DAMON JONES, Plaintiff, v. LORI LAPINA, Physician Assistant; STANLEY FALOR, Physician; and JOHN or JANE DOE, Medical Records Supervisor, Defendants.
Civil Action No. 06 - 1209
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
October 18, 2010
Judge Terrence F. McVerry; Magistrate Judge Lisa Pupo Lenihan
I. RECOMMENDATION
It is respectfully recommended that Defendants’ Motion to Dismiss (ECF No. 20) be granted and that Plaintiff’s Motion to Substitute an Executor or Administrator for Defendant Stanley Falor, M.D., Because of His Death (ECF No. 65) be denied as moot .
II. REPORT
Plaintiff, Damon Jones, an inmate currently confined at the State Correctional Institution at Graterford, Pennsylvania, filed this lawsuit under the Civil Rights Act of 1871,
On February 26, 2008, Defendants filed a Motion to Dismiss the Complaint for failure to state a claim upon which relief may be granted based on two grounds (ECF No. 20). First, they asserted that they have absolute immunity because they functioned as witnesses. Second, they asserted that the complaint fails to contain any assertions of physical injury as a result of their actions as required by
Pursuant to the Federal Rules of Civil Procedure Plaintiff was to respond to this Motion within 30 days of filing. No response has been received. Plaintiff is ordered to file a response no later than 5/5/08. If you fail to comply with this Order, the motion will be decided without the benefit of Plaintiff‘s response.
After Plaintiff failed to file any response to Defendants’ Motion, this Court filed a Report and Recommendation on May 29, 2008 (ECF No. 22) recommending to grant Defendants’ Motion to Dismiss on the basis that Defendants are immune from liability in this action. The Report was sent to the Plaintiff and he was advised that he had until June 16, 2008 to file written objections. No objections were filed. On June 25, 2008, the District Court granted Defendants’ Motion to Dismiss (ECF No. 24).
On July 2, 2008, Plaintiff filed a Motion to Alter or Amend the Judgment (ECF No. 25) claiming that he had not received a copy of the defendants’ Motion to Dismiss or the Report and Recommendation. On July 8, 2008, the District Court entered a text order denying Plaintiff’s Motion. On that same date, however, the District Court entered another text order granting Plaintiff the opportunity to respond to Defendants’ Motion by July 28, 2008. On July 23, 2008, Plaintiff filed
On August 7, 2008, Plaintiff appealed the District Court’s July 8, 2008 Order denying his Motion to Alter or Amend the Judgment, which was docketed in that court at number 08-3452. On September 9, 2009, the District Court denied Plaintiff’s Renewed Motion to Alter or Amend the Judgment on the basis that it lacked jurisdiction to consider the motion because Plaintiff had filed an appeal to the United States Court of Appeals. On September 12, 2008, Plaintiff appealed the District Court‘s August 9, 2008 Order denying his Renewed Motion to Alter or Amend the Judgment, which was docked in that court at number 08-3452.
On October 8, 2009, the Court of Appeals for the Third Circuit issued the following order regarding Plaintiff’s appeals.
The foregoing has been considered by the Court and is ruled upon as follows. We note first that although the District Court’s first July 8, 2008 order denied Jones’ first motion to alter or amend, its second July 8, 2008 order gave Jones an opportunity to respond to the Defendants-Appellees’ motion to dismiss and the Magistrate Judge’s Report and Recommendation. As that is essentially the relief Jones sought in his first motion to alter or amend, Jones’ appeal from the first order is moot. Moreover, the order effectively reopened the case and, as a result, there was no longer a final, appealable order in the case. Accordingly, we dismiss the appeal docketed at 08-3452.
With regard to the appeal docketed at 08-3893, this matter is remanded to the District Court to consider the Defendants-Appellees’ motion to dismiss in light of Jones’ response. The District Court was incorrect in its conclusion that it lacked jurisdiction because of Jones’ first notice of appeal. Jones’ motion to quash Appellees’ brief is denied.
ECF No. 57 (internal citations omitted).
On November 13, 2009, Plaintiff filed a Renewed Response to Defendants’ Motion to Dismiss (ECF No. 51). Based on averments contained in Plaintiff’s Renewed Response, Defendants requested leave of Court to file a brief memorandum of law in reply (ECF No. 56). On February 11,
The defense of claim preclusion (also known as res judicata) typically is raised as an affirmative defense. General Elec. Co. v. Deutz AG , 270 F.3d 144, 158 (3d Cir. 2001). In fact, Rule 8(c) of the Federal Rules of Civil Procedure states: “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including . . . res judicata . . .”
Here, Defendants have a pending motion to dismiss and have not yet filed an answer to the complaint with their affirmative defenses. Thus, it does not appear that any waiver has occurred. Moreover, it does not appear that Plaintiff is unduly prejudiced by Defendants’ assertion of this defense. He successfully sought relitigation of Defendants’ Motion to Dismiss; he can hardly complain that Defendants successfully amended their motion to dismiss as he has been allowed ample opportunity to respond to their amended motion and has filed two responses thereto. These circumstances simply do not support Plaintiff’s waiver argument. Thus, the Court will review this issue on the merits.
A. Standard of Review – Motion to Dismiss
Defendants have filed a Motion to Dismiss pursuant to
Additionally, “a civil rights claim ‘must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under
Courts generally consider the allegations of the complaint, attached exhibits, and matters of public record in deciding motions to dismiss. Pension Benefit Guar. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in the complaint also may be considered if the plaintiff’s claims are based upon those documents. Id. (citations omitted). Moreover, a district court may consider indisputably authentic documents without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gillis 372 F.3d 218, 223 (3d Cir.2004); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
In addition, a court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). In a
Finally, the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). For the reasons set forth herein, it would be futile to allow Plaintiff the opportunity to file an
B. Claim Preclusion
Courts require “that a plaintiff present in one suit all the claims for relief that he may have arising out of he same transaction or occurrence.” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). A plaintiff is barred from raising additional claims in a subsequent action under the doctrine of “claim preclusion” (or res judicata). Huck v. Dawson, 106 F.3d 45, 48 (3d Cir. 1997) (“it is well established that res judicata precludes a party both from relitigating matters already litigated and decided and from litigating matters that have never been litigated, yet should have been advanced in an earlier suit“). Res judicata is designed to avoid piecemeal litigation of claims arising from the same events. General Elec. Co. v. Deutz AG, 270 F.3d 144, 158 and n.5 (3d Cir. 2001).
Federal law of claim preclusion requires a defendant to demonstrate the following:
- a final judgment on the merits in a prior suit;
- the same parties or their privies; and
- a subsequent suit based on the same cause of action.
Lubrizol Corp., 929 F.2d at 963.
In the present action, Defendants have proved the first two requirements for claim preclusion. Plaintiff‘s prior civil rights action at Jones v. Falor, et al, Civil No. 04-001, involved the same defendants and resulted in a final judgment on the merits by virtue of the District Court Order dated November 11, 2004. Thus, the remaining issue is whether the prior action involved the same “cause of action” under the third requirement for claim preclusion.
There is no simple test for determining what constitutes the same cause of action for claim preclusion purposes. Lubrizol, 929 F.2d at 963. The Court of Appeals for the Third Circuit has instructed the courts to review the “essential similarity of the underlying events giving rise to the
Plaintiff‘s current action involves the same parties, the same facts and the same injury as his previous action filed at Civil No. 04-0015. In that action, he contended he did not receive adequate medical care for a locking knee problem resulting from an alleged left knee meniscus tear injury. He asserts that Dr. Falor and Lapina filed a dispositive motion in the prior suit and attached his medical records. He alleges that he realized that Dr. Falor and Lapina had altered the medical records in order to defeat his knee injury claims when he received the motion and attached records, which was docketed on September 13, 2004. The Honorable Terrence F. McVerry granted summary judgment in favor of defendants in Plaintiff’s prior action and Plaintiff appealed the decision to the United States Court of Appeals for the Third Circuit. That Court affirmed the judgment for defendants in a non-precedential written opinion. Plaintiff then sought a writ of certiorari from the United States Supreme Court, which was denied.
Plaintiff was fully aware of his claim of falsified medical reports on September 13, 2004, the date Defendants filed the alleged fraudulent documents. Thus, in both suits, the acts complained of, the material facts alleged, and the witnesses and documentation required to prove the allegations all are the same. The “essential similarity of the underlying events giving rise to the various legal claims” reveals that Plaintiff should have raised his “fraud” claim in his prior action. Accord Cooney v. Booth, 210 Fed. App‘x 213 (3d Cir. 2007) (finding fraud claim was barred by collateral estoppel based on prior medical malpractice case).
As to the events in question that are not time-barred, the record is clear that summary judgment was properly entered. Jones’ knee injury was initially identified in mid-2002. He was referred for an MRI examination in August 2002 and found to have a meniscus tear. In February 2003, Jones was referred to an orthopedist, who recommended surgery. That surgery was performed on March 31, 2003. Jones was afforded post-operative physical therapy and numerous follow-up visits with prison medical staff. On this record, we find no evidence from which a reasonable trier of fact could conclude that the defendant medical personnel were deliberately indifferent to Jones’ needs with regard to his left knee. Although Jones complains primarily about the timing of his treatment, a rational jury could not conclude that the medical defendants impermissibly denied, delayed, or prevented Jones from receiving needed treatment.
Jones v. Falor, 135 Fed. App‘x 554, 556 (3d Cir. 2005), cert. denied, 549 U.S. 944 (2006). Plaintiff even filed a petition for certiorari in the United States Supreme Court where he could have raised his fraud claim.
There simply is no basis to allow Plaintiff another opportunity to litigate his fraudulent records claim in the instant action. Accordingly, Defendants’ Motion to Dismiss the Complaint based on claim preclusion should be granted.
It is respectfully recommended that Defendants’ Motion to Dismiss (ECF No. 20) be granted and that Plaintiff’s Motion to Substitute an Executor or Administrator for Defendant Stanley Falor, M.D., Because of His Death (ECF No. 65) be denied as moot.
In accordance with the Magistrate Judges Act,
October 18, 2010
Lisa Pupo Lenihan
U.S. Magistrate Judge
cc: Damon Jones
AY-2893
SCI Graterford
P.O. Box 244
Graterford, PA 19426