Foster v. Klasko

IVAN D. FOSTER, Plaintiff, v. DR. STEPHEN KLASKO, et al., Defendants.

Civil No. 20-1905 (RBK/JS)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

February 26, 2020

NOT FOR PUBLICATION

OPINION

KUGLER, United States District Judge:

This matter comes before the Court on pro se Plaintiff Ivan D. Foster's Verified Complaint (Doc. No. 1 ("Compl.")) and application to proceed in forma pauperis ("IFP") (Doc. No. 1-1). Due to complications from his hypertension and chronic kidney disease ("CKD"), over the past two months Plaintiff has repeatedly visited the emergency rooms ("ERs") of hospitals operated by Defendant Thomas Jefferson University Hospital Inc. ("Jefferson"). Plaintiff claims that on each of those visits Jefferson failed to comply with the screening and stabilization requirements of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd. He further claims that certain Jefferson doctors have committed malpractice, resulting in a deterioration of his condition. The Court has already granted Plaintiff's application to proceed IFP (Doc. No. 2), but pursuant to 28 U.S.C. § 1915(e)(2) must now screen the Complaint to determine whether Plaintiff's action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from an immune defendant. For the reasons set forth below, Plaintiff's Complaint is DISMISSED.

I. BACKGROUND

A. Factual Background

Plaintiff is a fifty-four-year-old African-American man suffering from CKD, cardiac stress, and hypertension. (Compl. at ¶¶ 1, 50). Seeking treatment for his condition, he visited the ER of Jefferson's Stratford, New Jersey hospital on January 1, 2020, January 2, 2020, January 4, 2020, January 16, 2020, January 17, 2020, January 22, 2020, January 23, 2020, multiple times on January 24, 2020, January 25, 2020, January 29, 2020, multiple times on February 2, 2020, multiple times on February 3, 2020, February 5, 2020, multiple times on February 9, 2020, and February 17, 2020. (Id. at ¶ 2). He also visited the ER of Jefferson's Cherry Hill, New Jersey hospital every day from January 7, 2020 through January 13, 2020. (Id.).

Plaintiff asserts that he was repeatedly discharged despite exhibiting high blood pressure. (Id. at ¶¶ 12-13). He also contends that Jefferson refused to perform a doppler ultrasound on his kidneys or to order a cholesterol test, either of which could have determined if there is blockage in the blood flow of his kidneys. (Id. at ¶ 36).

During his visit to Jefferson-Stratford on January 1, Plaintiff was treated by a Dr. Pagano. (Id. at ¶ 62). Plaintiff complained that Dr. Pagano was not treating him quickly enough after sitting and throwing up for two hours without treatment. (Id. at ¶ 63). On January 4, Plaintiff returned to the Jefferson-Stratford ER, where Dr. Pagano treated him again. (Id. at ¶ 62). Before receiving treatment, Plaintiff was forced to sit near the doctors' station for two hours, during which time his blood pressure climbed from 162/90 to 220/121. (Id. at ¶ 37). Dr. Pagano wished to treat Plaintiff with an IV, but Plaintiff refused treatment because he did not trust Dr. Pagano; Plaintiff requested oral medication instead. (Id. at ¶ 62). Dr. Pagano refused, and Plaintiff was discharged with bloodpressure around 198/111, even though his normal blood pressure is around 126/79. (Id. at ¶¶ 13, 63).

During Plaintiff's January 16 visit to Jefferson-Stratford, Jefferson doctors performed a non-doppler ultrasound on Plaintiff's kidneys. (Id. at ¶ 9; Doc. No. 1-2 at 1). This ultrasound revealed a "subcentimeter low-attenuation lesion at the upper left kidney which is too small to characterize although may represent a cysts [sic]" and a similar possible cyst on Plaintiff's right kidney. (Compl. at ¶ 9; Doc. No. 1-2 at 6). The next day, Plaintiff again visited Jefferson-Stratford's ER. On this visit, Defendant Dr. Tessdale ordered a contrast CT scan of Plaintiff's aortic artery. (Compl. at ¶¶ 8, 42). Plaintiff asserts that due to the cysts on his kidneys, this CT scan permanently damaged his kidneys, causing him to develop CKD. (Id. at ¶¶ 8-9).

On one of his February 2 visits to Jefferson-Stratford, Plaintiff sat in the ER and vomited repeatedly. (Id. at ¶ 56). His condition was not treated. (Id.). Later, he was removed from the ER with an IV in his arm. (Id. at ¶ 57).

During his February 17 visit to Jefferson-Stratford, Plaintiff requested a doppler ultrasound from a Dr. Lucernia. (Id. at ¶ 5). Dr. Lucernia told Plaintiff that he could not order a doppler ultrasound from the ER. Plaintiff then asked for a transfer to a hospital that would perform a doppler ultrasound, but Dr. Lucernia said he could not do so without an expecting doctor because that would violate EMTALA. (Id. at ¶ 6). Plaintiff did receive a non-doppler ultrasound on this visit. (Id. at ¶ 40). Later, Plaintiff called the ER departments at Jefferson's Stratford, Cherry Hill, Washington Township, New Jersey, and Philadelphia, Pennsylvania hospitals, and was told that an ER doctor can order a doppler ultrasound. (Id. at ¶ 5).

In addition to developing CKD, Plaintiff claims that his visits to Jefferson have caused him to develop an inverted t-wave in his heart. (Id. at ¶ 53). He has also suffered mental anguish and experienced pain due to Defendants' actions. (Id. ¶ 58).

B. Procedural History

Plaintiff filed his Complaint on February 21, 2020, along with a Motion for a Temporary Restraining Order ("TRO") (Doc. No. 2). Plaintiff sought a TRO requiring Jefferson to perform a doppler ultrasound on his kidneys to determine whether there are any cysts inside of his kidneys. (Doc. No. 2 at 2). On February 24, the Court denied Plaintiff's Motion for a TRO but granted his IFP application. (Doc. Nos. 4, 5).

Plaintiff has three primary claims. First, he alleges that Jefferson has repeatedly failed to properly screen him for an emergency medical condition, in violation of EMTALA. Second, he asserts that Jefferson has repeatedly failed to stabilize his condition, also in violation of EMTALA. Third, he claims that Jefferson doctors have committed malpractice against him, in particular Dr. Tessdale by performing the CT scan that caused Plaintiff to develop CKD. In addition to these claims, Plaintiff also makes passing mention of 42 U.S.C. § 1985(3) and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; he also makes vague assertions that Dr. Stephen Klasko, Jefferson's chief executive officer, and Kelly Walenda, a Jefferson lawyer, are engaged in some sort of conspiracy to defraud the public. (Compl. at ¶¶ 19, 22, 25).

II. LEGAL STANDARD

District courts must review IFP complaints and sua sponte dismiss any action or appeal that "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). "Whether a complaint should be dismissed under § 1915 because it fails to state aclaim is assessed under the same standard as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)." Rhodes v. Maryland Judiciary, 546 F. App'x 91, 93 (3d Cir. 2013).

When evaluating a 12(b)(6) motion to dismiss, "courts 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." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). A complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is not for courts to decide at this point whether the non-moving party will succeed on the merits, but "whether they should be afforded an opportunity to offer evidence in support of their claims." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). While "detailed factual allegations" are not necessary, a "plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

As Plaintiff is proceeding pro se, the Court is mindful of its "duty to construe [the] pleadings liberally and apply the applicable law, irrespective of whether [plaintiff has] mentioned it by name." Rose v. Ortiz, No. 14-1738, 2015 WL 9216589, at *1 (D.N.J. Dec. 16, 2015) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013)).

III. JURISDICTION

By pleading claims under EMTALA, 42 U.S.C. § 1985, and the ADA, Plaintiff invokes the Court's federal-question jurisdiction under 28 U.S.C. § 1331. However, the allegations inPlaintiff's Complaint are insufficient to invoke the Court's diversity jurisdiction under 28 U.S.C. § 1332. To invoke diversity jurisdiction, the plaintiff must demonstrate that there is "complete diversity, meaning that no plaintiff can be a citizen of the same state as any of the defendants," Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 346 (3d Cir. 2013) (internal quotation omitted), and that there is an amount in controversy exceeding $75,000, Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Mere averments of residency are "jurisdictionally inadequate in [a] diversity of citizenship case." McNair v. Synapse Grp. Inc., 672 F.3d 213, 219 n.4 (3d Cir. 2012) (citing Krasnov v. Dinan, 465 F.3d 1298, 1300 (3d Cir. 1972)). Further, "a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its...