LIGGON-REDDING v. VIRTUA VOORHEES et al
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/6/2014. (drw)n.m.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ELIZABETH LIGGON-REDDING,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 14-3139 (JBS/KMW)
v.
VIRTUA VOORHEES, et al.,
MEMORANDUM OPINION
Defendant.
SIMANDLE, Chief Judge:
This matter comes before the Court on Plaintiff Elizabeth
Liggon-Redding’s motions for leave to file an amended complaint
and for appointment of counsel. [Docket Item 5.] Plaintiff brought
medical malpractice and race-based discrimination claims against
Defendants Virtua Voorhees hospital, Jane Doe Nurse, Lois
Woodcock, Mary Eadline, and Social Workers. [Docket Item 1.]
Following a preliminary review of Plaintiff’s in forma pauperis
Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court issued
an Opinion and Order [Docket Items 2 & 3] dismissing Plaintiff’s
Complaint without prejudice for failure to plead a plausible claim
and for lack of subject matter jurisdiction. Plaintiff now
requests leave to file an Amended Complaint1 to cure the
deficiencies discussed in the Court’s Opinion, or, in the
alternative, appointment of pro bono counsel to help Plaintiff
1
Plaintiff’s Amended Complaint is attached to Plaintiff’s motion
for leave to file same. [Docket Item 5.]
cure the deficiencies. Because Plaintiff’s Amended Complaint fails
to state a plausible claim for relief and lacks subject matter
jurisdiction, the Court will deny Plaintiff’s motions for leave to
file an Amended Complaint and for appointment of counsel and will
dismiss Plaintiff’s Complaint with prejudice. The Court finds as
follows:
1.
Plaintiff’s original Complaint alleged that, in 2013,
she went to Virtua Voorhees Hospital Emergency Room complaining of
chest pains. (Compl. at 1.) She claimed that healthcare providers
failed to diagnose a blocked artery. (Id.) In March 2014,
Plaintiff allegedly returned to the Virtua Voorhees Emergency
Room, where she was admitted into the ICU and remained for two
weeks. (Id. at 2.) One of her doctors allegedly said that she
should go to a rehabilitation facility when she was discharged.
(Id.) She claimed, “[t]he Social Worker said I could not go
because she had told the rehab that I had a pending Landlord
Tenant Matter and for that reason I could not go to a rehab.”
(Id.) She stated, “I complained to hospital personel [sic] and was
told I could go home. I appealed that decision and was threatened
by a nurse that I could not wait for the outcome of my appeal if I
did not leave she was going to call the Police and have me
arrested for for [sic] trespassing . . . .” (Id.) The nurse “threw
[her] out of the hospital in the rain in hospital scrubs and
thongs.” (Id.) Plaintiff “had to have a second surgery which she
feels she may not have had to have had she not been mistreated by
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employees/personel [sic] at Virtua Voorhees.” (Id.) Plaintiff
“believe[d] [sic] she was treated in this manner because of her
race African-American.” (Id.)
2.
Because Plaintiff’s in forma pauperis application showed
that she was indigent, the Court permitted her to file her
Complaint without paying the filing fee. The Court then
preliminarily reviewed her Complaint. The Court held that
Plaintiff had not pled a plausible discrimination claim because
“Plaintiff has not pled any facts indicating that her alleged
mistreatment at the hospital was due to her race. She stated her
conclusion that it was caused by her race, but she gave no basis
for that belief.” Liggon-Redding v. Virtua Voorhees, Civ. 14-3139
(JBS), 2014 WL 2571711, at *2 ¶ 5 (D.N.J. June 6, 2014) (“June 6,
2014 Opinion”). The Court also held that Plaintiff did not plead a
plausible medical malpractice claim because her Complaint “d[id]
not allege the applicable standard of care or that a deviation
from that standard occurred,” as medical malpractice law requires.
Id. at *2 ¶ 6. In addition, the Court concluded that subject
matter jurisdiction was absent because “this action is not a suit
between citizens of different states” and because “Plaintiff has
not alleged a plausible claim for relief under federal law.” Id.
at *3 ¶¶ 8-9. Plaintiff’s original Complaint was dismissed without
prejudice for failure to state a claim and lack of subject matter
jurisdiction.
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3.
On June 13, 2014, Plaintiff filed a motion for leave to
amend and for appointment of pro bono counsel. [Docket Item 5.]
Plaintiff’s Amended Complaint reiterates the facts alleged in her
original, deficient Complaint by incorporating the factual summary
set forth in the June 6, 2014 Opinion. She states: “Number one of
MEMORANDUM OPINION explains exactly what happened to the Plaintiff
. . . .” (Am. Compl. ¶ 1.) Plaintiff also brought additional
factual allegations. She states “Plaintiff was allowed to stay in
the hospital until her Appeal was answered and was thrown out and
denied that right.” (Id. ¶ 4.) Plaintiff alleges that Defendants
violated the Civil Rights Act of 1964 when “she was denied the
fulll [sic] and equal enjoyment of goods, services, facilities,
privileges, advantages, and accommodations” and that she was
“thrown out of the hospital in that matter becasue [sic] she was
BLACK!” (Id. ¶ 4) (emphasis in original). She also wrote, “What
Caucasion has been treated in a simlar [sic] manner?” (Id.)
4.
Plaintiff describes her medical malpractice claim as a
failure to diagnose. She alleges that “[i]t is a known fact that
many do not take womens heart problems serious I had two strrkes
[sic] against me I was a women [sic] and a Black women [sic] at
that!” (Id. ¶ 5.) She alleges that Defendants “refused to do [a]
test that would have shown that the Plaintiff had a Blocked
Artery” and that this “clearly shows the deviation from the
applicable standard of care.” (Id. ¶ 6.)
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5.
Plaintiff further alleges that “[t]his action should not
have been dismissed for lack of subject matter jurisdiction
because of a P.O.Box [sic] address The Plaintiff does not reside
in Voorhees NJ.” (Id. ¶ 7.) Plaintiff states that as a “domestic
violence survivor,” she “has done everything in her power to hide
where she actually lives.” (Id.)
6.
Under Federal Rule of Civil Procedure 15(a), leave to
amend shall be freely given, but “the grant or denial of an
opportunity to amend is within the discretion of the District
Court . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962). “Among
the grounds that could justify a denial of leave to amend are
undue delay, bad faith, dilatory motive, prejudice, and futility.”
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d
Cir. 1997). “‘Futility’ means that the complaint, as amended,
would fail to state a claim upon which relief could be granted.”
Id.
“In assessing ‘futility,’ the district court applies the same
standard of legal sufficiency as applies under Rule 12(b)(6).” Id.
7.
Under the Rule 12(b)(6) standard, the Court must “accept
all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Fleisher v. Standard Ins. Co., 679 F.3d
116, 120 (3d Cir. 2012) (quotation omitted). The complaint must
contain “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009) (quotations omitted). “A pleading that
offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Id. (quotations
omitted).
8.
The Court must determine whether Plaintiff’s Amended
Complaint meets this standard because complaints filed in forma
pauperis must be screened and “the court shall dismiss the case at
any time if the Court determines that . . . the action . . . is
frivolous or malicious [or] fails to state a claim on which relief
may be granted . . . .” 28 U.S.C. § 1915(e)(2).
9.
Plaintiff’s Amended Complaint does not allege a
plausible discrimination claim. The Court previously held that
Plaintiff’s original Complaint failed to plead any facts
indicating that her alleged mistreatment at the hospital was due
to her race. In her Amended Complaint, Plaintiff similarly fails
to provide sufficient facts to maintain a claim. Plaintiff’s
Amended Complaint merely recites the applicable statutory language
from the Civil Rights Act of 1964 and then states, in conclusory
fashion, that “she was thrown out of the hospital in that manner
becasue [sic] she was BLACK!” (Am. Comp. ¶ 4) (emphasis in
original).
10.
Her Amended Complaint lacks sufficient factual matter to
present a plausible discrimination claim. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft, 556 U.S. at 678. The Civil
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Rights Act of 1964 mandates that “[a]ll persons shall be entitled
to the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any
place of public accommodation . . . without discrimination or
segregation on the ground of race, color, religion, or national
origin.” 42 U.S.C. § 2000a(a). This statute precludes
discrimination “on the ground of race.” Plaintiff “bears the
ultimate burden of persuading the jury that h[er] treatment was
caused by purposeful or intentional discrimination.” Massarsky v.
Gen. Motors Corp., 706 F.2d 111, 117 (3d Cir. 1983). And, at the
pleading stage, Plaintiff must plead facts indicating that she
could sustain this burden. She has not done so. “‘Simply stating
that one endured race discrimination without presenting
allegations suggestive of such conduct does not meet our pleading
standards.’” Deserne v. Madlyn & Leonard Abramson Ctr. For Jewish
Life, Inc., Civ. 10-03694, 2011 WL 605699, at *2 (E.D. Pa. Feb.
16, 2011) (quoting Funayama v. Nichia Am. Corp., Civ. No. 08–5599,
2009 WL 1437656 at *5 (E.D. Pa. May 21, 2009)).
11.
Her conclusory assertion that the hospital’s purportedly
inadequate treatment was due to her race is insufficient,
particularly because Plaintiff has acknowledged that she had
received two weeks of treatment at the hospital. In another case
involving discrimination in a hospital, the Eastern District of
New York held that the plaintiff’s conclusory allegations were
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insufficient, particularly because there was a history of
providing treatment:
Beyond plaintiff's conclusory allegation that defendants
discriminated against him, plaintiff does not allege a
single fact that would nudge[] [his] claims across the
line from conceivable to plausible. . . . For example,
plaintiff does not allege that any other individuals who
were not of plaintiff's protected class, . . . were
given a different medication regimen . . . or accepted
into the aftercare unit for treatment. In addition,
plaintiff alleges no facts such as comments or actions
that would support a discriminatory motive. Finally, at
least with regards to the refusal to accept plaintiff
back into the aftercare unit after his hospitalization,
it is not plausible that after over a decade of treating
plaintiff, defendants decided to deny him treatment
after the March 30, 2011 incident because of his race,
color, creed, or disability.
Goonewardena v. N. Shore Long Island Jewish Health Sys., Civ. 112456, 2012 WL 7802351, at *9 (E.D.N.Y. Nov. 5, 2012) (citations
omitted). While the plaintiff in Goonewardena had a longer history
of treatment than Plaintiff Liggon-Redding discloses in her
Amended Complaint, the same principle applies: Plaintiff failed to
plead any facts indicating that, after two weeks of ICU treatment,
hospital employees began discriminating against her because of her
race.
12.
Plaintiff questions whether Caucasians have experienced
the same treatment that she has experienced, but her conclusory
allegations are insufficient. She does not claim that Caucasians
were treated more favorably in similar circumstances, let alone
present factual grounds for such an allegation of disparate
treatment based on race. “The plaintiff in a disparate treatment
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case must prove as an integral part of his or her case not only
the existence of disparate treatment but also that such treatment
was caused by purposeful or intentional discrimination.” Smithers
v. Bailar, 629 F.2d 892, 898 (3d Cir. 1980). Plaintiff has not
pled facts that would support a disparate treatment claim. In
other words, “Plaintiff has not identified any statement, action,
or circumstance where Plaintiff was treated differently because of
h[er] protected status. Plaintiff has also not established any
causal link between Plaintiff’s alleged discriminatory treatment
and Plaintiff’s race, national origin or religion.” Varol v. PaveRite, Inc., Civ. 11-422 (PGS), 2011 WL 6012964, at *3 (D.N.J. Nov.
30, 2011).
13.
Other cases from this Circuit have affirmed that
conclusory allegations of racial discrimination do not satisfy the
12(b)(6) standard. E.g., Pierre v. Beebe Hosp./Med. Ctr., --- F.
Supp. 2d ---, Civ. 13-2102, 2014 WL 1761164, at *2 (D. Del. Apr.
29, 2014) (dismissing complaint because allegations that Plaintiff
was “wrongfully terminated on an unnamed date by reason of race”
and that a defendant “called him names” are “conclusory”);
Kiniropoulos v. Northampton Cnty. Child Welfare Serv., 917 F.
Supp. 2d 377, 389 (E.D. Pa. 2013) (“Plaintiff’s bare bones
allegations cannot survive a 12(b)(6) motion. Plaintiff merely
alleges that he was born in Greece; he was qualified for the
position . . .; he was discriminated on the basis of national
origin; and the Defendant blatantly treated employees born in the
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United States more favorably. The Amended Complaint makes no
indication of how Defendant treated United States citizens more
favorably nor does it state any facts other than those conclusory
allegations noted above.”) (citations omitted); Rhoades v. Young
Women’s Christian Ass’n of Greater Pittsburgh, Civ. 09-1548, 2010
WL 4668469, at *6 (W.D. Pa. Nov. 9, 2010) (“Plaintiff’s claims for
race discrimination . . . are not supported by the allegations of
the Complaint. . . . Plaintiff must plead more than conclusory
allegations in order to survive a motion to dismiss. Plaintiff’s
complaint does not include a single, non-conclusory allegation
relating to race discrimination.”). Plaintiff failed to support
her race discrimination claim with factual allegations of denial
of hospital services based upon her being black and that
similarly-situated white patients are treated more favorably due
to their race. Her discrimination claim will be dismissed with
prejudice.
14.
In addition, Plaintiff’s Amended Complaint does not
plead a plausible medical malpractice claim. The Court previously
held that Plaintiff’s original medical malpractice claim was
deficient because it did not allege the applicable standard of
care or that a deviation from that standard had occurred. LiggonRedding, 2014 WL 2571711, at *2 (quoting Verdicchio v. Ricca, 179
N.J. 1, 23 (2004) (holding that a plaintiff in a malpractice
action must prove the applicable standard of care, that a
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deviation from that standard occurred, and that the deviation
proximately caused the plaintiff’s alleged injury)).
15.
Plaintiff’s Amended Complaint similarly fails to allege
the required elements of a medical malpractice claim. Plaintiff
alleges that the Defendants’ failure to conduct a test to diagnose
a blocked artery “clearly shows the deviation from the applicable
standard of care,” and that “FAILURE TO DIAGNOSE is a Plausible
CLaim [sic].” (Am. Compl. ¶ 6.) (emphasis in original).
Plaintiff’s allegations are simply legal conclusions. She does not
plead facts showing that this particular test was within the
applicable standard of care and that her medical care deviated
therefrom. Her Amended Complaint does not contain sufficient
factual matter to present a plausible claim for medical
malpractice.
16.
This action must also be dismissed for lack of subject
matter jurisdiction over Plaintiff’s malpractice claim. The Court
previously held that Plaintiff’s original Complaint lacked both
diversity and federal question jurisdiction. Plaintiff’s Amended
Complaint brings the same claims against the same Defendants in
the original Complaint.
Thus, the action is still a suit between
citizens of the same state and lacks diversity jurisdiction.
Defendant Virtua Voorhees has its principal place of business in
Voorhees, NJ. Plaintiff argues that she does not actually reside
in Voorhees, NJ, and that Voorhees is simply the location of her
P.O. Box. This allegation does not establish diversity
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jurisdiction. Diversity jurisdiction requires that “no plaintiff
can be a citizen of the same state as any of the defendants.”
Midlantic Nat. Bank v. Hansen, 48 F.3d 693, 696 (3d Cir. 1995).
Plaintiff has simply alleged that she does not live in Voorhees,
not that she lives in a state other than New Jersey. Furthermore,
the Court notes that the postmark on the envelope in which
Plaintiff sent her motion to amend is from “SOUTH JERSEY NJ.”
[Docket Item 5 at 6.] While a postmark does not establish
citizenship, it supports the inference that Plaintiff is a citizen
of New Jersey, particularly when there is no indication that she
is a citizen of another state.
17.
As to her medical malpractice claim, Plaintiff bears the
burden of establishing subject matter jurisdiction by showing that
the parties are citizens of different states. See Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (“When
subject matter jurisdiction is challenged under Rule 12(b)(1), the
plaintiff must bear the burden of persuasion.”). Plaintiff has not
sustained this burden.
18.
Plaintiff’s motion for leave to amend must be denied
because the Amended Complaint fails to plead plausible claims for
relief and fails to cure the deficiencies of the original
Complaint. The Court previously identified these deficiencies and
gave Plaintiff an opportunity to cure them. Plaintiff has, again,
failed to plead plausible claims for relief in non-conclusory
terms, and, therefore, further amendment would be futile. Because
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amendment would be futile, Plaintiff’s Amended Complaint is
dismissed with prejudice.
19.
In the alternative, Plaintiff asks the Court to appoint
pro bono counsel to represent her in this action. The Court will
deny Plaintiff’s motion because Plaintiff does not meet the
standard for appointing pro bono counsel. Pursuant to 28 U.S.C. §
1915(e)(1), courts may request an attorney to represent any person
unable to afford counsel. When considering whether to appoint pro
bono counsel, the Court must determine, “as a preliminary matter,”
whether Plaintiff’s claims “have some merit in fact and law.”
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citation
omitted). Because Plaintiff failed to state a plausible claim,
Plaintiff’s claims accordingly lack merit. See Gunson v. James,
364 F. Supp. 2d 455, 467 (D.N.J. 2005) (“because the Court has
already assessed the merits of Plaintiff’s [claims] and determined
that all of his claims cannot survive Defendants’ motions for
summary judgment, Plaintiff’s motion to appoint counsel must be
denied”). Plaintiff also has the ability to represent herself,
including expressing herself, filing papers, and making arguments.
Thus, the Court will deny Plaintiff’s request for pro bono
counsel.
20.
Plaintiff has failed to cure the deficiencies in her
original Complaint, which the Court outlined in its June 6, 2014
Opinion.
Accordingly, the Court will deny Plaintiff’s motions for
leave to file an amended complaint and for appointment of counsel
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and will dismiss Plaintiff’s Amended Complaint with prejudice. An
accompanying order will be entered.
August 7, 2014
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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