Jones v. Mirza et al
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/8/2016. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THEDISTRICT OF DELAWARE
Civ. No. 15-1017-RGA
DR. KHALID MIRZA, et al.,
Matthew Jones, Greenwood, Delaware. Pro Se Plaintiff.
Joshua H. Meyeroff, Esquire, Morris James LLP, Wilmington, Delaware. Counsel for
. Defendants Dr. Khaled 'Mirza :and .Dover Behavioral Health. ·
Joseph ClementHandlon, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant~Delaware Psychiatric Center. ·
, 2016 .
1~~~.s~ District Judge:
Plaintiff Matthew.Jones, who appears pro se, filed this action on November 4,
· 2015 against Dr. Kha led Mirza (improperly named as Dr. Khalid Mirza), Dover
Behavioral Health, and .Delaware_ Psychiatric Center (improperly named as Delaware
Psychiatric Hospital). He asserts jurisdiction by reason of a federal question.
Defendants move-to dismiss pursuant to Fed. R. ·Civ. P. 12(b)(1) and 12(b)(6) and, in
turn, plaintiff moves for summaryjud_gment. (D.1. 8, 10, ·23, 35). Briefing on.the matters
is complete. The parties also filed numerous other motions.
Plaintiff alleges that .Dr. Mirza firsttreated him at the Delaware Psychiatric Center
.and that medication administered in high doses by Dr. Mirza resulted in a dramatic
weight gain, high sugar, and high blood pressure. Plaintiff allegesihatDr. Mirza's
ireatment ·could ·have killed him. Dr. Mirza remained plaintiff's physician at .Dover
Behavioral Health for two periods despite their poor history and plaintiff's repeated
Tequestsfor a new physician.
:Plaintiff states that he was held on court committal at both hospitals. He alleges
ihat, ·prior to the time he was sent to Delaware Psychiatric Center, a judge ordered his
discharge, but Dover Behavioral Health disregarded the order for discharge and that
plaintiff not be sent to Delaware Psychiatric Center. Plaintiff alleges that ·he was
prevented from attending difficult to get medical appointments due to his hospitalization. ·
The Complaint states thatthe claims occurred ii") 2007 and 2015. Medical
records attached to the Complaint indicate that Plaintiff was hospitalized at the
.Delaware Psychiatric Center from February 13, 2007 through April 5, 2007 and treated
·.by Dr. Mirza during that time.· He was admitted to Horizon-Focus of Delaware in April
2008. (D.I. 1, 4). Plaintiff seeks compensatory .damages.
:STANDARDS OF .LAW
Because Plaintiff proceeds pro se, his pleading is liberally construed and his
complaint, "however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted .by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)~
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the dismissal of an
:action for "lack of subject matter jurisdiction:" A Huie 12(b)(1) motion may be treated as
either a facial or factual challenge to the court's subject matter jurisdiction. See
Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014): In -reviewing
a facial attack, "the court must only considerthe.allegations of the complaint and.
documents referenced therein and attached thereto, in·the light most favorable to the
plaintiff." Id. at 358 (quoting In re.Schering Plough Corp. v. lntron, 678-F.3d 235, 243
(3d Cir. 2012)). ·in revi.ewing a factual attack, the court may consider evidence outside
the pleadings. Mortensen v. First Fed. Sav. and Loan Ass'n, :549 F.2d "884, 891 (3d Cir.
Under Rule 12(b)(6), a motion to dismiss may.be granted only if, accepting the
well-'pleaded allegations in the complaint as tr:ue and viewing them in the light most
favorable to the plaintiff, a court concludes thatthose allegations "could not.raise a
claim of entitlement to relief." Bell At/. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
ThoLjgh "detailed factual allegations" are not required, a complaint must do more than
simply provide "labels and conclusions" or "a formulaic recitation of the elements of a
cause of action." Davisv. Abington Mem'J Hosp., 765 F.3d236,.241 (3d Cir. 2014) ·
(quoting· Twombly, 550 U.S. at 555). In addition, a plaintiff must plead facts sufficient to
showthat a claim has substantive plausibility. See-Johnson v. City.of Shelby,
_U.S._, 135 S.Ct. 346, 347 (2()14 ). A complaint may not be dismissed, however, for
imperfect statements of the legal theory supporting the claim asserted. See id. at 346.
A court reviewing the sufficiency ofa complaint must take three steps: (1) take
note ofthe-elements the plaintiff must plead to state a claim; (2) identify allegations
that, because they are no more than conclusions, are not entitled to-the assumption of
truth; and (3) when there are well-pleaded factual allegations, assume their veracity,
and then determine whether they .plausibly give rise to an entitlement to relief. Connelly
v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Deciding whether a claim is
plausible is .a "context-specific task that requires the -reviewing court to draw ori its
judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To survive a motion to dismiss under Fed. R. -Civ. P. 12(b)(6), a complaint-must contain
:sufficient factual matter, accepted as·true, to state a claim to relief that is .plausible on
its face. See Williams v. BASF CatalystsLLC,765 F.3d 306, 315(3d Cir. 2014).
Delaware Psychiatric Center moves for dismissal for want of jurisdiction and on
the grounds that it is immune from suit,-the claims aretime-barred, and the Complaint
fails to state a claim upon which relief may be granted. Dr. -Mirza and Dover Behavioral
Health move for dismissal on the grounds that the claim sounds in negligence, it is time. barred, it fails as a matter of law, and the claims are frivolous.
Plaintiff opposes the motion, moves for summary judgment, and contends that
the statute of limitations is inapplicable because circumstances rendered him unable to
_ timely file his complaint and it does not apply to malpractice cases. He also contends
that crimes have been ongoing since 1986-and/or 2005. Plaintiff raises other claims in
his combined opposition to the motion-to dismiss/motion for summary judgmentthat
were not raised in his Complaint. The Court does not consider these claims as part of
the instant Complaint.-_ See e.g., Bell v. City of Philadelphia, 275 F .App'x 157, 160 (3d
Cir. 2008) ("A plaintiff may not amend his complaint through arguments in his brief in
opposition to a motion for summary judgment."). DISCUSSION
As currently pied, the Complaint does not raise a federal question. At most,
Plaintiff alleges medical negligence. It is well-established that allegations of medical
malpractice are not sufficient to establish a constitutional violation. See-White v.
Napoleon, 897 F.2d 103, ·108-09 (3d Cir. 1990) (citations omitted); see a/so Daniels v.
Williams, 474 .. U.S. 327, 332-34 (1986) (negligence is not compensable as a
constitutional deprivation). Because the Complaint does not raise a federal question,
jurisdiction maynot lie under28 U.S.C. § 1331.
In addition, ·the .Court does not have jurisdiction by reason of diversity. The
Complaint states that Plaintiff and Defendants are citizens of the State of Delaware and, therefore/the -requisites for diversity jurisdiction are not met. See 28 U.S.C.
§ 1332(a)(1 ). Accordingly, the Court lacks subject matterjurisdiction over this matter.
Nevertheless, ·the Court will address the- other grounds for relief because, as
discussed below, Plaintiff will be given leave to amend.
Eleventh Amendment Immunity
It is appropriate to dismiss all claims against Delaware Psychiatric Center
because it is immune from suit. The Eleventh Amendment of the United States
Constitution protects an unconsenting state or state agency from a suit brought in
federal court by one of its own citizens, regardless of-the relief sought. See Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984); Edelman v. Jordan, 415 U.S. 651 (1974). Hence, as
an agency of the State of Delaware, the Delaware Psychiatric Center is entitled to
immunity under the Eleventh Amendment. See e.g. State of Delaware Dep't of Health.
and Social Services v. Sheppard, 864 A.2d 929 (Del. 2004) (table) (sovereign immunity
not waived in case against State by patient who was in the care of the State psychiatric
facility; .action may not be maintained because ·neither the State nor its agencies are
considered persons for a cause of action under42U.S.C.§1983).
For these reasons, the Court will grant Delaware Psychiatric Center's motion to
dismiss as it is immune from suit.
To the extent Plaintiff seeks to Taise a § 1983 claim, it fails. As discussed above,
the Complaint does not raise constitutional violations. In addition, when bringing a
§ 1983 claim, a plaintiff must allege that some person has deprived him of a federal
right, and that the person who caused the deprivation acted under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). There are no allegations that Dover Behavioral
Health acted under color of law and, therefore, its dismissal as to the § 1983 claims is
Dr. Mirza is mentioned in Plaintiff's medical records as providing him care when
Plaintiff was hospitalized at the Delaware Psychiatric Center and, therefore, he could .be
considered a state actor.. However, the claims against him are time-barred.
Plaintiff commenced this action on November4, 2015. (D.I. 1). Plaintiff's
medical records, attached to the Complaint, are from 2007 and 2008. Although the
Complaint states that acts took place in 2007 and 2015 (D.I. 1 at 4), neitherthe
allegations in the Complaint, northe medical records submitted as exhibits, make
reference to any acts occurring in 2015.
For purposes of the statute of limitations, § 1983 claims are characterized as
personal injury actions. Wilson v. Garcia, 471 U.S. 261, 275 (1983). In Delaware,
§ 1983 claims are subject to a two-year limitations period. See 10 Del. C. § 8119;
Johnson v. Cullen, 925 F. Supp. 244, 248 (D. Del. 1996). Section 1983 claims accrue
"when plaintiff knows or has reason to know of the injury that forms the basis of his or .
her cause of action." Id. Claims not filed within the two-year statute of limitations
period areiime-barred and must-be dismissed. See Smith v. State, 2001 WL 845654,
ar*2 (D. DeL2001).
Plaintiff's claims are time-barred as is evident from the face of the Complaint. In
addition, all claims that .accrued prior to November 4, 2013 are time-barred. Therefore,
the Court will grantthe motions to dismiss the § '1983 claims as time-barred. Plaintiff
will be _given leave to amend the § 1983 claims given that his Complaint, though
deficiently pied, alleges wrongful acts took place in 2015.
Affidavit of ·;Merit
DoverBehavioral Health and Dr. Mirza moves to dismiss the medical negligence
claims on the grounds that Plaintiff failed to file an affidavit of merit in support of his
Complaint as is required under 18 Del. C. § 6853. In Delaware, medical malpractice is
governed by the Delaware Health Care Negligence Insurance and Litigation Act. See
18 Del. C. §§ 680f-6865. When a party alleges medical negligence, Delaware law .
requires the party to produce expert medical testimony detailing: "( 1) the applicable
standard of care, (2) .the alleged deviation from that standard, and (3) the causal link
between the deviation and the alleged injury." .Bonesmo v. Nemours Found., 253 F.
Supp. 2d 801, 804 (D. Del. 2003) (quoting Green v. Weiner, 766 A.2d 492, 494-95 (Del.
To the extent Plaintiff alleges medical negligence, at the time. he-filed the
Complaint ·he was required to .submit an affidavit of merit as to each defendant, signed
by an expert witness. See 18 Del. C. § 6853(a)(1 ). He failed to .do so. Therefore, the
Court will grant the motions to dismiss .the medical negligence claims. In addition,
similar to the § 1983 claims, any medical negligence .·claims that occurred prior to
November 4, 2013 are barred by a two-year limitation period. See-18 Del. C. § 6856.
Plaintiff, however, will be given leave to amend the medical negligence claim as his
Complaint, though deficiently pied, alleges wrongful acts took place in.2015.
:Motion for Summary.Judgment
The Court will dismiss Plaintiff's motion for summary juc:fgment without prejudice
as premature. (D.I. 35). The Complaint fails to state cognizable claims and discovery
has not commenced. The Court will dismiss, as moot, Dover Behavioral Health's
motion to strike Plaintiff's submissions in support of his motion for summary judgment.
Motions for Contempt
-Plaintiff's motions to hold non-parties and Defendants in contempt are without
merit, and they will be denied. (D.I. 24, 25, 26, 27)
to Quash/Motion ·to Stay Discovery
Plaintiff has served, or attempted to serve, subpoenas on Defendants and nonparties. (SeeD.l 12, 13, 14, 15, 16, 17, 18, 19,20,21, 22,29, 30,.31, 32,33, 34,42,
49, 57). Dover Behavioral Health moves to quash all subpoenas and to stay discovery
until resolution of the dispositive motions. (D.1. 38). Plaintiff opposes the motion (see
D.I. 41 ), but failed to .provide ·notice-to DoverBehavioral Health of his opposition as is
required byihe Federal Rules of Civil Procedure. 1 Dover Behavioral Health moves to
strike the response. (D.I. 44). The Court will ·dismiss as moot the motion to strike.
Under Fed. R. Civ. P.26(d)(1 ), a party may not seek discovery from any source
before the parties have conferred as required by-Rule 26(f). Under Rule 26(f), the
·parties are required to confer at least 21 days before a scheduling conference is to be
held or a scheduling order is due underthe Rule 16. No Rule 16 scheduling
conference has been ordered or scheduled by-the Court, and. no due date has been set
for a scheduling order. Further, as will be discussed, if, or until, Plaintiff files an
appropriate amended complaint, the Court will not be able to evaluate whether it has
_jurisdiction over this action. Therefore, the Court will grant the motion to.quash all
Plaintiff is admonished to comply with Federal Rules of Civil Procedure.
subpoenas and to stay discovery. See Kabbaj v. Simpson, 2013 WL 867751, at *4 (D.
Del. Mar. 7, 2013) (court sua sponte quashes subpoenas obtained by plaintiff served in
absence of Rule 16 scheduling conference or case management order authorizing
discovery), report and recommendation adopted, 2013 WL 1405948 (D.Del. Apr. 8,
2013). The· parties may not engage in discovery until the stay is lifted by the Court.
Plaintiff has filed two motions for leave to amend along with a proposed
amended complaint. (D.I. 61, 63) . .Leave to amend should be granted absent a
showing of "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 the allowance of the amendment, futility of
amendment, etc." Farnan v. Davis, 371 U.S. 178, 182 (1962). Futility of amendment
occurs when the complaint, as amended, does not state a claim upon which relief can
-be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.
1997). Plaintiff's proposed amended complaint does not cure his pleading defects.
Therefore, the Court will deny the motions without prejudice. (D. I. 61, 63).
-However, given Plaintiff's prose status and, as discussed above, the possibility
that he may be able to articulate a claim, he will be given an opportunity to amend his
. pleading, but only to the extent that the claims are not time-barred, defendants are not
immune from suit, and this Court has jurisdiction. See O'Dell v. United States Gov't,
.256 F. App'x 444 (3d Cir. 2007). Plaintiff is placed on notice that the Court will strike
and will not consider any amended complaint that fails to comply with the foregoing
.For the above reasons, the Court will: (1) grant Defendants' motions to dismiss
(D.I. 8, 10, 23); (2) deny Plaintiff's motions to hold non-parties and defendant(s) in
contempt (D.I. 24, 25, 26, 27); (3) dismiss Plaintiff's motion for summary judgment
without prejudice as premature (D.I. 35); (4) grant DoverBehavioral Health's motion to
quash all subpoenas and to stay discovery (D.I. 38); (5) dismiss as moot Dover
Behavioral Health's motion to strike (D.I. 44); (6) dismiss as moot Dover Behavioral
Health's motion to strike (D.I. 56); and (7) deny without .prejudice Plaintiff's motion for
leave to amend (D.I. 61, 63). Plaintiff will be given leave to amend as set forth in the
body of this Memorandum Opinion.
An appropriate order will be entered.
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