PRATT v. ANN KLEIN FORENSIC CENTER et al

Filing 79

OPINION filed. Signed by Judge Anne E. Thompson on 8/21/2018. (mps)

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NOTFORPUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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v

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SEP 0:6_ 2018
AT 8:30
WILLIAM T. WALSH
CLERK

LINDA PRATT, as personal representative
on behalf of T ARIK PRATT, an incompetent

person,
Plaintiff,

Civ. No. 15-5779

v.

OPINION

ANN KLEIN FORENSIC CENTER,
ANCORA PSYCHIATRIC HOSPITAL, DR.
ELAINE MARTIN, LINDA ELIAS, DR.
DARIDSZ CHACINSKI, DR. BENITO
MARTY, DR. SAFEER ANSARI, ANN
KLEIN DOCTORS 1-10, ANN KLEIN
STAFF/ADMINISTRATORS 1-10,
ANCORA DOCTORS 1-10, and ANCORA
STAFF/ADMINISTRATORS 1-10,
Defendants.
THOMPSON. U.S.D.J.

INTRODUCTION
This matter is before the Court upon a Motion to Dismiss Plaintiffs Fifth Amended
Complaint (ECF No. 71) filed by Defendants Ann Klein Forensic Center and Ancora Psychiatric
Hospital (the ''State Hospital Defendants"). (ECF No. 73.) Plaintiff Linda Pratt, on behalf of her
son Tarik Pratt, opposes. (ECF No. 75.) The Court has decided the Motion based on the written
submissions of the parties and without oral argument pursuant to Local Civil Rule 78.1 (b ). For
the reasons stated herein, the State Hospital Defendants' Motion is denied.

BACKGROUND
Tarik Pratt suffered a traumatic brain injury over fifteen years ago. He is,Jegally
•··. .-;·-_,

incompetent, and was previously involuntarily civilly committed to the Ann Klein Forensic
1

M

Center ("AKFC'') beginning on June 2, 2011. (Fifth Am. Compl. Count I <J[<J[ 1-4, 8, ECF No.
71.) 1 He was transferred from AKFC to Ancora Psychiatric Hospital ("Ancora") on May 8, 2015.

(Id. Count II <J[ 5.) He was transferred back to AKFC on October 28, 2015. (Id. Count III <J[ 2.) He
now resides with his mother. (Id. Parties ft 1-3.) AKFC and Ancora are both state psychiatric
hospitals. (Id. Parties']['][ 4-5; see also id. Count V '][ 8.)
Plaintiff alleges that, after Mr. Pratt was admitted to AKFC in 2011, Mr. Pratt was
inappropriately labeled as schizophrenic, his medication was changed to correspond to this
misdiagnosis, and he "became highly drugged up, sedated and overmedicated, much to his
detriment." (Id. Count I <J[<J[ 10-16.) On September 16, 2011, Mr. Pratt, in a heavily
overmedicated state, was persuaded by another confined patient to perform a sexual act upon
him. (Id. Count I'][ 17.) Mr. Pratt was then transferred to an intensive care unit by AKFC staff
and placed in seclusion as punishment (id. Count I <J[<J[ 18-19); he was again secluded as
retaliation when his mother, Plaintiff Linda Pratt, began to make inquiries about his treatment at
AKFC (id. Count I'][<][ 27-30, 34). Plaintiff filed a Notice of Tort Claim against AKFC on
December 6, 2011. (Id. Count I <J[ 32.) Plaintiff alleges that instead of investigating the
circumstances around the sexual conduct, and the alleged neglect and abuse of Mr. Pratt which

precipitated it, Defendants retaliated against Mr. Pratt by undertaking harsh measures including
solitary confinement, starvation, denial of medical care, and physical abuse. (See, e.g., id. Count
l«J[<J[ 39-41.)
Mr. Pratt was transferred to Ancora Psychiatric Hospital on May 8, 2015. (Id. Count II

ft 2-5.) At Ancora, Mr. Pratt's medications were again changed, in a manner that was
"inappropriate, unnecessary, not in the patient's best interests and inconsistent with his being in

1

As the Complaint is not.successively numbered, the Court refers to the paragraph numbering of
each separate Count.
2

the least restrictive environment" (id. Count II <J[ 12), and again Mr. Pratt deteriorated due to the
change in his medication (id-. Count II <J[ 14) and suffered harsh and abusive consequences (id.
Count II <J[ 15). Mr. Pratt was overmedicated at Ancora until he was transferred back to AKFC on
October 28, 2015. (Id. Count III 'fJ[ 2-4.)
As the parties are familiar with the procedural history in this matter, the Court reprises
only the relevant events leading up to the instant Motion. Plaintiff filed the original federal
complaint in this action on July 27, 2015. (ECF No. 1.) She filed an Amended Complaint on
August 31, 2015 (ECF No. 3), a Second Amended Complaint on October 6, 2015 (ECF No. 5),
and a Third Amended Complaint on November 1, 2015 (ECF No. 8). On February 18, 2016, the
Court granted the State Hospital Defendants' Motion to Dismiss (ECF No. 28) and dismissed all
claims against the State Hospital Defendants in Plaintiffs Third Amended Complaint on the
basis of Eleventh Amendment state sovereign immunity. (ECF Nos. 36, 37.)
On August 15, 2017, Plaintiff filed a new complaint in the Superior Court of New Jersey,
Law Division, Mercer County, alleging similar claims against similar defendants as appeared in
this existing federal lawsuit on the basis of the same factual predicate. (See Civ. No. 17-6865,
Defs.' Notice of Removal <J[ 5, ECF No. 1; see also id., Ex. A (state complaint dated July 21,
2017).) In that complaint, pursuant to New Jersey Court Rule 4:5-l(b)(2), Plaintiff noted that
"the mater [sic] in controversy is the subject of an action pending in the federal court entitled
Linda Pratt v. Ann Klein Forensic Center et al. under Civil Action No. 3: 15-05779[.]'' (Id., Ex. A
at 25.) The defendants removed to federal court on September 7, 2017, and the case was
docketed at Civ. No. 17-6865, assigned to District Judge Brian R. Martinotti, and referred to
Magistrate Judge Lois H. Goodman.

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On a September 11, 2017 conference call with Judge Goodman for the case at bar (Civ.
No. 15-5779, assigned to Judge Thompson), to which Judge Goodman was also referred, the
parties communicated to the Court that Mr. Pratt could not be deposed and discovery could not
progress. (See ECF Nos. 49-51.) Accordingly, on September 14, 2017 the Court stayed and
administratively terminated this matter. (ECF No. 52.) Further, on September 15, 2017, Judge
Goodman communicated with the parties about dismissing the second federal case (Civ. No. 17- ·
6865) and instead filing that complaint as a Fourth Amended Complaint in the existing federal
action. (ECF No. 53 (email from Judge Goodman's Chambers to the parties); see also ECF No.
54 (Stipulation of Dismissal With Prejudice and Stipulation of Amended Pleading in Civil
Action No. 15-5779 and Consent Order); Civ. No. 17-6865, ECF No. 3 (dismissing second .
federal complaint with prejudice).) On October 2, 2017, Judge Goodman signed a stipulation and
order that the complaint which had been filed in the second federal case (Civ. No. 17-6865)
would be filed in the original federal case (Civ. No. 15-5779) as the Fourth Amended Complaint.
(ECF No. 56.)

In January 2018, after this Court lifted the stay and administrative termination of this case
(see ECF Nos. 57, 59), the Fourth Amended Complaint was formally filed (ECF No. 60).
Plaintiff filed the Fifth Amendment Complaint on May 10, 2018 (ECF No. 71), the governing

complaint in this action (ECF No. 76). As in prior complaints, the Fifth Amended Complaint
alleges multiple constitutional and statutory violations, including, as relevant on this Motion, the
following claims against the State Hospital Defendants: violations of multiple New Jersey
statutes related to civilly committed individuals and developmentally disabled individuals (Count
IV); discrimination claims under Title II of the Americans with Disabilities Act ("ADA") and the
New Jersey Law Against Discrimination ("NJLAD") (Count V); and retaliation claims under

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Title V of the ADA and corollary provisions of the NJLAD (Count

vn. On July 9, 2018, the

State Hospital Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure
. 12(b)(l) based on state sovereign immunity. (ECF No. 73.) Plaintiff received an automatic
extension of the return date (ECF No. 74) and timely filed opposition on July 18, 2018 (ECF No.
75). The State Hospital Defendants did not reply. The Motion is now before the Court.

LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure l 2(b )( 1) challenges the
existence of a federal court's subject matter jurisdiction.2 "When subject matter jurisdiction is
challenged under Rule l 2(b)( 1), the plaintiff must bear the burden of persuasion." Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). A motion to dismiss for
lack of subject matter jurisdiction may attack ( 1) the complaint on its face or (2) the existence of
subject matter jurisdiction in fact, beyond the pleadings. Gould Elecs. Inc. v. United States, 220
F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977)). "The defendant may facially challenge subject matter jurisdiction by

2

The Third Circuit has questioned whether sovereign immunity implicates a federal court's
subject matter jurisdiction. Compare Lombardo v. Pa. Dep't of Pub. Welfare, 540 F.3d 190, 197
n.6 (3d Cir. 2008) (noting similarity to subject matter jurisdiction, as sovereign immunity can be
raised for the first time on appeal, as well as differences from subject matter jurisdiction, as
sovereign immunity can be waived), and In re Hechinger Inv. Co. of Del., Inc., 335 F.3d 243,
249-50 (3d Cir. 2003) (determining to proceed to merits before addressing Eleventh Amendment
issue), with Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n.2 (3d Cir. 1996) ("[T]he
Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter
jurisdiction. Accordingly, the motion may properly be considered a motion to dismiss the
complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(l)." (citing
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984))). See also Garcia v.
Richard Stockton Coll. of N.J., 210 F. Supp. 2d 545, 548 (D.N.J. 2002) ("To the extent, then, that
sovereign immunity would bar supplemental state-law claims against a state defendant, it is
jurisdictional, and the burden of proof remains with the plaintiff."). Whether or not Eleventh
Amendment state sovereign immunity is purely jurisdiction, the Third Circuit cites Rule 12(b)(l)
as the proper procedural vehicle for analysis. See, e.g., Wilson v. N.J. Dep't of Corr., 2017 WL
4618156, at *3 (D.N.J. Oct. 13, 2017) (discussing Third Circuit precedent).

5

arguing that the complaint, on its face, does not allege sufficient grounds to establish subject
matter jurisdiction." D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484, 491 (D.N.J. 2008).
On a facial attack, a court "must consider only the allegations of the complaint and documents
attached thereto, in the light most favorable to the plaintiff." Gould Elecs. Inc., 220 F.3d at 176
(citing Mortensen, 549 F.2d at 891).

ANALYSIS
As a preliminary matter, more than two years ago this Court dismissed all claims against
the State Hospital Defendants under Plaintiffs Third Amended Complaint (ECF No. 8) on the
basis of sovereign immunity. (ECF Nos. 36, 37.) These Defendants now seek to dismiss the
NJLAD claims in Plaintiffs Fifth Amended Complaint under Federal Rule of Civil Procedure
12(b)(l) on the same basis. (See generally ECF No. 73-1.) The Court stands by the reasoning in
its earlier Opinion, but as this action is governed by a new complaint and different procedural
predicate, the Court newly considers whether sovereign immunity applies.
I.

Governing Law on State Sovereign Immunity
The Eleventh Amendment provides, "The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by Citizens or Subjects of any Foreign State." U.S.

Const. amend. XI. The doctrine of Eleventh Amendment sovereign immunity also guards against
suits by citizens against their home State, Haybarger v. Lawrence Cty. Adult Prob. & Parole,
551F.3d193, 197 (3d Cir. 2008) (citing Hans v. Louisiana, 134 U.S. 1 (1890)), and protects
"arms of the state"-state agencies, departments, and institutions where the State itself is the real
party in interest. Alden v. Maine, 527 U.S. 706, 740 (1999); Pennhurst, 465 U.S. at 100; Karns v.

Shanahan, 879 F.3d 504, 512-15 (3d Cir. 2018) (discussing Fitchik v. N.J. Transit Rail

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Operations, 873 F.2d 655, 659 (3d Cir. 1989)). Pursuant to this doctrine, arms of the state may
only be sued when the State has expressly and unequivocally waived its sovereign immunity,

see, e.g., Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670,
675-76 (1999), or when Congress has abrogated the State's sovereign immunity pursuant to its
enforcement powers under section Five of the Fourteenth Amendment, Fitzpatrick v. Bitzer, 427
U.S. 445, 456 (1976); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55-66 (1996).
Both waiver and abrogation abide by a "clear-statement rule ... which the [Supreme] Court has
described in fairly sweeping language ...." Garcia, 210 F. Supp. 2d at 550 (citing Coll. Sav.

Bank, 521 U.S. at 676). Accordingly, the Third Circuit requires "indulg[ing] every reasonable
presumption against waiver." Lombardo, 540 F.3d 190, 198 (3d Cir. 2008) (quoting Aetna Ins.

Co. v. Kennedy, 301 U.S. 389, 393 (1937)).
Under Third Circuit precedent, sovereign immunity is comprised of two components:
immunity from suit and immunity from liability. Lombardo, 540 F.3d at 194. "A State may
waive its immunity from suit by invoking federal court jurisdiction voluntarily." Id. at 196; see

also Royster v. N.J. State Police, 152 A.3d 900, 907-08 (N.J. 2017) (collecting cases and
discussing Lombardo). The Supreme Court has found waiver by removal only when a state
voluntarily removes state law claims filed in state court to federal court. Lapides v. Bd. of

Regents of Univ. Sys. of Georgia, 535 U.S. 613, 619--24 (2002). However, "while voluntary
removal waives a State's immunity from suit in a federal forum, the removing State retains all
defenses it would have enjoyed had the matter been litigated in state court, including immunity
from liability." Lombardo, 540 F.3d at 198. In other words, the State retains "defenses provided
by its own sovereign immunity law." Id. at 200 (emphasis added); id. at 198 n.8; see also Mason

v. Campbell, 2016 WL 8716458, at *4 (E.D. Pa. July 29, 2016) (citing Lombardo, 540 F.3d at

7

198-200); Boone v. Pa. Office of Vocational Rehab., 373 F. Supp. 2d 484, 494 (M.D. Pa. 2005)
("[W]hatever immunity a state enjoyed in state court remains with it after removal to federal
court."). "Lombardo emphasizes that the liability of a sovereign depends on the cause of action."
Wilson, 2017 WL 4618156, at *5 (citing Lombardo, 540 F.3d at 194); see also Lapides, 535 U.S.
at 617; Watters v. Wa. Metro. Area Transit Auth., 295 F.3d 36, 42 n.13 (D.C. Cir. 2002).
The State Hospital Defendants seek dismissal only of Plaintiffs NJLAD claims (Defs.'
Br. at 6, ECF No.

73~ 1),

and therefore Plaintiff only defends the NJLAD claims (Pls.' Br. in

Opp'n at 3, ECF No. 75). Though Defendants' Motion seems to implicate the Court's subject
matter jurisdiction, see supra note 2, the Court has not sua sponte reviewed all of Plaintiffs
claims brought against the State Hospital Defendants because "while a federal court is obligated
to consider whether it possesses subject-matter jurisdiction even if the issue is not raised by the
parties, a federal court need not address the issue of sovereign immunity if neither party brings it
to the attention of the court." In re Hechinger Inv. Co. of Del., Inc., 335 F.3d at 249 (citation
omitted); see also Wis. Dep't. of Corr. v. Schacht, 524 U.S. 381, 389 (1998) ("[T]he Eleventh
Amendment grants the State a legal power to assert a sovereign immunity defense should it
choose to do so. The state can waive the defense. Nor need a court raise the defect on its own.
Unless the State raises the matter, a court can ignore it."). Because the State Hospital Defendants
raised the defense with respect to Plaintiff's NJLAD claims alone, the Court limits its discussion
to Plaintiffs NJLAD claims.
Il.

Application to this Case
As a threshold matter, because the State Hospital Defendants were created by New Jersey

statute, see N.J.S.A. 30:1-7, the state controls and funds them, they lack authorization to sue or
be sued in their own right, and any judgment against them would be paid from the state treasury,

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they are traditionally accorded sovereign immunity as arms of the state. See, e.g., Pratt v. Ann

Klein Forensic Ctr., 2016 WL 660664, at *3 (D.N.J. Feb. 18, 2016) (citing Hobson v. Tremmel,
2013 WL 3930132, at *4 (D.N.J. July 30, 2013); Brown ex rel. Payton v. Ancora Psychiatric

Hosp., 2012 WL 4857570, at *1 (D.N.J. Oct. 11, 2012) (collecting cases)). In addition to being
immune from federal claims where the State has not waived its immunity and Congress has not
abrogated the State's immunity, the State Hospital Defendants are generally also "immune from
suit under [New Jersey's] own laws in federal court. This Court has no jurisdiction to hear
supplemental state-law claims against sovereign entities absent consent by the entity to suit in
federal court." Garcia, 210 F. Supp. 2d at 550.
The question becomes whether the State Hospital Defendants' entitlement to sovereign
immunity has been properly waived or abrogated with respect to Plaintiffs NJLAD claims.
Applying the waiver by removal rule announced in Lapides and clarified in Lombardo, Plaintiff
argues that the State Hospital Defendants unequivocally and voluntarily waived their sovereign
immunity on the NJLAD claims when they removed Plaintiffs 2017 state complaint to federal
court. 3 (See Pis.' Br. in Opp'n at 3.)4
3

Though the Fourth Amended Complaint (ECF No. 60) is the version that Defendants removed,
the waiver effected by removal to federal court would extend to the Fifth Amended Complaint
(ECF No. 71). See Wilson, 2017 WL 4618156, at *5 ("Where, as here, the new counts are state
or federal analogs of counts existing in the original complaint and stem from the same
underlying transaction, the counts are within this Court's jurisdiction. These claims do not
concern a separate controversy, so sovereign immunity to suit in federal court is waived as to
them as well." (citing Druz v. Noto, 2010 WL 2179550, at *5 (D.N.J. May 28, 2010))).
4
The history of this case complicates the waiver by removal analysis. Here, Plaintiff invoked
federal jurisdiction on this case or controversy when she filed her original complaint in 2015 in
federal court. Cf. Wilson, 2017 WL 4618156, at *2 (noting that "immunity at least as to the
original complaint was waived" where original complaint had arrived in federal court by way of
removal, and extending that waiver to a subsequent amended complaint). After all claims against
the State Hospital Defendants were dismissed in February 2016 on the basis of sovereign
immunity, Plaintiff filed the state court lawsuit, alleging new claims against the State Hospital
Defendants under Titles II and V of the ADA and corollary protections of the NJLAD. Plaintiff
acknowledged in the state court complaint that the matter in controversy was the subject of an
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Applying Lombardo, the Court finds that removal in this case did waive the State
Hospital Defendants' Eleventh Amendment sovereign immunity to suit; however, they retain any
available state sovereign immunity affirmative defense under New Jersey law that would provide
immunity from liability. "[T]he NJLAD clearly identifies the State as a potential defendant ...
and authorizes private suits 'in Superior Court[.]"' Garcia, 210 F. Supp. 2d at 550 (citing
N.J.S.A. 10:5-5(e), 10:5-13). Accordingly, the State has unequivocally waived its sovereign
immunity in state courts for claims arising under the NJLAD. Given that the NJLAD claims
could have been pursued in state court and were properly filed there despite the existing federal
action on the same case or controversy,5 the Court denies Defendants' Motion and determines
that the State Hospital Defendants consented to suit in federal court on the NJLAD claims. 6
Accordingly, the NJLAD claims in Counts V and VI survive this Rule 12(b)(l) motion.

CONCLUSION
For the reasons discussed above, the State Hospital Defendants' Motion to Dismiss is
denied. An appropriate order will follow.
Date:

~&::t'~t?-

action already pending in federal court. Further, after Defendants removed that complaint to
federal court, the parties were directed by Judge Goodman to seek dismissal of that second
federal action and file the state court complaint as an amended complaint in this existing case.
Finally, Defendants have moved to dismiss claims in Plaintiffs Fifth Amended Complaint, filed
only in the existing federal case. As such, this is not a typical case where removal evidences an
express, voluntary, and unequivocal intent by these Defendants to invoke federal jurisdiction on
these claims. See Lombardo, 540 F.3d at 197.
5
Though this kind of fracturing is und~sirable for judicial economy, it is accepted by the U.S.
Supreme Court. See Garcia, 210 F. Supp. 2d at 550 (citing Pennhurst, 465 U.S. at 121-22).
6 This is an unusual result, as NJLAD claims are usually dismissed in federal courts under Rule
12(b)(l) pursuant to Eleventh Amendment state sovereign immunity. Garcia, 210 F. Supp. 2d at
550-51; see also, e.g., Sweet-Springs v. Dep't of Children & Families, 2013 WL 3043644, at *6
(D.N.J. June 17, 2013); Fidanzato v. Somerset, Hunterdon, & Warren Ctys. Vicinage 13, 2012
WL 4508008, at *7 (D.N.J. Sept. 28, 2012). Nevertheless, Defendants' specific litigation conduct
of removing Plaintiffs state court action to federal court and consenting to consolidation with
this existing federal action requires this result.
10