Opinion
Civil Action 2:21-cv-0765
10-04-2021
JOSEPH WELTY, Plaintiff, v. MESH COMPANY AND DR. BRENT ANGOTT, Defendants.
W. SCOTT HARDY UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY CHIEF UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that, pursuant to the authority granted courts by 28 U.S.C. §§ 1915(e)(2) and 1915A, the Amended Complaint (ECF No. 15) in this case be dismissed preservice sua sponte for failure to state a claim upon which relief can be granted and that leave to amend not be granted as any amendment would be futile.
II. REPORT
This case was commenced on June 10, 2021, when Plaintiff, Joseph Welty, a Pennsylvania state prisoner, submitted a motion for leave to proceed in forma pauperis (“IFP motion”), with an attached civil rights complaint. (ECF No. 1). The only named defendants are the Mesh Company and Dr. Brent Angott. It appears that Plaintiff is attempting to bring an Eighth Amendment claim for deliberate indifference to his serious medical needs stemming from the treatment / surgery of a hernia sometime in 2018 or 2019 at Washington County Hospital.
On June 30, 2021, the Court issued a Notice of Deficiency (ECF No. 6), explaining that in order to bring a claim against Defendants for a violation of his constitutional rights under U.S.C. § 1983, defendants must be state actors, or acting in conjunction with state actors. The Court further explained that even assuming that Dr. Angott could be considered a state actor, there were no factual allegations in the Complaint sufficient to support a prima facie Eighth Amendment deliberate indifference claim against him. Further, the Court advised that to the extent Plaintiff's claims are based on state law, i.e., negligence / medical malpractice, this Court does not have jurisdiction unless there is diversity among the parties and the sum or value of the claim(s) exceeds $75,000.00. Plaintiff was advised that he could file an amended complaint by July 31, 2021, if he believed he was able to cure the deficiencies identified by the Court. The case was administratively closed pending the filing of the amended complaint.
On July 22, 2021, Plaintiff filed a motion for extension to file an amended complaint (ECF No. 7). The motion was granted and Plaintiff was given until September 24, 2021, to file an amended complaint. (ECF No. 8). On August 23, 2021, Plaintiff filed another motion for extension, which was granted, and Plaintiff was granted an extension until October 27, 2021, to file an amended complaint. (ECF No. 10).
On September 29, 2021, Plaintiff renewed his IFP motion (ECF No. 13), which was granted on September 30, 2021 (ECF No. 14), and the Amended Complaint, signed by Plaintiff on September 23, 2021, was filed on October 1, 2021. (ECF No. 15). The Amended Complaint again names only Dr. Brent Angott and the Mesh Company and indicates that the claims are being brought under 42 U.S.C. § 1983.
According to the Amended Complaint, Dr. Angott performed hernia surgery on Plaintiff at Washington County Hospital in 2018 or 2019 and “put a mesh in me to hold my hernia up from my surgery and then the mesh fell back down it (sic) my right ball sack and hernia mesh failure.” Amended Complaint at Paragraph II (B). There are no allegations against the Mesh Company other than “Mesh Company - mesh failure.” Id. at Paragraph II (D), IV (A),(D). As relief, Plaintiff is seeking $75,000.00 from Dr. Angott and $850,000.00 from the Mesh Company. Id. at Paragraph VI.
A. Applicable Legal Principles
This Court has a statutory responsibility to review complaints filed by prisoners and by those who have been granted in forma pauperis to determine if the complaint states a valid claim for relief. The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
Moreover, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but it is required to do so by the mandatory language of “the court shall dismiss” utilized by Section 1915(e)(2) . In performing a court's mandated function of sua sponte reviewing complaints under 28 U.S.C. §§ 1915(e) and 1915A to determine if they fail to state a claim upon which relief can be granted, a federal district court applies the same standard as applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Powell v. Hoover, 956 F.Supp. 565, 568 (M.D. Pa. 1997) (applying Rule 12(b)(6) standard to claim dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii)).
In reviewing complaints as mandated by 28 U.S.C. § 1915(e) and § 1915A and, consequently, utilizing the standards for a 12(b)(6) motion to dismiss, the complaint must be read in the light most favorable to the plaintiff and all well-pleaded, material allegations of fact in the complaint must be taken as true. See Estelle v. Gamble, 429 U.S. 97 (1976). Because Plaintiff is pro se, the Court will accord him an even more liberal reading of the Amended Complaint, employing less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519 (1972).
B. Discussion
There are a number of problems with the Amended Complaint, none of which can be cured by amendment. First, Plaintiff was previously advised by the Court that in order to bring a claim against Defendants for a violation of his constitutional rights under 42 U.S.C. § 1983, Defendants must be state actors, or acting in conjunction with state actors. There are no factual allegations in the Amended Complaint reflecting that the Mesh Company is a state actor. And next, even assuming Dr. Peter Angott is considered a state actor, the Amended Complaint is void of any allegations sufficient to state a prima facie deliberate indifference claim against Dr. Agnott.
Third, assuming that the claims in the Amended Complaint are based on state law, this Court does not have original jurisdiction as there is not complete diversity among the parties.See 28 U.S.C. § 1332; Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 388 (1998) and cases cited (diversity of citizenship among the parties is complete only if no plaintiff and no defendant are citizens of same state).
For all these reasons, even construing the allegations in the Amended Complaint in Plaintiff's favor, he has not stated a claim upon which relief can be granted. Additionally, amendment is futile. Plaintiff was previously given the opportunity to amend his complaint to cure these deficiencies and while he filed an Amended Complaint, he made no effort to include any facts to demonstrate that this Court has jurisdiction over his claims.
III. Conclusion
For the reasons discussed above, it is respectfully recommended that pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, this Complaint be dismissed with prejudice for failure to state a claim. It is further recommended that leave to amend not be granted as same would be futile.
Plaintiff 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, must file objections to this Report and Recommendation by October 22, 2021. Plaintiff is 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).