Richard Glunk v. R. Noone, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, COWEN and FUENTES, Circuit Judges. Total Pages: 6.

Case: 17-1063

Document: 003112626622

Page: 1

Date Filed: 05/18/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1063
___________
RICHARD P. GLUNK, M.D., F.A.C.S.,
Appellant
v.
R. BARRETT NOONE, M.D.; SCOTT M. GOLDMAN, M.D.; MARIE VANBUSKIRK;
MAIN LINE HEALTH; JOYCE MCKEEVER; OLLICE BATES, JR., M.D.; KERRY
MALONEY; ANDREW DEMAREST; DAVID GRUBB; BASIL MERENDA; MARK
VESSELLA; PETER MARKS; STEVEN DADE; SABINA HOWELL; TAMMY
DOUGHERTY
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1:16-cv-01147)
District Judge: Honorable Yvette Kane
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 11, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: May 18, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 17-1063

Document: 003112626622

Page: 2

Date Filed: 05/18/2017

Richard P. Glunk, M.D., appeals from the order of the District Court dismissing
his amended complaint. For the reasons that follow, we will affirm.
In December 2010, the Pennsylvania State Board of Medicine suspended Dr.
Glunk’s medical license for 60 days on grounds of immoral conduct, and the
Commonwealth Court affirmed. Glunk v. State Bd. of Med., 2011 WL 10893889 (Pa.
Commw. Ct. June 15, 2011). In April 2014, Dr. Glunk filed a civil rights action in the
Middle District of Pennsylvania alleging that the Board violated his due process rights.
Glunk v. Pa. State Bd. of Med., et al., M.D. Pa. Civ. No. 1:14-cv-00659 (Glunk I). One
allegation in the second amended complaint in Glunk I was that the hearing examiner in
Dr. Glunk’s suspension proceedings was improperly influenced by an ex parte letter, and
confidential peer-review materials enclosed with that letter, that a malpractice attorney
had sent to the Board.
While Glunk I was pending in the Middle District, Dr. Glunk brought the case on
appeal here (Glunk II) in the Eastern District of Pennsylvania. Glunk II differed from
Glunk I in that it added claims against the private party Main Line Health, Inc., plus two
Main Line Health physicians. The amended complaint in Glunk II also, however, once
again set out allegations related to the confidential peer-review materials that the Board
had allegedly received before it considered Dr. Glunk’s suspension. The judge presiding
over Glunk II in the Eastern District dismissed the Main Line Health parties because they
were not state actors, and declined to exercise supplemental jurisdiction over the state law
claims against them. The state officials that Dr. Glunk had sued in both Glunk I and
Glunk II remained in the case. Glunk II was then transferred in June 2016 to the Middle
2

Case: 17-1063

Document: 003112626622

Page: 3

Date Filed: 05/18/2017

District pursuant to the first-filed rule, see EEOC v. Univ. of Pa., 850 F.2d 969, 971 (3d
Cir. 1988), due to substantial overlap with the subject matter of the earlier-filed Glunk I.
After the transfer, a Magistrate Judge recommended that the District Court grant
the defendants’ motions to dismiss Glunk II as duplicative of Glunk I. In the meantime,
the District Court dismissed the second amended complaint in Glunk I for the failure to
state a claim upon which relief could be granted. The District Court then dismissed
Glunk II on res judicata grounds, concluding that the order in Glunk I was a final
judgment on the merits involving the same parties and essentially the same cause of
action as Glunk II. This appeal followed.
On appeal, Dr. Glunk argues that the District Court should not have dismissed his
amended complaint because he says he brought a new, distinct cause of action in
Glunk II. That claim was based on the revelation, in October 2014, that the Board had
allegedly received confidential peer-review materials before it considered Dr. Glunk’s
suspension. Dr. Glunk also argues on appeal that the District Court abused its discretion
when it stayed discovery while the state officials’ motions to dismiss were pending. Dr.
Glunk asserts that discovery of an electronic-mail chain discussing the peer-review
materials that had been sent to the Board would have shown that his claims were viable.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District
Court’s dismissal order is plenary, see Fleisher v. Standard Ins. Co., 679 F.3d 116, 120
(3d Cir. 2012), and we review the District Court’s decision to stay discovery for an abuse
of discretion, see In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 365 (3d

3

Case: 17-1063

Document: 003112626622

Page: 4

Date Filed: 05/18/2017

Cir. 2001). Because Dr. Glunk proceeded pro se in the District Court, we construe his
pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
We will affirm. The doctrine of res judicata, also known as claim preclusion, bars
claims that were brought, or could have been brought, in a previous action. In re
Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008). Claim preclusion applies where there is
“(1) a final judgment on the merits in a prior suit involving (2) the same parties or their
privies and (3) a subsequent suit based on the same cause of action.” Id. (citation
omitted). In determining whether the same cause of action is involved, the courts look to
the “essential similarity of the underlying events giving rise to the various legal claims.”
Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991) (citation omitted).
We recently affirmed the District Court’s judgment in Glunk I. Glunk v.
Pennsylvania State Bd. of Med., No. 16-3996, 2017 WL 1403163, at *5 (3d Cir. Apr. 19,
2017). As our opinion in that case states, Dr. Glunk’s second amended complaint in
Glunk I alleged that there was “new evidence” that was not available when the
Commonwealth Court heard his appeal from the suspension proceedings. Id. The nature
of that new evidence was that the Board had allegedly received confidential peer-review
materials enclosed with an ex parte letter that somehow influenced the hearing officer’s
decision to suspend Dr. Glunk’s license. Id. As we explained in the opinion affirming
the District Court’s judgment in Glunk I, the allegations concerning the ex parte letter
and the peer-review materials could not state a viable due process claim. Id. Those
documents had nothing to do with the witness whose testimony was used to support the

4

Case: 17-1063

Document: 003112626622

Page: 5

Date Filed: 05/18/2017

charge of immoral conduct, and the hearing officer’s determination was based on the
credibility of that witness. Id.
As the District Court explained in this case, Dr. Glunk based his suit in Glunk II
on essentially similar allegations concerning Dr. Glunk’s discovery, in October 2014, that
the Board had allegedly received confidential peer-review materials with the ex parte
letter. The state officials that remained in Glunk II after it was transferred to the Middle
District in June 2016 had already been sued based on those allegations in Glunk I. Dr.
Glunk filed the original complaint in Glunk II in October 2015, and filed the second
amended complaint in the earlier-filed Glunk I three weeks later. Both of those
complaints raised a due process claim based on the ex parte letter and peer-review
materials sent to the Board. Contrary to Dr. Glunk’s assertion, therefore, there is nothing
about the ex parte letter and peer-review materials that was not or could not have been
litigated in Glunk I. Under those circumstances, the District Court was duty-bound to
dismiss Glunk II under the doctrine of claim preclusion.
Dr. Glunk’s challenge to the District Court’s discovery stay also provides no basis
for reversal. In the Glunk I appeal, we concluded that “additional discovery of
communications at the Department of State would not have revealed evidence to support
the necessary elements of a claim for relief.” Id. So too here—just as in Glunk I, the ex
parte materials that had been sent to the Board did not relate to the witness that accused
Dr. Glunk of wrongdoing. Furthermore, the decision to stay discovery in Glunk II while
the motions to dismiss were pending was a straightforward exercise of docket

5

Case: 17-1063

Document: 003112626622

Page: 6

Date Filed: 05/18/2017

management. See In re Orthopedic, 264 F.3d at 365 (not an abuse of discretion to stay
discovery while considering motion to dismiss).
For the foregoing reasons, we will affirm the District Court’s judgment.

6