Fieni v. Townsend et al
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 10/28/2016. (fms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARY LOU FIENI,
DR. JOHN B. TOWNSEND, Ill and
DIVISION OF PROFESSIONAL
Civ. No. 16-113-SLR
Mary Lou Fieni, pro se.
Peter S. Murphy, Esquire, Wilmington, Delaware. Counsel for defendant Dr. John B.
Patricia Davis Oliva, Deputy Attorney General, Department of Justice, Dover, Delaware.
Counsel for defendant Division of Professional Regulation.
Dated: 6vjrbw IBJ2016
Plaintiff Mary Lou Fieni ("plaintiff'), who proceeds pro se, resides in
Pennsylvania. Plaintiff, now in her seventies, worked for most of her career in the area
of healthcare at various medical facilities. The evidence in the record indicates that
plaintiff has a history of sustaining numerous injuries, most of which occurred at work,
starting approximately in the year 1990 and up to 2008. (D.I. 1, ex. H at 3)
Defendant Dr. John B. Townsend Ill, M.D. ("Dr. Townsend") is a neurologist who
practices at Delaware Neuroscience Specialists in Newark, Delaware. (D.I. ex. 1-A at
13) In his practice, Dr. Townsend examines patients relating to workers' compensation
claims. Id. Defendant State of Delaware Division of Professional Regulation ("DPR") is
. a professional regulatory agency. Pending before the court is DPR's motion to dismiss.
Dr. Townsend filed a motion for joinder with DPR on May 12, 2016. (D.I. 18)
Specifically, Dr. Townsend requested incorporation of the arguments raised in
paragraphs 1-2 and 4-6 in DPR's motion to dismiss. He did not add additional
arguments to DPR's motion to dismiss. 1 The court grants Dr. Townsend's motion for
. joinder under Fed. R. Civ. P. Rule 20(a)(2)(B). The court has jurisdiction over the
matter pursuant to 28 U.S.C. § 1332.2 For the reasons set forth below, the court will
grant defendants' motion to dismiss.
Also pending is plaintiff's motion for entry of a default judgment.
Plaintiff is a resident of Pennsylvania. Dr. Townsend and DPR are located in
Delaware. The complaint identifies an amount in controversy of $100,425. (D.I. 7)
This case comes before the court after plaintiff filed suit alleging that defendant
Dr. Townsend committed perjury under.18 U.S.C. § 1621, violated 28 U.S.C. § 1746
and "Chapter 11 1223, 1225, 12231, and 12233,"3 and that Dr. Townsend made specific
misstatements to plaintiff in the course of her medical examination and in her medical
records. (D.I. 1 at 3) Plaintiff further alleges that DPR failed in its investigation of
plaintiff's complaints against Dr. Townsend. (D.I. 1 at 8)
Plaintiff appears to have filed a workers' compensation claim at some point in
time prior to 2013 for a work-related accident in 2007. (D.I. 1 ex. A at 4; ex. Hat 11)
On January 16, 2013, in relation to plaintiff's workers' compensation claim,
Dr. Townsend examined plaintiff as part of a defense medical exam. (D.I. 1 ex. Hat 11)
Dr. Townsend did not treat or diagnose plaintiff during this (or any other) examination,
and at no point in time was Dr. Townsend plaintiff's treating physician. (D.I. 1 ex. 4 at 5)
As a result of plaintiff's defense medical exam, Dr. Townsend prepared a fourteen-page
summary of his evaluation of plaintiff's medical conditions and history. (D.I. 1 ex. 5 at 5)
Also, Dr, Townsend appears to have been deposed about the defense medical exam at
some point in 2013 or 2014. (D.I. 1 ex. 2 at 2)
During 2014 and 2015, plaintiff filed numerous complaints with DPR, alleging that
Dr. Townsend engaged in unprofessional conduct, misrepresented her medical
Further discussion of plaintiff's claims are in the Rule 12(b)(6) discussion portion of
condition to others, failed to provide written medical records to her, and lied during his
deposition. (D.I. 1 ex. 2 at 2) On February 5, 2015, DPR ·sent a letter to plaintiff stating
that its investigation of Dr. Townsend had uncovered no violations of Delaware's
Medical Practice Act. (D.I. 1 ex. 2 at 6)
From February 25 through April 8, 2015, plaintiff wrote three letters to the
Delaware Secretary of State concerning her allegations against Dr. Townsend and
DPR's handing of the matter. 4 (D.I. 1 ex. 3 at 15-18) DPR sent plaintiff a second letter
on November 6, 2015 reiterating its findings, concluding that Dr. Townsend had not ·
violated the Medical Practice Act, and closed the matter. (D.I. 1 ex. 2 at 8)
Plaintiff filed suit in this court on February 29, 2016 (D.I. 1), and served notice on
defendants by mail. 5 (D.I. 4 at 2) On April 15, 2016, plaintiff filed her first motion for
default judgment. (D.I. 4) On May 3, 2016, plaintiff filed a second motion for default
judgment. (D.I. 10) DPR filed~ motion to dismiss on May 2, 2016. (D.I. 7)
Dr. Townsend filed an answer joining DPR on May 12, 2016. (D.I. 18 at 1)
Dr. Townsend also moved to dismiss plaintiff's complaint on the same date. (D.I. 18
Ill. MOTIONS FOR DEFAULT JUDGMENT
A. Standard of Review
Entry of default judgment is a two-step process. Fed. R. Civ. P. 55(a), (b). A
party seeking to obtain a default judgment must first request that the Clerk of the Court
Besides plaintiff's three letters to Jeffrey Bullock, Delaware Secretary of State, plaintiff
has sent letters to this court ex parte with respect to her claims. (D.I. 15, 22)
5 Plaintiff sent the summons and complaint to defendants by UPS Ground. (D.I. 4 at 2)
"enter ... the default" of the party that has not answered the pleading or "otherwise
defend[ed]," within the time required by the rules or as extended by court order. Fed. R.
Civ. P. 55(a). Timely serving and filing a motion to dismiss under Fed. R. Civ. P. 12(b)
precludes entry of default. See Francis v. Joint Force Headquarters Nat'/ Guard, 2006
WL 2711459 (D.N.J. Sept. 19, 2006), aff'd in part, 247 Fed.Appx. 387 (3d Cir.2007)
(unpublished). Even if default is properly entered, the entry of judgment by default
pursuant to Rule 55(b)(2) is within the discretion of the trial court. Hritz v. Woma Corp.,
732 F.2d 1178, 1180 (3d Cir.1984).
"When a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party's default." Fed. R. Civ. P. 55(a) The clerk of court entered a
default in appearance on May 3, 2016. 6 (D.I. 10) There is no evidence in the record,
however, that the summons and complaint were properly served on defendants. See
Fed. R. Civ. P. 4(c). The complaint was not properly served on Dr. Townsend. "A writ
of summons may be served on the defendant in the manner prescribed by any rule of
court, or by stating the substance of it to the defendant personally, or by leaving a copy
of it at the defendant's usual place of abode, in the presence of some adult person, 6
days before the return thereof." 10 Del. C. § 3103. The rules require personal service,
The form submitted by the pro se plaintiff is captioned "Affidavit." The deputy's
signature is related to a "Default Entry." Despite the fact that elsewhere in the form the
phrase "Default & Request, Affidavit Entry, and Judgment" appears, the form is not
noted as entry of a default judgment on the docket. Even if it were, for the reasons that
follow, the court would vacate it.
and it was insufficient for plaintiff to mail her complaint to Dr. Townsend's office.
(D.I. 4 at 2)
Moreover, DPR is ari administrative office or board of the State government, and
"no service of summons upon ... any administrative office, agency, department, board or
commission of the state government, or upon any officer of the state government
concerning any matter arising in connection with the exercise' of his or her official
powers or duties, shall be complete until such service is made upon the person of the
Attorney General or upon the person of the State Solicitor or upon the person of the
Chief Deputy Attorney General." 10 Del. C. § 3103. Plaintiff did not properly serve the
complaint on DPR because, instead of personally serving the individuals required by
statute, she mailed the summons and complaint to the DPR office.
Generally speaking, entry of a default judgment is reserved for those rare
circumstances in which, after a specified period of time, defendants have failed to file a
response. In the case at bar, both defendants are presently before the court and are
moving to dismiss. Therefore, default judgment is an inappropriate remedy. Plaintiff's
motions for default judgment are denied.
IV. 42 U.S.C. § 1983 CLAIM
A. Standard of Review
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, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Furthermore,§ 1983
claims for monetary damages against a State, state agency, or a state official in his
official capacity are barred by the Eleventh Amendment. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989) (internal citations omitted); Ali v. Howard, 353 Fed.Appx.
667, 672 (3d Cir.2009) (unpublished).
Plaintiff's allegations against DPR relate to its handling of plaintiff's complaints
against Dr. Townsend. A§ 1983 claim against DPR is barred by sovereign immunity,
as DPR has neither consented to plaintiff's suit nor waived its immunity under the
In addition, "to state a claim under§ 1983, a plaintiff must allege 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). "A[n individual government] defendant in a civil rights
action must have personal involvement in the alleged wrongdoing; liability cannot be
predicated solely on the operation of respondeat superior. Personal involvement can be
shown through allegations of personal direction or of actual knowledge and
acquiescence." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005).
The substance of plaintiff's complaint against DPR involves clarifications or
corrections that plaintiff wants the DPR to submit concerning Dr. Townsend's alleged
wrongdoing. (D.I. 1 at 8) There are no allegations that DPR was involved in such
wrongdoing. Instead, DPR was conducting routine, administrative work by investigating
plaintiff's complaints against Dr. Townsend. For the foregoing reasons, plaintiff has no
entitlement to relief against DPR under§ 1983.
V. RULE 12(b)(6) GROUNDS FOR DISMISSAL
A. Standard of Review
A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of a complaint's factual allegations. Bell At/. Corp. v. Twombly, 550 U.S. 544, 555
v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must contain
"a short and plain statement of the claim showing that the pleader is entitled to relief, in
order to give the defendant fair notice of what the ... claim is and the grounds upon
which it rests." Twombly, 550 U.S. at 545 (internal quotation marks omitted)
(interpreting Fed. R. Civ. P. 8(a)). Consistent with the Supreme Court's rulings in
Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Third Circuit requires a threepart analysis when reviewing a Rule 12(b)(6) motion. Connelly v. Lane Const. Corp.,·
809 F.3d 780, 787 (3d. Cir. 2016). In the first step, the court "must tak[e] note of the
elements a plaintiff must plead to state a claim." Next, the court "should identify
allegations that, because they are no more than conclusions, are not entitled to the
assumption of truth." Lastly, "[w]hen 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. (citations omitted).
Under Twombly and Iqbal, the complaint must sufficiently show that the pleader
has a plausible claim. McDermott v. Clonda/kin Grp., Civ. No. 15-2782, 2016 WL
2893844, at *3 (3d Cir. May 18, 2016). Although "an exposition of [the] legal argument"
is unnecessary, Skinner v. Switzer, 562 U.S. 521 (2011), a complaint should provide
reasonable notice under the circumstances. Id. at 530. A filed pleading must be "to the
best of the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances," such that "the factual contents have evidentiary
support, or if so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery_." Anderson v. Bd. of Sch. Directors of
Millcreek Twp. Sch. Dist., 574 F. App'x 169, 174 (3d Cir. 2014) (quoting Fed. R. Civ. P.
11(b)). So long as plaintiffs do not use "boilerplate and conclusory allegations" and
"accompany their legal theory with factual allegations that make their theoretically viable
claim plausible," the Third Circuit has held "pleading upon information and belief [to be]
permissible [w]here it can be shown that the requisite factual information is peculiarly
within the defendant's knowledge or control." McDermott, 2016 WL 2893844, at *4
(quotation marks, citation, and emphasis omitted).
As part of the analysis, a court must accept all well-pleaded factual allegations in
the complaint as true, and view them in the light most favorable to the plaintiff. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S. 403, 406
(2002); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). In this regard, a
court may consider the pleadings, public record, orders, exhibits attached to the
complaint, and documents incorporated into the complaint by reference. Tellabs, Inc. v.
Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384-85 n.2 (3d Cir. 1994). The court's analysis is a
context-specific task requiring the court "to draw on its judicial experience and common
sense." Iqbal, 556 U.S. at 663-64.
The first step of the Third Circuit's three-part analysis in reviewing a
Rule 12(b)(6) motion is to take note of the elements a plaintiff must plead to state a
claim. Plaintiff's complaint alleges that defendant Dr. Townsend committed perjury
under 18U.S.C.§1621, violated 28 U.S.C. § 1746 and "Chapter 111223, 1225, 12231,
and 12233," and that Dr. Townsend made specific misstatements to her in the course of
plaintiff's medical examination and on plaintiff's medical records.7 (D.I. 1 at 3)
Plaintiff's 18 U.S.C. § 1621 claim involves a criminal statute; however, this is a
civil proceeding. 8 Plaintiff's claim under 28 U.S.C. § 1746 relates to unsworn
declarations under penalty of perjury in the federal judiciary, but plaintiff has not alleged
that any of Dr. Townsend's declarations were made in connection with a federal
administrative or judicial proceeding that would fall Within the scope of the statute. 9
Under Twombly and Iqbal, the complaint must sufficiently show that the pleader has a
plausible claim. In the case at bar, plaintiff has not pied any plausible claim.
The second and third.prongs of the three-step analysis need not be addressed,
because the court finds the analysis stops after the first prong. Plaintiff's complaint
contains no well-pied factual allegations. In light of these facts, defendants' request for
dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim is granted.
Plaintiff alleges that she "is writing up the Division of Professional Regulation Board."
(D.I. 1 at 8) This is not a cognizable claim against DPR.
8 Plaintiff's complaint also cites "Chapter 111223, 1225, 12231, and 12233," which
appears to be Delaware Criminal Code Title 11. 8 Plaintiff has not pied or established a
private right of action under this criminal statute.
9 As above, plaintiff has not pied or established a private right of action under this
For the foregoing reasons, plaintiff's motions for default judgment (D.I. 4, D.I. 10)
are denied. Defendants' motions to dismiss (D.I. 7, D.I. 18) and Dr. Townsend's motion
for joinder (D.I. 18) are granted. An order shall issue.
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