resides and is domiciled in Arizona. The individual QPWB Defendants are not licensed to practice law in Pennsylvania. None of the individual QPWB Defendants owns property in Pennsylvania or leases office space or other property in Pennsylvania. The law firm is an S-Corporation formed under the laws of the state of Florida. The law firm does not have an office in the Commonwealth of Pennsylvania, does not own any property in Pennsylvania, does not hold any assets in Pennsylvania, does not lease any office space or other property in Pennsylvania, and does not advertise in Pennsylvania. All legal services that the QPWB Defendants provided to Corizon Health related to claims made against it by Tripati were provided from the firm's offices in Arizona, or before the trial or appellate courts of Arizona, including, but not limited to, the United States District Court for the District of Arizona and the United States Courts of Appeals for the Ninth Circuit. See Declarations of Anthony J. Fernandez, Esq. (ECF 166-1, ECF 166-3) and Nichole L. Cullen, Esq. (formerly Nichole Rowey). (ECF 166-2).
• None of the individual Broening Oberg Defendants is admitted to practice law in Pennsylvania or has been practicing law in Pennsylvania. The law firm is a domestic professional corporation, incorporated in and practicing law in Arizona and is not authorized to do business in Pennsylvania. See Declaration of Sarah L. Barnes (ECF 169-1).
• None of the individual Renaud Drury Defendants is admitted to practice law in Pennsylvania. The law firm is a domestic professional association, licensed as a domestic professional corporation by the Arizona Corporation Commission. The firm is not authorized to do business in Pennsylvania and is not soliciting to practice law in Pennsylvania. See Declaration of Joseph Scott Conlon, ECF No. 171-1.
• All the individual State of Arizona Defendants reside in Arizona.
Tripati has failed to meet his burden to establish with reasonable particularity that personal general jurisdiction exists. He argues that he is a British citizen, so there is complete discovery among the parties. (ECF 234, ¶17). This argument confuses personal jurisdiction with subject matter jurisdiction. He also argues that this Court has personal jurisdiction because all Defendants are alter egos of each other, yet he has failed to produce any evidence to support this argument. The record before this Court is clear that the moving Defendants have no contacts with Pennsylvania so as to establish the requisite “systemic and continuous” contacts to subject them to general personal jurisdiction in this forum.
b. Specific Personal Jurisdiction
Lacking general personal jurisdiction, the undersigned turns to whether this Court has specific personal jurisdiction over these Defendants. Specific personal jurisdiction exists “when the claim arises from or relates to conduct purposely directed at the forum state.” Id. To establish specific jurisdiction, the plaintiff must prove: (1) the defendant has purposefully directed his activities at the forum; (2) the plaintiff's claim arises out of or relates to at least one of those activities, and (3) that the court's exercise of jurisdiction over the defendant comports with traditional notions of fair play and substantial justice. Marten, 499 F.3d at 296.
The undersigned finds that Tripati has not established that any conduct of these moving Defendants was purposely directed to Pennsylvania. Rather, he relies on the Defendants' nonforum related activities:
• Centurion of Arizona has no contacts with Pennsylvania, conducts no business in Pennsylvania, and did not treat Plaintiff or any other inmates in Pennsylvania. Similarly, Centurion LLC has not treated Tripati in Pennsylvania and does not provide medical care to inmates in Pennsylvania. Further, Centurion LLC's alleged actions of ordering Centurion of Arizona to provide inadequate healthcare occurred in Missouri, not Pennsylvania. (SAC, ¶111). See Declaration of Deana Johnson (ECF 157-1 and 222-1).
• The JS&H Defendants provided legal services to Wexford Health Sources, Inc., in a lawsuit filed by Tripati arising from medical services provided by Wexford Health to prisons operating within the ADOC. See Tripati v. Hale, C. A. No. 15-014-DB (U.S.D.C. Arizona). The alleged tortious conduct occurred in Arizona.
• The entirety of Tripati's allegations against the QPWB Defendants is that they represented Corizon with respect to prisoner litigation in the courts of Arizona. None of the individual QPWB Defendants met with Corizon employees or representatives in Pennsylvania on matters involving Tripati. The entirety of their representation of Corizon relating to matters involving Tripati occurred in Arizona.
• The allegations against the Broening Oberg Defendants appear to arise from their representation of Centurion LLC in actions litigated in Arizona.
• The allegations against the Renaud Drury Defendants appear to arise from their representation of Corizon, Inc., in an action originally filed in Tennessee, and ultimately litigated in Arizona.
• All the claims against the State of Arizona Defendants arise from or relate to their conduct in Arizona.
Simply stated, there is no evidence in this record from which the undersigned can conclude that any of these defendants' conduct was purposely directed at Pennsylvania, as required to establish specific personal jurisdiction. For this reason, the undersigned recommends that the Rule 12(b)(2) motions to dismiss filed by Defendants Centurion of Arizona, Centurion LLC, the JS&H Defendants, the QPWB Defendants, the Broening Oberg Defendants, the Renaud Drury Defendants, and the State of Arizona Defendants be granted as this Court lacks personal jurisdiction.
Having recommended that the Court grant Defendants' motions to dismiss based on lack of personal jurisdiction, it is not necessary to address these Defendants' alternative arguments for dismissal, which include failure to exhaust administrative remedies, res judicata, statute of limitations, and failure to state a claim upon which relief can be granted.
2. Motions to Dismiss Pursuant to Rule 12(b)(6)
The SAC includes six causes of action, three alleging violations of his federal constitutional rights and three alleging violations under either Pennsylvania or Arizona state law. (ECF 141). Defendants Corizon, Wexford Health, and the Weber Gallagher Defendants seek dismissal of all of them. (ECF 158, 160, and 164).
As an initial matter, the undersigned observes that the vast majority of the claims in the SAC are general and no more than conclusory. Tripati presents myriad allegations often without specifying which of the Defendants did exactly what to harm him. Additionally, it appears that Tripati is seeking to relitigate here discovery issues from numerous other cases. The SAC contains several conclusory allegations that Defendants committed fraud in discovery practices and that he was retaliated against for complaining about practices and policies of Defendants.
a. Claims Alleging Violations of Constitutional Rights
To establish a cause of action under § 1983, a plaintiff must show “the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court. Polk County v. Dodson, 454 U.S. 312, 318 (1981). Here, even when liberally construed and read in the light most favorable to Tripati, nothing in the SAC would allow an inference that the Weber Gallagher Defendants acted under color of state law. All of the federal claims against the Weber Gallagher Defendants arise solely from their representation of Wexford Health. The SAC is void of any allegation which would show that the Weber Gallagher Defendants acted in any manner other than performing traditional functions as attorneys or that the Weber Gallagher Defendants acted in any manner as state actors. As a result, it is recommended that all of Tripati's federal claims against the Weber Gallagher Defendants be dismissed and leave to amend be denied as futile. Based on this recommendation, the undersigned will analyze Tripati's federal claims only as they pertain to Corizon and Wexford Health.
Count One - “Cruel and Unusual Punishment”
In Count One of the SAC, Tripati maintains that he has serious medical needs and that Corizon and Wexford Health have provided him with ineffective treatments for his serious medical needs. Although not specifically stated, it appears that Tripati is attempting to assert a claim under the Eighth Amendment. He states through the SAC that,
Wexford changed the treatment that was effective and Corizon refused to continue to continue with the treatment that was effective. August 28, 2014 Corizon gave me medication that managed my condition, but upon the directives of its management, that was stopped. . . .
The treatment that was effective was that ordered and given to me on April 2, 2012 and that entailed me receive gabapentin every 8 hours, prednisone, and a special diet.SAC, ¶160(b), (c).
For a private corporation contracting with the government to be liable under § 1983, a plaintiff must show that these entities acted pursuant to an official policy, practice, or custom and that it was an official policy, practice, or custom which caused the constitutional violation. Monell v. Dep't v. Dep't of Social Services of City of New York, 436 U.S. 658, 690-94 (1978); Natale v. Camden County Corr. Facility, 318 F.3d 575 (3d Cir. 2003). The SAC contains no factual allegation that any policy, practice, or custom of either Corizon or Wexford Health caused him harm. Nor does the SAC contain factual allegations that either Corizon or Wexford Health knew or acquiesced in any deprivation of his constitutional rights. Roach v. SCI Graterford Med. Dep't, 398 F.Supp.2d 379, 388 (E.D.Pa. 2005). Rather, the SAC merely makes conclusory allegations about profit, which cannot support a deliberate indifference claim. See Winslow v. Prison Health Servs., 406 Fed.Appx. 671, 674-75 (3d Cir. 2011) (finding that the allegation that plaintiff was harmed by “policies to save money” is conclusory). The SAC “does not provide any indication either of (1) what the relevant policies are, (2) what basis he has for thinking that ‘policies to save money' affected his medical treatment, or (3) what specific treatment he was denied as a result of these policies.” Id. at 674. “More fundamentally, the naked assertion that Defendants considered cost in treatment [of his medical needs] does not suffice to state a claim for deliberate indifference, as prisoners do not have a constitutional right to limitless medical care, free of the cost constraints under which law-abiding citizens receive treatment.” Id.
On ongoing theme in Tripati's various lawsuits is his belief that he needs Gabapentin every eight hours. See Tripati v. Hale, CV 15-000140 (D. Ariz.) (ECF 161, Exh. A). He once again reasserts this claim in the instant SAC. However, a preference for a certain type of treatment or a “mere disagreement over acceptable treatment” does not alone rise to the level of deliberate indifference. Estelle, 429 U.S. at 106; Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993); White v. Napoleon, 897 F.2d 103, 100 (3d Cir. 1990). Tripati does not contend that he has been denied medical care. Instead, he contends that the treatment he is receiving is “not effective” and that his preference is to be treated with Gabapentin. The SAC is devoid of any allegation that the Defendants are deliberately indifferent to his serious medical needs. Instead, the allegations reflect that Tripati is being medically treated but that he disagrees with the treatment being provided.
For these reasons, it is recommended that Tripati's claims under the Eighth Amendment against Corizon and Wexford Health be dismissed with prejudice as they fail as a matter of law.
Count Three - “Violation of the First, Eighth, Fourteenth Amendment, Article IV Privileges and Immunities, Due Process Clause”
In Count Three of the SAC, Tripati avers generally that Defendants' conduct has violated his rights under the “First, Eighth, Fourteenth Amendments, Article IV Privileges and Immunities clause, Due Process Clause as fully set forth in this complaint.” SAC, ¶165. Specifically, he states,
Paragraphs 1 through 167 sets forth the underlying cause of action, anticipated and lost and the official acts frustrating the litigation. . . . With knowledge that emails and electronic records are discoverable information in inmate litigation, Corizon, a national health care corporation, which is involved in state and federal courts nationwide, has programmed its systems to conceal these evidence.Id., ¶168. Once again, Tripati has failed to specify which of the Defendants did exactly what harm to him, which is insufficient to meet federal pleading standards. Further by generally referring to Paragraphs 1 through 167, Tripati is requiring the Court to scour through his SAC and try to determine what claims he is raising. It is not for the Court to search through the record to find support for Tripati's vague claims. More colorfully, it has often been stated that “judges are not like pigs, hunting for truffles buried in briefs.” DeShields v. Int'l Resort Prop. Ltd., 463 Fed.Appx. 117, 120 (3d Cir. 2012) (quoting United States v. Starnes, 583 F.3d 196, 216 (3d Cir. 2009) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Even still, the undersigned has independently reviewed the SAC and its exhibits and finds there are defects in Count III which cannot overcome a motion to dismiss challenge.
The first hurdle Tripati faces is that he does not allege that he is a citizen of any state, let alone that he was discriminated against because of it. See SAC, ¶1 (“I am an alien, a British citizen . . . .); Omnibus Response (ECF 190), ¶¶24-25 (“I am not a citizen of any state that Defendants are citizens of . . . Unless defendants contend that they are British citizens, jurisdiction under diversity is proper.”) The Privileges and Immunities Clause of Article IV, § 2 of the United States Constitution, provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const., Art. IV, § 2 (emphasis added). And the Privileges and Immunities Clause of the Fourteenth Amendment guarantees “the rights of citizens of one state who establish residency in another state to access ‘the same privileges and immunities enjoyed by other citizens of the same State'.” National Ass'n for the Advancement of Multijurisdictional Practice, 66 F.Supp.3d 633 (E.D. Pa. 2014) (quoting Saenz v. Roe, 526 U.S. 489, 501-02 (1999)) (emphasis added)). It therefore appears that neither provision applies to him.
Next, Tripati's First Amendment retaliation claim fails as a matter of law. Assuming Tripati was engaging in “protected activity, ” the allegations of the SAC fail to show a causal connection between any adverse action taken against him that was substantially motivated by retaliation for him engaging in protected activity. Pelzer v. Superintendent Houtzdale SCI, 547 Fed.Appx. 98, 99 (3d Cir. 2013).
Third, to the extent Tripati is attempting to bring a denial of access to courts under the First and Fourteenth Amendments, Tripati has failed to set forth a prima facie case. In Christopher v. Harbury, 536 U.S. 403 (2002), notably the case that Tripati cites, the Supreme Court set forth specific criteria that a court must consider when determining whether a plaintiff has alleged a viable claim of denial of the First Amendment right to access to the courts. The Supreme Court held that a party must identify all of the following in the complaint: (1) a non-frivolous, underlying claim; (2) the official acts frustrating the litigation; and (3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit. Id. at 415; see also Lewis v. Casey, 518 U.S. 343, 350-53 (1996). Here, Tripati has failed to plead any sort of facts related to his underlying litigation that would allow this Court to determine whether it possesses any merit To the extent that Tripati attempts to assert an access to courts claim with respect to his lost property, i.e., the 14 CDs/DVDs containing “evidence, ” he fails to describe an underlying lawsuit he allegedly lost or otherwise show that he was prevented from pursuing a nonfrivolous claim. Christopher, 536 U.S. at 415.
Fourth, to the extent that Tripati is raising Eighth Amendment claims alleging deliberate indifference to his serious medical needs, those claims are duplicative of the claims raised in Count One of the SAC. Furthermore, to the extent that Tripati is invoking the Fourteenth Amendment as a vehicle to assert a violation of the Eighth Amendment. Such a claim is duplicative and runs afoul of the “explicit source” rule. “Because the Eighth Amendment provides an explicit source of protection for deliberate indifference to serious medical needs, Plaintiff's claim is pre-empted by the Eighth Amendment and should be analyzed as a substantive due process claim under the Fourteenth Amendment.” Wareham v. Pa. Dep't of Corr., report and recommendation adopted by 2013 WL 4523616, at *12 (W.D.Pa. Aug. 12, 2013).
And finally, to the extent Tripati is attempting to raise a substantive due process claim for the loss or destruction of his property (14 CDs/DVDs), such claim fails as a matter of law. See Durham v. Dep't of Corrs., 173 Fed.Appx. 154, 156 (3d Cir. 2006). “[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause . . . if a meaningful post deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Tripati had a meaningful post-deprivation remedy through both the prison grievance system and the state tort process. Tripati's own exhibit shows that he managed to grieve the alleged incident. (ECF 1413 at 1).
For all these reasons, it is recommended that Count III be dismissed with prejudice for failure to state a claim.
Count VI - Conspiracy - 42 U.S.C. §§ 1983, 1985, and 1986
In Count VI of the SAC, Tripati casts a wide net and avers that Defendants are engaged in a “open ended” conspiracy which continues to the present, in which they,
knowingly, intentionally made intentional deliberated decisions to disobey disregard the law, in advance of litigation, as a matter of their practice and policy, engineered the scheme to deploy prefabricated defenses in prisoner litigation. They used permissible procedural devices in bad faith, rigging the game from inception. They ensured truthful untainted evidence is not disclosed if inculpatory and favorable to inmates. They assembled template stock pleadings, making false sworn/unsworn statements, providing false incorrect expert/consultant reports, creating false exonerating evidence.SAC, ¶189. The SAC merely sets forth sweeping allegations that all Defendants participated in this conspiracy. As the Court of the Appeals for the Third Circuit recently explained,
To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law reached an understanding to deprive him of his constitutional rights. This requires that the state actors took concerted action based on an agreement to deprive the plaintiff of his constitutional rights, and that there was an actual underlying constitutional violation of the plaintiff's rights.Harvard v. Cesnalis, 973 F.3d 190, 207 (3d Cir. 2020) (internal quotations and citation omitted). Although the agreement can be shown by direct or circumstantial evidence, a plaintiff cannot base his claim solely on suspicion and speculation. See, e.g., Talley v. Varner, 786 Fed.Appx. 326, 329 (3d Cir. 2019) (citing Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991)) (“mere general allegation . . . [or] averment of conspiracy or collusion without alleging the facts which constitute such conspiracy or collusion is a conclusion of law and is insufficient [to state a claim]”).
Here, Tripati has failed to allege any facts at all beyond conclusory statements of conspiracy, let alone any facts that plausibly suggest a meeting of the minds, agreement or plan between any of the defendants. There simply are no allegations in the SAC to support a plausible conspiracy claim under § 1983.
Similarly, it is recommended that Tripati's claims under § 1985 be dismissed. As he does not specify which provision of Section 1985 he claims Defendants have violated, the Court will address each in turn.
To establish aprima facie case under 42 U.S.C. § 1985(3), a plaintiff must prove that:
(1) defendants engaged in a conspiracy; (2) the conspiracy's purpose was to deprive, either directly or indirectly, a person or class of persons of equal protection of the laws or equal privileges and immunities under the laws, (3) defendants committed an act in furtherance of the conspiracy, and (4) defendants'
action resulted in injury to a person or property or deprivation of the plaintiff's rights or privileges as a United States citizen.Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (emphasis added). “The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial or perhaps discriminatory animus behind the conspirators' actions.” Kush v. Rutledge, 460 U.S. 719, 726 (1983). Assuming arguendo that Tripati can bring this claim as he is not a United States citizen, it is recommended that the claim be dismissed for failure to state a claim.
Tripati cannot bring certain claims as he is not a United States citizen to whom certain constitutional protections apply.
Tripati's incoherent and conclusory allegations fail to particularize what, if any, act by any Defendant violated his equal protection rights. The allegations do not articulate any alleged act by Defendants that caused him injury and were motivated by discriminatory animus. Claims under 42 U.S.C. § 1985(2) also require that the plaintiff show, inter alia, “an inference of a racial or otherwise class-based motive” behind the conspirators' action. Finch v. Buechel, 188 Fed.Appx. 139 (3d Cir. 2006).
The undersigned finds nothing in the SAC from which an inference can be drawn of a racial or otherwise class-based motive for Defendants' alleged actions that would support a claim under either §1985(2) or §1985(3).
Section 1986 provides a cause of action against persons who are aware of a §1985 conspiracy, but fail to intervene. To state a claim under §1986, a plaintiff must allege that: “(1) the defendant had actual knowledge of a §1985 conspiracy, (2) the defendant had the power to prevent or aid in preventing the commission of a §1985 conspiracy, (3) the defendant neglected or refused to prevent a §1985 conspiracy, and (4) a wrongful act was committed.” Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994). A plaintiff must state a valid claim for conspiracy under 42 U.S.C. §1985 conspiracy. Id. (“transgressions of a § 1986 by defendant depend on a preexisting violation of §1985.”). Because Tripati has failed to set forth a cognizable claim under 42 U.S.C. §1985, he cannot make out a claim under 42 U.S.C. §1986.
For all these reasons, it is respectfully recommended that Count VI of the SAC be dismissed with prejudice for failure to state a claim.
b. Claims Alleging Violations of State Law
Count Two - Fraud
The crux of Count Two of the SAC is that Defendants committed fraud by deploying prefabricated defenses, destroying documents, hiding evidence favorable to prisoners, creating false facts and evidence, and producing false experts in prior lawsuits. (SAC, ¶161). Tripati speaks in generalities and has not pled his claim of fraud with the particularity as required under both Pennsylvania law and Federal Rule of Civil Procedure 9.
Under Pennsylvania law, “[t]he specific elements of fraud are as follows; (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another and to relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.” Yountd v. First National Bank of Port Allegheny, 868 A.2d 539, 545 (Pa. Super. 2005). Allegations of fraud must be pled with particularity. Pa. R. C. P. 1019(b). “This means that pleadings of fraud must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge.” Castillo v. Kelly, 2016 WL 7015821, *4 (Pa. Super. 2016). See also Fed.R.Civ.P. 9 (stating that “[i]n alleging fraud or mistake, a party must state with particularity circumstances constituting fraud or mistake.”).
The allegations in the SAC do not meet this pleading standard. Tripati has only generally alleged that Defendants have committed fraud in “prisoner litigation.” There are no allegations about when Defendants committed this fraud or specifically what they have falsified or misrepresented, or concealed intentionally. Tripati alludes to destruction of records but without a description about what documents were destroyed. Tripati's bald assertions lack substance and are not supported by averments of fact. As a result, he has failed to sufficiently plead a claim for fraud and it is respectfully recommended that Count Two of the SAC be dismissed with prejudice for failure to state a claim.
Count V - Civil Racketeering under Ariz. Rev. Stat. Ann. § 13-2314.04
Count Four raised a similar claim under 18 Pa.C.S. § 911. In response to defendants' motions to dismiss, Tripati voluntarily dismissed Count Four. (ECF 176).
In Count V of the SAC, Tripati attempts to assert a claim of civil racketeering under A.R.S. § 13-2314.04, which provides:
A person who sustains reasonably foreseeable injury to his person, business or property by a pattern of racketeering activity, or by a violation of § 13-2312 involving a pattern of racketeering activity, may file an action in superior court for the recovery of up to treble damages and the costs of the suit, including reasonable attorney fees for trial and appellate representation.Ariz. Rev. Stat. Ann. §13-2314.04(A). To establish a claim of civil racketeering under Arizona law, a plaintiff must show a pattern of racketeering, which requires establishing that defendant committed at least two predicate acts of racketeering that are “related” and “continuous.” Lifeflite Med. Air Transp., Inc. v. Native Am. Air Servs., Inc., 7 P.3d 158, 161 (Ariz.Ct.App. 2000). Consequently, “[t]he plaintiff must adequately plead the elements of each predicate act, satisfying the pleading standard that would apply if the predicate act were a stand-alone claim.” Nutrition Distribution LLC v. Custom Nutraceuticals LLC, 194 F.Supp.3d 952, 957 (D. Ariz. 2016) (citing Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988)); see Franzi v. Koedyker, 758 P.2d 1303, 1308-09 (Ariz.Ct.App. 1985). The plaintiff must also show an injury that was proximately caused by the pattern of racketeering. Rosier v. First Fin. Capital Corp., 889 P.2d 11, 15 (Ariz.Ct.App. 1994).
The pattern of racketeering must be supported by two or more related predicate acts (such as two acts of forgery) - the allegations need not allege at least two offenses listed under A.R.S. §13-2301(D)(4).
Here, Tripati contends that Defendants engaged in “a pattern of racketeering activity and violates A.R.S. § 13-2310(D)(4)(b)(iv) (forgery) (xv) (asserting false claims) (xx) (scheme or artifice to defraud . . . .” Id., ¶188. He appears to be basing this claim on the execution of documents by Defendants which Tripati believes contained false statements. He does not, however, specify what writings contained the purported false statements or what statements were false.
It appears that Tripati's citation to §13-2310 is incorrect and the proper citation should be §13-2301, which defines the act of “racketeering” as invovling, inter alia, forgery (iv), asserting false claims (xv), and a scheme or artifice to defraud (xx). ARS § 13-2301 - Definitions.
These alleged predicate acts are subject to the heightened pleading standards of Federal Rule of Civil Procedure 9(b), which applies to allegations of fraud. Rule 9(b) requires a party to “state with particularity the circumstances constituting fraud.” Tripati, however, has not alleged a pattern of racketeering as the allegations are conclusory, confusing, and vague. As such, they do not satisfy the pleading standards of Rule 9(b). Yet even if Tripati has sufficiently alleged a pattern of racketeering, he has failed to specifically detail the injury or loss that he suffered that was proximately caused by any pattern of racketeering activity.
For all these reasons, it is respectfully recommended that Defendants' motion to dismiss be granted and Count V be dismissed with prejudice for failure to state a claim.
3. Lack of Venue - Transfer v. Dismissal
In their motions to dismiss, the non-resident defendants argue that because venue it not proper under 28 U.S.C. § 1391(b), the Court should dismiss the claims against them under 28 U.S.C. § 1406(a) rather than transfer the case to the District of Arizona. Tripati argues that venue is proper because:
Defendants argue that “Tripati is a vexatious litigant who is shopping his claims in this forum because other courts have consistently rejected them as meritless. Transferring them will only result in further undue delay and waste of judicial resources litigating these frivolous claims.” (ECF 173 at 6).
[e]vents have been directed from this district. . . . Other defendants provided Wexford [and the Weber Gallagher defendants] with continued assistance with the events directed from this district. Arizona Department of Corrections, Ryan, Shin, Wexford, Corizon Centurion, Centurion LLC, by voluntarily conducting business in this district entering into cooperation agreements approved in this district, have consented to jurisdiction in this district.”ECF 190 at ¶30. “When venue is challenged, the court must determine whether the case falls within one of the three categories set out in §1391(b).” Alt. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 449 56 (2013). “[I]f it does not, venue is improper, and the case must be dismissed or transferred under [28 U.S.C.] § 1406(a).” Id.
A civil action may be brought in the following district courts:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . .; or (3) if there is no district in which an action may otherwise be brought as provided
in this section, in any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.28 U.S.C. §1391(b). The Court agrees with the non-resident defendants and finds venue is not proper in this Court. First, §1391(b)(1) does not apply because all defendants do not reside in Pennsylvania, “the State in which the district is located.” Next, §1391(b)(2) does not apply as a substantial part of the events or omissions giving rise to this litigation did not occur in Pennsylvania. And finally, venue is improper under §1391(b)(3) because, as a substantial part of the events arose from or relate to conduct in Arizona, Tripati could have brought this lawsuit in Arizona.
The undersigned finds that Tripati's arguments that that Defendants' fraudulent conduct was directed by the Weber Gallagher Defendants in Pittsburgh is not plausible on its face.
Having determined that venue is improper in this Court, the undersigned must next determine whether the claims against the non-resident defendants should be dismissed or transferred to the District of Arizona. Defendants have moved to dismiss pursuant to 28 U.S.C. § 1406(a), which states that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to an district or division in which it could have been brought.” (emphasis added). As the Court of Appeals for the Third Circuit has explained, Section 1406 applies when the original venue is improper and provides for either transfer or dismissal of the case. Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995).
“Transfer decisions fall to the discretion of the District Court.” Sidari v. Caesar's Pocono Resorts, 29 Fed.Appx. 845, 847 (3d Cir. 2002). Transfer is generally appropriate when procedural obstacles, such as lack of personal jurisdiction or improper venue, “impede an expeditious and orderly adjudication . . . on the merits.” Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962). However, transfer decisions “may involve undertaking some ‘limited review of the merits' of the underlying claims.” United States v. Foy, 803 F.3d 128, 137-38 (3d Cir. 2015) (citing Phillips v. Seiter, 173 F.3d 609-11 (7th Cir. 1999) (Posner, C.J.) (holding that it is appropriate for district courts to take a “peek at the merits” when deciding whether a transfer is in the interest of justice)); see also United States v. Holland, No. 1:01-CR-195-06, 2016 WL 3387170, at *1 (M.D. Pa. June 20, 2016) (“[A]lthough a lack of jurisdiction prevents a court from considering the merits when deciding whether to dismiss the motion, the merits may inform a court's determination of whether the interest of justice warrants a transfer.”) (internal citations omitted). And “[e]ven though there is a presumption in favor of transfer . . . if an action is fanciful or frivolous, it is in the interest of justice to dismiss it rather than to keep it on life support.” Patchen v. McGuire, No. CIV.A. 11-5388, 2012 WL 4473233, at *14 (E.D.Pa. Sept. 27, 2012) (citing Britell v. United States, 318 F.3d 70, 74 (1st Cir. 2003)). Accordingly, the undersigned will take a “peek at the merits” to determine whether the interests of justice warrant a transfer.
Upon consideration of these interests, the undersigned recommends the interests of justice do no warrant a transfer to the District of Arizona. After completing a cursory review of the claims against the non-resident defendants, it is clear that the claims in the SAC against the non-resident defendants fail as a matter of law:
First, as to any claims under §1983 against JS&H Defendants, the QPWB Defendants, the Broenig Oberg Defendants, and the Renaud Drury Defendants, nothing in the SAC would allow an inference that these law firms or their attorneys acted under color of state law. Therefore, any § 1983 claims against these Defendants would fail as a matter of law.
Second, any state claims of fraud under Arizona law against JS&H Defendants, the QPWB Defendants, the Broenig Oberg Defendants, and the Renaud Drury Defendants also fail as a matter of law. As the Court of Appeals of Arizona explained, “[n]o authority exists in Arizona for bringing a claim of fraud against an opposing attorney for statements made during litigation. To the contrary, case law narrowly limits claims against opposing counsel. Our law is clear.” Linder v. Brown & Herrick, 943 P.2d 758 (Ariz.Ct.App. 1997). Similarly, to the extent that Tripati's racketeering claims are fraud-based claims against opposing counsel, such claims fail as a matter of law under Arizona law. Id.
Third, any conspiracy claims against the JS&H Defendants, the QPWB Defendants, the Broenig Oberg Defendants, and the Renaud Drury Defendants are precluded by the intracorporate conspiracy doctrine. Such doctrine has been extended to the attorney-client relationship to preclude conspiracy liability for attorneys alleged to have conspired with a client because “a client and a lawyer, acting in an agency relationship, constitute a single entity.” Bowdoin v. Oriel, No. 98-cv-5539, 2000 WL 134800, at *14 (E.D. Pa. Jan. 28, 2000). See Dains v. Maricopa Cty, No. 2:07-cv-2606, 2009 WL 10673606 (U.S.D.C. Ariz. 2009) (applying intracorporate conspiracy doctrine to § 1985 claims against county department and county attorneys).
Fourth, there are no allegations in the SAC from which an inference can be drawn of a racial or otherwise class-based motive for any alleged action by a non-resident defendant that would support a claim under §1985(2) or §1985(3). And having failed to state a claim for a conspiracy under §1985(2) or §1985(3), Tripati cannot make a claim under 42 U.S.C. § 1986 against the non-resident defendants either.
Fifth, the Eleventh Amendment preserves a state's sovereign immunity by barring suits for damages against the state and its agencies in federal court. Pennhurst State Sch. And Hosp. v. Halderman, 465 U.S. 89-99-100 (1984). And that protection extends to state officials sued in their official capacities for monetary damages. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, the official capacity claims against the individual State of Arizona Defendants should be dismissed.
Sixth, to state a claim under §§ 1983 and 1985, a plaintiff must show that the defendant was a “person” acting under color of state law. Goodson v. Maggi, 797 F.Supp.2d 587, 602 (W.D.Pa. 2011). Neither the State of Arizona nor its officials acting in their official capacities are considered “persons” for purposes of §§ 1983 and 1985. Rode v. Dellarciprete, 617 F.Supp. 721, 723 & n.2 (M.D.Pa. 1995) (“It is well settled that a state and its agencies are not ‘persons' under §§ 1983 and 1985.”).
Seventh, the SAC contains no plausible allegations that the individual State of Arizona Defendants violated Tripati's constitutional rights.
Eighth, the analysis of Tripati's civil racketeering claims against Corizon, Wexford Health, and the Weber Gallagher Defendants, supra, applies equally to the non-resident defendants.
Finally, as to Defendants Centurion of Arizona and Centurion LLC, any claims against them under §1983 fail as the SAC does not identify any official policy, practice, or custom of Centurion of Arizona or Centurion, LLC, which harmed Tripati.
For all these reasons, the interests of justice do not warrant a transfer of the claims against the non-resident Defendants to a court with proper authority to review them. That Tripati's claims lack merit bears significantly on the undersigned's recommendation. Indeed, given the pleading deficiencies in Tripati's SAC, transferring these claims would merely amount to “keep[ing] it on life support.” Patchen, 2012 WL 4473233, at *14. Thus, the undersigned recommends that dismissal in lieu of transfer is appropriate.
4. Motion to Abate Time to File Third Amended Complaint (ECF 196)
According to Tripati, the Arizona Department of Corrections in response to a public records request submitted by Tripati recently released “thousands of pages of documents” which, according to Tripati, show that “the insurance carriers have provided performance bonds and liability insurance, have breached the covenant of good faith, and fair dealing, fiduciary duty, and engaged in bad faith settlement practices.” Mot. at ¶ 14. Tripati seeks leave to file a Third Amended Complaint, if so needed, once his review of the documents is complete. Id. at ¶ 21.
In light of the undersigned's recommendation to grant the motions to dismiss, it is recommended that this motion be denied.
5. Leave to Amend
The Court of Appeals for 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. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Given that Tripati has amended his complaint twice and yet continues to fail to present cognizable claims, the Court recommends denying Tripati further leave to amend as further amendment would be both inequitable and futile. Shelly v. Patrick, 48 Fed.Appx. 34, 36 (3d Cir. 2012).
III. Conclusion
For all the above reasons, it is respectfully recommended that the motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) be granted and that the claims against the non-resident defendants be dismissed under 28 U.S.C. § 1406(a), as the interests of justice do not warrant a transfer. (ECF 156, 162, 166, 168, 170, 172, and 221).
It is also recommended that the motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted and that leave to amend be denied as further amendment would be both inequitable and futile. (ECF 158, 160, and 164).
Having recommended that the Court grant Defendants' motions to dismiss based on failure to state a claim upon which relief can be granted, it is unnecessary to address these Defendants' alternative arguments for dismissal, which include res judicata, collateral estoppel, and failure to exhaust administrative remedies.
It is further recommended that Plaintiff's Motion to Abate Time to File Third Amended Complaint be denied. (ECF 196).
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, may file written objections to this Report and Recommendation by March 4, 2020, and Defendants, because they are electronically registered parties, may file written file objections, if any, by March 1, 2022. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).