Jones v. Mirza et al

Filing 89

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 1/10/2017. (nmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MATTHEW JONES,
Plaintiff,
v.

Civ. No. 15-1017-RGA

DR. KHALID MIRZA, et aI.,
Defendants.

Matthew Jones, Greenwood, Delaware. Pro Se Plaintiff.
Richard Galperin, Esquire, and Joshua H. Meyeroff, Esquire, Morris James LLP,
Wilmington, Delaware. Counsel for Defendant Khaled Mirza, M.D.
Dawn C. Doherty, Esquire, and Emily K. Silverstein, Esquire, Marks, O'Neill, O'Brien,
Doherty & Kelly, P.D., Wilmington, Delaware. Counsel for Defendant Dover Behavioral
Health.

MEMORANDUM OPINION

January 10 , 2017
Wilmington, Delaware

Plaintiff Matthew Jones, who appears pro se, filed this action on November 4,
2015, against Dr. Khaled Mirza (improperly named as Dr. Khalid Mirza) and Dover
Behavioral Health System (improperly named as Dover Behavioral Health Hospital).
The original complaint was dismissed on August 8,2016, and Plaintiff was given leave
to amend only to the extent that he raise claims that are not time-barred, Defendants
are not immune from suit, and the Court has jurisdiction. 1 Plaintiff filed an Amended
Complaint on August 17, 2016. (0.1.72). He asserts jurisdiction by reason of a U.S.
government defendant. Defendants move to dismiss pursuant to Fed. R. Civ. P.
12(b)(1), 12(b)(5), and 12(b)(6). Briefing on the matter is complete.

BACKGROUND
The Amended Complaint (0.1. 72) indicates the basis for jurisdiction is the U.S.
government as a defendant. Plaintiff alleges that during the fall-winter of 2015, he was
forcefully confined, many times, at Dover Behavioral Health where he was deprived of
his due process rights and given large amounts of inappropriate medication that
damaged his health and threatened his life. (Id. at 4, 5). Plaintiff alleges assault by
reason of forceful injections that he did not need, that Defendants: (1) wrote emails that
slandered him, (2) "repeatedly committed conspiracy against [his] rights," (3) repeatedly
made false statements about health care; (4) repeatedly attempted murder; (5) and
violated numerous federal criminal statutes. The Amended Complaint refers to
Defendants as State actors.

1The August 8, 2016 memorandum opinion and order dismissed Defendant
Delaware Psychiatric Center (improperly named as Delaware Psychiatric Hospital).
(0.1. 70, 71).

Medical records attached to the Amended Complaint indicate that Plaintiff was
hospitalized at Dover Behavioral Health System from September 24, 2015 through
October 8, 2015 when he was discharged. (0.1. 73). He was seen by Dr. Mirza and
other physicians during that time. (Id.). Plaintiff was involuntarily hospitalized a second
time from October 19, 2015 through November 3, 2015 and seen by Dr. Mirza, as well
as other physicians, during the second hospitalization. (ld.).
The Amended Complaint alleges that Defendants' acts caused Plaintiff physical
harm. He seeks compensatory damages.
STANDARDS OF LAW

Rule 12(b){1). Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the
dismissal of an action for "lack of subject matter jurisdiction." A Rule 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 consider the 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. Intron, 678
F.3d 235, 243 (3d Cir. 2012)). In reviewing 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. 1977).
Rule 12(b){5). A defendant may file a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(5) when a plaintiff fails to properly serve him or her with the summons and
complaint. See Fed. R. Civ. P. 12(b)(5). A plaintiff "is responsible for having the
summons and complaint served within the time allowed by Rule 4(m)." Fed. R. Civ. P.

2

4(c)(1). Rule 4(m) imposes a time limie for perfection of service following the filing of a
complaint. Fed. R. Civ. P. 4(m). If service is not completed within that time, the action
is subject to dismissal without prejudice. Id. See also MCI Telecomms. Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d CiL 1995).
Rule 12(b)(6). Under Rule 12(b)(6), a motion to dismiss may be granted only if,

accepting the well-pleaded allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that those allegations "could not
raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558
(2007). Though "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." Davis v. Abington Mem'l Hasp., 765 F.3d 236,241 (3d
Cir. 2014) (quoting Twombly, 550 U.S. at 555). In addition, a plaintiff must plead facts
sufficient to show that a claim has substantive plausibility. See Johnson v. City of

Shelby, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed,
however, for imperfect statements of the legal theory supporting the claim asserted.

See id. at 346.
A court reviewing the sufficiency of a complaint must take three steps: (1) take
note of the 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) for any well-pleaded factual allegations, assume their veracity and then

When Plaintiff filed this action on November 4, 2015, the time limit for service
was 120 days. Rule 4( m) was amended effective December 1, 2015, to make the time
limit 90 days.
2

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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 on its judicial
experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 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) (internal quotation
marks omitted). 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 Catalysts LLC, 765 F.3d 306,
315 (3d Cir. 2014).
Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(1), (5) and (6)
on the grounds that: (1) Plaintiff failed to serve them with the Amended Complaint and
its exhibits; (2) the Court lacks jurisdiction; (3) the medical claims do not rise to the level
of constitutional violations; (4) to the extent Plaintiff raises medical negligence, he failed
to comply with Delaware's statutory requirements; (5) the claims are time-barred; (6) the
Amended Complaint improperly reinstates 42 U.S.C. § 1983 claims and is deficient in
suggesting that Defendants are State actors; (7) there are no plausible claims for relief;
and (8) the claims are frivolous. (0.1.74).
As Defendants point out in their replies (0.1. 76, 77), Plaintiff's opposition (0.1.
75) does not address Defendants' grounds for dismissal. Instead it refers to his mother

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(a non-party) and medical treatment she received from Dr. Mirza. Plaintiffs sur-reply3
addresses the grounds for dismissal and contends that: (1) the parties were properly
served, (2) Defendants committed attempted murder and assault with deadly force and
lesser included crimes, (3) he does not allege medical malpractice as Defendants
committed intentional acts; (4) Defendants violated federal criminal statutes and there is
no statute of limitations on these claims; and (5) Defendants are "government actors."
(D.1. 78).

DISCUSSION
As currently pled, the Amended Complaint does not raise a federal question.
The Amended Complaint alleges jurisdiction by reason of a U.S. government
defendant, but no such defendant has been named. While the Amended Complaint
invokes numerous federal criminal statues, 18 U.S.C. §§ 241,242,245,246,249,
351 (e), 1113, 1117, and 2340A, they do not serve to vest this court with jurisdiction and
Plaintiff lacks standing to proceed under those statutes. See Allen v. Administrative

Office of Pennsylvania Courts, 270 F. App'x 149,150 (3d Cir. 2008); see United States
v. Friedland, 83 F.3d 1531, 1539 (3d Cir. 1996) ("[TJhe United States Attorney is
responsible for the prosecution of all criminal cases within his or her district."). The
decision of whether to prosecute, and what criminal charges to bring, generally rests
with the prosecutor. See United States v. Batchelder, 442 U.S. 114, 124 (1979).

3Plaintiff's sur-reply was filed in violation of D. Del. LR 7.1.2(b), which provides
that following the filing of a reply, no additional papers shall be filed absent Court
approval. The Court, however, considers the sur-reply given Plaintiff's status as a pro
se litigant.
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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) (for diversity jurisdiction the matter in controversy must be between
citizens of different States). Accordingly, because the Court lacks subject matter
jurisdiction over this matter, dismissal pursuant to Rule 12(b)( 1) is appropriate.
To the extent, the Amended Complaint attempts to again raise constitutional
claims pursuant to 42 U.S.C. § 1983 with regard to Plaintiffs two hospitalizations4 at
Dover Behavioral Health System, it alleges conclusorily that Defendants are State
actors. The Court takes judicial notice that Dover Behavioral Health System is a private
psychiatric facility providing behavioral health care services to adults and adolescents
and that Dr. Mirza is one of its staff psychiatrists. See http://www.uhsinc
.com/behavioral-health/ (Jan. 9, 2017); http://www.doverbehavioral.com/about-dover­
behavioral-health/meet-our-medical-staff/ (Jan. 9, 2017). 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).
Finally, after thoroughly reviewing the Amended Complaint, the Court draws on
its judicial experience and common sense and finds that the allegations are not
plausible on their face. Indeed, the Amended Complaint consists of fantastical or

4Plaintiff makes it clear in his sur-reply that he does not allege medical
negligence claims. (See D.t. 78 at 6).

6

delusional claims that are clearly baseless, frivolous, and fail to state claims upon which
relief may be granted. Therefore, dismissal pursuant Rule 12{b){6) is also appropriate.
CONCLUSION

For the above reasons, the Court will grant Defendants' motion to dismiss the
Amended Complaint pursuantto Fed. R. Civ. P. 12{b){1) and (6).5 (D.1. 74).
Amendment is futile.
An appropriate order will be entered.

5The Court sees no need to address whether dismissal pursuant to Rule 12(b){5)
is appropriate.

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