WILLIAM W. CALDWELL, District Judge.
In this civil action, proceeding by way of a second-amended complaint, Plaintiff raises federal and state-law claims related to the medical care she received at two different Pennsylvania hospitals in 2013. At present, the Court is faced with
Ultimately, the Court agrees with Defendants and concludes that Plaintiff does not (1) sufficiently plead federal claims against HMC, Mt. Nittany, Messaris, and Singh; (2) sufficiently plead a claim for attorney's fees; or (3) show good cause for not serving Kothul. Accordingly, each dismissal motion will be granted.
On October 14, 2015, Plaintiff initiated this lawsuit by filing a civil complaint. (Doc. 1). In the complaint, Plaintiff named the following Defendants: (1) Milton S. Hershey Medical Center ("HMC"), "a hospital affiliated with the University of Pennsylvania" that also had a contract with the United States Department of Health and Human Services ("DHHS") to provide services to Medicare patients and received federal funds; (2) Evangelos Massaris ("Massaris"), "a Surgeon employed by [HMC];" (3) Kothul, the Chief of Colorectal Surgery at HMC; (4) Mt. Nittany Medical Center ("Mt. Nittany"), a hospital organized under Pennsylvania's laws that also had a contract with DHHS to provide services to Medicare patients and received federal funds; and (5) Madhavi Singh ("Singh"), "a Physician employed by Mt. Nittany." (Id. at ¶¶ 6-10; see Doc. 40 at ¶¶ 6-10).
In the second-amended complaint, Plaintiff sues the same Defendants and alleges the following:
Plaintiff has suffered from Crohn's Disease, an inflammatory bowel disease that causes inflammation of the digestive tract and can result in severe diarrhea, pain, fatigue, and weight loss.
On October 14, 2013, at HMC, Messaris performed an ileostomy on Plaintiff. (Id. at ¶¶ 14, 15). In other words, Messaris surgically created an opening into Plaintiff's ileum.
The ileostomy did not turn out as Plaintiff expected and was contrary to Messaris's assertions. (See id. at ¶ 16). Indeed, the procedure resulted in a "very high output ileostomy" that was health-threatening. (See id. at ¶¶ 16, 19). Moreover, "[t]here is a fifty to eighty percent failure rate of perianal repairs in patients with Crohn's Disease." (Id. at ¶ 17). "Had Plaintiff been informed of th[is] failure rate . . . and properly informed of the risks, benefits and alternatives," she would not have consented to the procedure. (Id. at ¶ 18). Also, Messaris did not monitor her ostomy output. (Id. at ¶ 20). Messaris, though, had informed Plaintiff before performing the ileostomy that he knew "very little" about Crohn's Disease. (Id. at ¶¶ 14, 15).
Three days after Messaris performed the ileostomy, he attempted to discharge Plaintiff from HMC while she was "still ill." (Id. at ¶ 22). Plaintiff, however, appealed the attempted discharge and obtained a one-day extension of her stay at HMC. (Id. at ¶ 23). As such, Plaintiff was not discharged from HMC until October 18
On October 20, 2013, Plaintiff experienced leg cramps. Plaintiff therefore called HMC. After Plaintiff called, a resident-physician consulted with Messaris. The resident then called Plaintiff back, instructing her to drink a quart of Gatorade. (Id. at ¶ 25).
The next day, October 21
For the next two days, from October 21
The next day, October 24
Two days later, on October 26, 2013, the seals on Plaintiff's ostomy bag failed, which she describes as feeling like "pure torture." (Id. at ¶¶ 40, 43). In addition, because she had passed out while going to the bathroom three days earlier, she was not allowed out of bed without a hospital staff member being present. (Id. at ¶ 41). As such, on at least one occasion when the seals on her ostomy bag failed, she was "left in a pool of bile until the staff could help her." (Id. at ¶ 40). Plaintiff also experienced "terrible pain" that day and asked to speak with Singh about pain management. (Id.). When Singh met with Plaintiff in the afternoon, they did not discuss the issue of pain management. (Id.). Consequently, Plaintiff continued to experience "excruciating pain" and she again developed "vice-like rib pain." (Id. at ¶¶ 41, 42).
Thereafter, on October 27
At some point, HMC "[became] informed of Plaintiff's condition" and "immediately reserved a [hospital] bed for her." (Id. at ¶ 44). Plaintiff was then transported to HMC by ambulance. (Id.). On the face of the second-amended complaint, it is unclear when all of this occurred. (But see, Doc. 49 at 16).
On October 30th, at HMC, Plaintiff was informed that she was "medically ready" for discharge and could be discharged to a "non-skilled rehabilitation facility." (Doc. 40 at ¶ 45). That morning, Plaintiff experienced "severely painful leg cramps as a result of renal failure and hydration." (Id. at ¶ 46). The "staff" at HMC "was aware of" her condition after she complained that she was "too weak" to take care of herself. (Id. at ¶ 47).
Eventually, at Plaintiff's request, HMC found a rehabilitation facility for her at Manor Care, in Carlisle, Pennsylvania. (Id. at ¶ 50). And Plaintiff was transferred to that facility. (Id.). HMC, though, did not send Plaintiff's prescriptions or medications to Manor Care. (Id. at ¶ 51). Thus, Plaintiff did not receive any medication until October 31
Eventually, in the following month, Plaintiff left Manor Care. (Id. at ¶ 53). Plaintiff's health did not improve until July 2014 when "the ostomy was reversed in a surgery performed at Pinnacle Hospital . . . ." (Id. at ¶ 54).
Based on these allegations, Plaintiff raises a state-created-danger claim against the HMC Defendants, under 42 U.S.C. § 1983; a claim against HMC under Title II of the Americans with Disabilities Act ("ADA"); a claim against Mt. Nittany under Title III of the ADA; a claim against HMC and Mt. Nittany under § 504 of the Rehabilitation Act ("RA"); a claim against HMC, under the Emergency Medical Treatment and Active Labor Act ("EMTALA"); a state-law medical-malpractice claim against all Defendants; and a state-law claim against Messaris and Kothul for their alleged failure to obtain her informed consent before proceeding with the ileostomy. For remedies, Plaintiff seeks compensatory damages against all Defendants; injunctive relief against Mt. Nittany; and attorney's fees and costs. (Doc. 40 at p. 13).
Since the filing of Plaintiff's second-amended complaint, two motions have been filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the basis that Plaintiff fails to state claims for relief. (Docs. 42 & 43). The first of these motions was filed by Massaris, Singh, and HMC. (Doc. 42). The second of these motions was filed by Mt. Nittany. (Doc. 43).
In addition, a third motion has been filed under Rule 4(m), seeking Kothul's dismissal for Plaintiff's failure to serve him. (Doc. 45).
Each motions has been briefed and is ripe for review.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to file a motion to dismiss, contesting whether a claimant has stated a cognizable claim for relief. See Fed.R.Civ.P. 12(b)(6). In resolving a motion filed under this Rule,
Korth v. Hoover, No. 1:15-CV-2422, ___ F.Supp.3d ___, 2016 WL 3088147, at *1 (M.D. Pa. June 2, 2016)(Caldwell, J.); see Seldomridge v. Penn State Hershey Medical Center, No. 13-2897, 2014 WL 2619371, at *3 (M.D. Pa. June 12, 2014)(Caldwell, J.).
Rule 4 (m), in pertinent part, provides the following:
Fed.R.Civ.P. 4(m).
Under this Rule, after a motion has been filed or on its own after notice to a plaintiff, the district court shall first determine whether a defendant has been served within the time established in Rule 4(m). If service was not made within that time frame, "[t]he district court [shall] determine[] whether good cause exists for a plaintiff's failure to [make] timely service. If good cause exists, [an] extension must be granted." Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997)(citations omitted).
The meaning of "good cause" under Rule 4(m) "has been equated with the concept of `excusable neglect' under Rule 6(b)(2), and `requires a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.'" McLaud v. Industrial Resources, Inc., No. 3:14-CV-737, 2015 WL 737569, at *3 (M.D. Pa. Feb. 20, 2015)(Caputo, J.) (quoting MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995), cert. denied, 519 U.S. 815 (1996)). "`[C]ourts have considered such factors as (1) reasonableness of plaintiff's efforts to serve, (2) prejudice to the defendant by lack of timely service, and (3) whether plaintiff moved for an enlargement of time to serve.'" Id. at *3 (quoting McDonald v. SEIU Healthcare Pennsylvania, No. 13-2555, 2014 WL 4672493, at *6 (M.D. Pa. Sept. 18, 2014)(Conner, C.J.)(quotations and internal alterations omitted), in turn citing MCI Telecomms., 741 F.3d at 1097-98). "Indeed, the `primary focus' of the good cause inquiry `is on the plaintiff's reasons for not complying with the time limit in the first place.'" Id. (quoting Boley, 123 F.3d at 758, in turn quoting MCI Telecomms., 71 F.3d at 1097).
"If good cause does not exist, the district court must consider whether to grant a discretionary extension of time." Boley, 123 F.3d at 758 (citing MCI Telecomm. Corp., 71 F.3d at 1098). In embarking on that consideration,
McLaud, supra, at *3 (M.D. Pa. Feb. 20, 2015)(Caputo, J.)(quoting Chiang v. U.S. Small Bus. Admin., 331 F. App'x 113, 116 (3d Cir. 2009)(citations omitted). Ultimately, if no good cause exists, and a discretionary extension of time will not be granted, a district court shall dismiss the pending action without prejudice against the defendant that was not served within the established time frame.
Lastly, regarding Rule 4(m), the filing of an amended complaint does not restart the 120-day period as to defendants that are not newly added to the action. McLaud, supra, at *3; see Nayak v. CGA Law Firm, No. 1:13-CV-2533, 2014 WL 772604, at *2 n.4 (M.D. Pa. Feb. 25, 2014)(Caldwell, J.)(citing Bolden v. City of Topeka, Kansas, 441 F.3d 1129, 1148 (10th Cir. 2006)).
Plaintiff raises a state-created-danger claim against Messaris and HMC. The claim relates to the ileostomy performed on Plaintiff, in October 2013, and is brought under 42 U.S.C. § 1983. The Court, however, agrees with Messaris and HMC that Plaintiff does not sufficiently plead a § 1983 claim, in that she does not sufficiently allege that these Defendants acted under color of state law.
"To successfully [plead] a § 1983 claim, a plaintiff must allege: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct complained of deprived the plaintiff of rights, privileges, or immunities secured by the laws or the Constitution of the United States." Bookwalter v. Keen, No. 1:15-CV-1291, 2015 WL 6157191, at *3 (M.D. Pa. Oct. 19, 2015) Caldwell, J.) (citing Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012); Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014)); see United States v. Price, 383 U.S. 787, 794 n. 7 (1966)("In cases under § 1983, `under color' of law has consistently been treated as the same thing as the `state action' required under the Fourteenth Amendment."). "Thus, it is essential to any civil rights claim brought under § 1983 that the plaintiff allege . . . that the defendant was acting under color of law when that defendant allegedly violated the plaintiff's rights." Walsh v. Pascal, No. 3:16-CV-1440, 2016 WL 3982468, at *3 (M.D. Pa. July 25, 2016)(Kosik, J.)(citing Boykin v. Bloomsburg University of Pennsylvania, 893 F.Supp. 409, 416 (M.D. Pa. 1995)(Muir, J.), aff'd, 92 F.3d 122 (3d Cir. 1996)).
In the second-amended complaint, Plaintiff alleges that HMC was a "hospital affiliated with the University of Pennsylvania," in receipt of federal funds. (See Doc. 40 at ¶ 6). These factual allegations do not sufficiently set forth that HMC acted under color of state law.
Indeed, the allegations do not plausibly suggest that HMC was a state, or public, hospital. And absent allegations showing or suggesting that HMC was a public hospital, Plaintiff must otherwise provide sufficient, well-pleaded allegations to show or suggest that the hospital exercised powers traditionally within the exclusive prerogative of the state; that the hospital acted in concert with state officials; or that the state so far insinuated itself into a position of interdependence with HMC such that the hospital must be recognized as a joint participant in the alleged misconduct. See Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). But Plaintiff has not provided allegations of the kind.
To that end, HMC's mere "affiliation" with the University of Pennsylvania
As well, Plaintiff's allegations that HMC had a contract with DHHS to treat Medicare patients and received federal funding does not plausibly suggest that HMC was a public hospital or that state action could be attributed to it. See Long v. Administration of Montgomery Hosp. of Norristown, PA, No. CIV. A. 2000-CV-1056, 2000 WL 1593980, at *2 (E.D. Pa. Oct. 25, 2000)("The provision of hospital services is not a function reserved exclusively to the state" and "[t]he mere fact that Montgomery Hospital has a contract with the United States to provide medical services in exchange for payments from Medicare does not [otherwise] transform the hospital into a state actor."); see also, Blum v. Yaretsky, 457 U.S. 991, 1011 (1982)(finding no state action despite state subsidization of nursing homes and state payment of the medical expense of 90% of the nursing homes' patients); accord Osei v. La Salle University, 493 F. App'x 292, 295 (3d Cir. 2012)("[Government] contributions to otherwise private entities, no matter how great those contributions may be, will not of themselves transform a private actor into a state actor.")(quoting Krynicky v. Univ. of Pittsburgh, 742 F.2d 94, 97 (3d Cir. 1984), cert. denied, 471 U.S. 1015 (1985)).
Plaintiff does not sufficiently allege that HMC acted under color of state law.
In a similar vein, Plaintiff does not sufficiently allege that Messaris acted under color of state law. Plaintiff attempts to allege as much by alleging that Messaris was employed by HMC. (Doc. 40 at ¶ 7). But given the Court's conclusion with respect to HMC, supra, Messaris's employment at the hospital means he did not act under color of state law. There are also no other allegations in the second-amended complaint to plausibly suggest that state action could be attributed to him. Cf. Billups v. Penn State Milton S. Hershey Med. Ctr., 910 F.Supp.2d 745, 757 (M.D. Pa. 2012)(Kane, J.)(holding that physicians who participate in child-abuse investigations qualify as state actors under Kach's third test).
Accordingly, the Court finds that Plaintiff does not sufficiently allege that HMC and Messaris acted under color of state law. As to HMC and Messaris, Plaintiff's § 1983 claim will be dismissed.
Next, Plaintiff claims that HMC was in violation of Title II of the ADA and § 504 of the RA. According to Plaintiff, "[at HMC] . . . [she was] deprived of the receipt of medical services which would have been equal to that afforded to a patient receiving services who was not suffering from her disabilities." (See Doc. 40 at ¶¶ 57, 64). Furthermore, Plaintiff claims that "[she was] deprived of reasonable modifications of their programs and services which would have provided her with equal treatment and ability to participate in the receipt of medical services adapted to her disabilities by providing services by physicians and surgeons qualified to treat Crohn's patients with diabetes . . . ." (See id. at ¶¶ 58, 65). As well, Plaintiff claims that she was so "deprived" "on the basis of her handicaps." (See id. at ¶ 65).
Title II of the ADA "prohibits discrimination based upon a disability by state and local government." Starego v. N.J. State Interscholastic Athletic Ass'n, 970 F.Supp.2d 303, 307-08 (D.N.J. 2013). Title II provides in pertinent part that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, § 504 of the RA states that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a). The substantive standards for determining liability under the RA are equivalent to those standards for determining liability under the ADA, McDonald v. Dep't of Pub. Welfare, 62 F.3d 92, 94 (3d Cir. 1995), and claims under both provisions are interpreted consistently. Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002).
To determine whether a violation of either statute has been sufficiently alleged,
Kongtcheu v. Constable, No. 12-6872, 2016 WL 270075, at *5 (D.N.J. Jan. 20, 2016)(footnote omitted).
Here, the Court, like HMC, struggles to see how Plaintiff has pleaded a plausible, prima facie claim of disability discrimination. At best, Plaintiff conclusively alleges that she was deprived of programs, treatments, and services on the basis of her disabilities. But she does not provide sufficient, well-pleaded allegations suggesting that was the actual case. On the face of the second-amended complaint, it is also unclear what exactly Plaintiff believes she was deprived of. To the extent her belief is merely that she was entitled to a higher-level, or quality, of care, or that the care she actually did receive was inadequate, or otherwise questions her medical treatment, the claim sounds in medical malpractice or negligence, not the ADA or RA.
Plaintiff's ADA and RA claims against HMC will be dismissed.
Plaintiff also raises an EMTALA claim against HMC. According to Plaintiff, "HMC violated [EMTALA] by discharging [her] when she had been admitted for emergency treatment and[] transferring her to [Manor Care], when her condition was not stabilized." (Doc. 40 at ¶ 68). Regarding the transfer, in particular, Plaintiff complains that she was not transferred to Manor Care with her prescribed medications. (Doc. 40 at ¶¶ 51-52, 68).
In pertinent part, EMTALA provides:
See 42 U.S.C. § 1395dd(a)-(c)). Summarized, "EMTALA requires hospitals to give certain types of medical care to individuals presented for emergency treatment: (a) appropriate medical screening, (b) stabilization of known emergency medical conditions and labor, and (c) restrictions on transfer of unstabilized individuals to outside hospital facilities." Torretti v. Main Line Hospitals, Inc., 580 F.3d 168, 172-73 (3d Cir. 2009)(citations omitted).
"Congress enacted EMTALA in the mid-1980s based on concerns that, due to economic constraints, hospitals either were refusing to treat certain emergency room patients or transferring them to other institutions." Id. at 173 (citations omitted). "[T]his practice is known as `patient dumping.'" Id. (citing Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 856 (4th Cir. 1994)). "Although Congress was concerned that the indigent and uninsured tended to be the primary victims of patient dumping, EMTALA is not limited to these individuals." Id. (citing 42 U.S.C. § 1395dd; Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 252 (1999)). Furthermore, only hospitals that voluntarily participate in the Medicare or Medicaid programs and have effective provider agreements must comply with EMTALA. Id. at 173 n. 8.
Under EMTALA, civil fines and private causes of action are authorized for individuals who suffer personal harm as a direct result of a hospital's violation of the statute. Id. (citing 42 U.S.C. § 1395dd(d)); see Roberts, 525 U.S. at 251. "While an EMTALA action usually will be brought in conjunction with a state statutory claim or common-law medical malpractice or negligence action arising out of the same events, [EMTALA] does not create a federal cause of action for malpractice." Torretti, 580 F.3d at 173-74 (citations omitted). Thus, "[l]iability is determined independently of whether any deficiencies in the screening or treatment provided by [a] hospital may be actionable as negligence or malpractice . . . as the statute was aimed at disparate patient treatment." Id. at 174.
Plaintiff raises what is known as a "stabilization" claim. See id. at 178 ("The Torretti's alleged a `stabilization' claim — that defendants violated EMTALA because they did not stabilize her emergency condition and inappropriately transferred her."). "Under this theory, EMTALA requires [Plaintiff to allege that] (1) [she] had `an emergency medical condition; (2) [HMC] actually knew of that condition; [and] (3) [she] was not stabilized before being transferred [to Manor Care in accordance with § 1395dd(c)(2)].'" See id. (quoting Baber v. Hosp. Corp. of Am., 977 F.2d 872, 883 (4
EMTALA defines "emergency medical condition" to mean:
42 U.S.C. § 1395dd(e)(1).
"`Regarding the second requirement, [the Third Circuit] has stated that actual knowledge of the emergency medical condition on the part of the hospital is required for a plaintiff to succeed on an EMTALA claim. . . .' Torretti, 580 F.3d at 178. The question of whether a hospital should have known about an emergency medical condition is irrelevant for the purposes of EMTALA." Delibertis v. Pottstown Hospital Company, LLC, No. 14-6971, 2016 WL 245310, at *4 (E.D. Pa. Jan. 21, 2016).
Furthermore,
42 U.S.C. § 1395dd(e)(3).
In analyzing Plaintiff's EMTALA claim, she does not deny that she was admitted to HMC upon her arrival at the hospital. (Doc. 40 at ¶ 44, 68; Doc. 49 at 16). This is a crucial point. The Court agrees with the thorough and persuasive interpretation of EMTALA's stabilization requirement set forth in Mazurkiewicz v. Doylestown Hosp., 305 F.Supp.2d 437 (E.D. Pa. 2004). In that case, a sister court adopted the reasoning of the Fourth
In its brief in support, HMC raises this defense. (Doc. 44 at 27-28). And Plaintiff does not appear to respond to it. (See Doc. 49 at 16-17). Moreover, based on what is pleaded in the second-amended complaint, Plaintiff does not allege that her admission to HMC was a subterfuge to avoid EMTALA obligations. Cf., e.g., Morgan v. North Mississippi Medical Center, 403 F.Supp.2d 1115, 1129 (S.D. Ala. 2005)(finding that plaintiff successfully pleaded a subterfuge theory of liability). Nor does the Court necessarily infer such a contention from her allegations even though she was allegedly admitted and discharged on the same date.
Based on the foregoing, the Court concludes that HMC had no duty to stabilize whatever emergency medical condition Plaintiff may have had at the time of her discharge to Manor Care. And since HMC had no duty to stabilize her in accordance with EMTALA, it reasonably follows from the statutory language that HMC had no duty to transfer Plaintiff in accordance with EMTALA's requirements. Plaintiff's EMTALA claim against HMC will be dismissed.
HMC, Messaris, and Singh move for the dismissal of Plaintiff's request for attorney's fees. (Doc. 44 at 28-29).
Here, the Court has determined that Plaintiff's claims under § 1983, the ADA, the RA, and EMTALA are subject to dismissal. To the extent attorney's fees may be awarded under those statutes, Plaintiff has no present recourse. In addition, the Court is unaware of any statutory authority or established exceptions allowing for attorney's fees for the state-law claims raised against these Defendants, in the second-amended complaint. See also, Sayler v. Skutches, 40 A.3d 135, 141 (Pa. Super. Ct.)(concluding that the MCARE Act does not increase a litigant's damages by an additional award of attorney's fees), appeal denied, 54 A.3d 349 (Table) (Pa. 2012); Bethlehem Area Sch. Dist. v. Zhou, 09-3493, 2012 WL 930998, at *4 (E.D. Pa. Mar. 20, 2012)("`Pennsylvania courts have routinely applied the American Rule to deny recovery of attorneys' fees in . . . negligence cases.'")(quoting Lewis v. Delp Family Powder Coatings, Inc., 08-1365, 2011 WL 1230207, at *4 (W.D. Pa. Mar. 31, 2011). Nor is the Court aware of anything to remotely suggest that a contract exists providing for the award of attorney's fees for the prevailing party.
Plaintiff does not make out a plausible claim for attorney's fees. Accordingly, her request for attorney's fees, as to HMC, Messaris, and Singh, will be dismissed.
Plaintiff does not sufficiently plead federal claims against HMC and Messaris; consequently, as to those Defendants, Plaintiff's claims under § 1983, the ADA, the RA, and EMTALA will be dismissed. Additionally, with respect to HMC, Messaris, and Singh, Plaintiff does not sufficiently plead a claim for attorney's fees. Overall, the motion to dismiss filed by HMC, Messaris, and Singh will be granted.
Plaintiff raises claims against Mt. Nittany under Title III of the ADA and § 504 of the RA. Mt. Nittany moves for dismissal on the ground that, among other things, Plaintiff does not sufficiently allege she was discriminated against on the basis of her alleged disabilities. (Doc. 48 at 6, 7).
The basis of Plaintiff's disability-discrimination claims against Mt. Nittany is the same as those raised against HMC, supra. (See Doc. 40 at ¶¶ 57-65). To make out a claim under Title III or the RA, a plaintiff must allege, among other things, that she was discriminated against on the basis of a disability. See Hollinger, supra, at *9 (quoting Haas v. Wyoming Valley Health Care Sys., 465 F.Supp.2d 429, 433 (M.D. Pa. 2006)(Caputo, J.)(setting forth the elements of a Title III claim)); see also, Emerson, supra, 296 F.3d at 189. Plaintiff, though, does not sufficiently allege that she was deprived or denied of any care, service, or treatment at Mt. Nittany on the basis of any alleged disabilities. Also, again, to the extent Plaintiff's general belief is that she was entitled to a higher-level, or quality, of care, or that the care she actually did receive was inadequate, or otherwise questions her medical treatment, the claim sounds in medical malpractice or negligence, not the ADA or RA. Plaintiff's ADA and RA claim against Mt. Nittany will be dismissed.
Mt. Nittany moves for the dismissal of Plaintiff's request for attorney's fees. (Doc. 48 at 8).
Plaintiff does not sufficiently allege a Title III ADA or § 504 RA claim against Mt. Nittany; consequently, those claims will be dismissed. Additionally, with respect to Mt. Nittany, Plaintiff does not plead a plausible claim for attorney's fees. That claim will also be dismissed. Finally, overall, the motion to dismiss filed by Mt. Nittany will be granted.
In cases concerning alleged civil-rights violations, the Third Circuit requires District Courts to extend plaintiffs an opportunity to amend — "irrespective of whether it was requested and irrespective of whether the plaintiff was counseled" — before dismissing a complaint. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007)(citing District Council 47 v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986)). However, "[a]mong 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 Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997)(citations omitted).
Here, leave to amend will be denied. The Court has already provided Plaintiff with leave to amend. Not to forget, she had already filed an amended complaint as of right. Based on the contents of Plaintiff's filings, including her multiple pleadings, it would be futile to allow Plaintiff to file what would amount to her third-amended complaint. The Court is further concerned that Defendants would be prejudiced by likely having to litigate a third round of Rule 12(b) motions due to no fault of their own. Leave to amend will be denied.
Ten months have passed since Plaintiff initiated this lawsuit by filing a civil complaint. (See Doc. 1). Despite claiming, without evidence, that she mailed a waiver-of-service form to Kothul, at no point has Plaintiff received executed forms from him. Moreover, Plaintiff has not served Kothul. Nor has she shown good cause in defending against this motion. To that end, Plaintiff argues that she was unaware that Kothul had not waived service. (Doc. 50). According to Plaintiff, this resulted from the fact that two law firms entered their appearances and, somehow, that confused her. (See id.). The fact of the matter, however, is that only five defendants are named in this case. With the assistance of counsel, it should not be so difficult to determine which Defendants have executed waiver-of-service forms, been served, or had counsel enter an appearance. It is also disingenuous for Plaintiff to suggest that she was unaware that Kothul had not executed a waiver-of-service form until this particular dismissal motion was filed. Nearly four months ago, this Court noted that it did not appear Kothul had waived service or been served. (Doc. 36 at 2 n. 2). And, since then, Plaintiff has not filed a motion seeking an extension of time to serve him or any other explanation.
In short, the Court does not find good cause for Plaintiff's failure to serve Kothul within the time established by the Federal Rules of Civil Procedure. Also, the Court will not exercise its discretion to allow Plaintiff more time to attempt to serve Kothul. The Rule 4(m) motion will be granted and Kothul will be dismissed from the lawsuit without prejudice.
Plaintiff does not sufficiently plead federal claims against HMC, Mt. Nittany, Messaris, and Singh. Based on the circumstances, moreover, Plaintiff does not plead a plausible claim for attorney's fees. Also, Plaintiff has not served Defendant Kothul, the time for serving him has lapsed, and Plaintiff does not show good cause for her failure to timely effectuate service. Furthermore, the Court declines to exercise its discretion to give Plaintiff additional time to serve Kothul. Accordingly, the Court will grant the motion (Doc. 42) to dismiss filed by HMC, Messaris, and Singh; the motion (Doc. 43) to dismiss by Mt. Nittany; and the motion (Doc. 45) to dismiss Kothul as a Defendant for untimely service. An appropriate Order will be issued.