United States District Court, D. Delaware
Matthew Jones, Greenwood, Delaware. Pro Se Plaintiff.
Richard Galperin, Esquire, and Joshua H. Meyeroff, Esquire,
Morris James LLP, Wilmington, Delaware. Counsel for Defendant
Khaled Mirza, M.D.
C. Doherty, Esquire, and Emily K. Silverstein, Esquire,
Marks, O'Neill, O'Brien, Doherty & Kelly, P.D.,
Wilmington, Delaware. Counsel for Defendant Dover Behavioral
ANDREWS U.S District Judge
Matthew Jones, who appears pro se, filed this action
on November 4, 2015, against Dr. Khaled Mirza (improperly
named as Dr. Khalid Mirza) and Dover Behavioral Health System
(improperly named as Dover Behavioral Health Hospital). The
original complaint was dismissed on August 8, 2016, and
Plaintiff was given leave to amend only to the extent that he
raise claims that are not time-barred, Defendants are not
immune from suit, and the Court has
jurisdiction. Plaintiff filed an Amended Complaint on
August 17, 2016. (D.I. 72). He asserts jurisdiction by reason
of a U.S. government defendant. Defendants move to dismiss
pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(5), and 12(b)(6).
Briefing on the matter is complete.
Amended Complaint (D.I. 72) indicates the basis for
jurisdiction is the U.S. government as a defendant. Plaintiff
alleges that during the fall-winter of 2015, he was
forcefully confined, many times, at Dover Behavioral Health
where he was deprived of his due process rights and given
large amounts of inappropriate medication that damaged his
health and threatened his life. (Id. at 4, 5).
Plaintiff alleges assault by reason of forceful injections
that he did not need, that Defendants: (1) wrote emails that
slandered him, (2) "repeatedly committed conspiracy
against [his] rights, " (3) repeatedly made false
statements about health care; (4) repeatedly attempted
murder; (5) and violated numerous federal criminal statutes.
The Amended Complaint refers to Defendants as State actors.
records attached to the Amended Complaint indicate that
Plaintiff was hospitalized at Dover Behavioral Health System
from September 24, 2015 through October 8, 2015 when he was
discharged. (D.I. 73). He was seen by Dr. Mirza and other
physicians during that time. (Id.). Plaintiff was
involuntarily hospitalized a second time from October 19,
2015 through November 3, 2015 and seen by Dr. Mirza, as well
as other physicians, during the second hospitalization.
(Id.), The Amended Complaint alleges that
Defendants' acts caused Plaintiff physical harm. He seeks
12(b)(1). Rule 12(b)(1) of the Federal Rules of
Civil Procedure permits the dismissal of an action for
"lack of subject matter jurisdiction." A Rule
12(b)(1) motion may be treated as either a facial or factual
challenge to the court's subject matter jurisdiction.
See Constitution Party of Pa. v. Aichele, 757 F.3d
347, 357-58 (3d Cir. 2014). In reviewing a facial attack,
"the court must only consider the allegations of the
complaint and documents referenced therein and attached
thereto, in the light most favorable to the plaintiff."
Id. at 358 (quoting In re Schering Plough Corp.
v. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In
reviewing a factual attack, the court may consider evidence
outside the pleadings. Mortensen v. First Fed. Sav. and
Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
12(b)(5). A defendant may file a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(5) when a plaintiff fails to
properly serve him or her with the summons and complaint.
See Fed. R. Civ. P. 12(b)(5). A plaintiff "is
responsible for having the summons and complaint served
within the time allowed by Rule 4(m)." Fed.R.Civ.P.
4(c)(1). Rule 4(m) imposes a time limit for perfection of
service following the filing of a complaint. Fed.R.Civ.P.
4(m). If service is not completed within that time, the
action is subject to dismissal without prejudice. Id. See
also MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d
1086, 1098 (3d Cir. 1995).
12(b)(6). Under Rule 12(b)(6), a motion to dismiss
may be granted only if, accepting the well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that
those allegations "could not raise a claim of
entitlement to relief." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 558 (2007). Though "detailed
factual allegations" are not required, a complaint must
do more than simply provide "labels and
conclusions" or "a formulaic recitation of the
elements of a cause of action." Davis v. Abington
Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014)
(quoting Twombly, 550 U.S. at 555). In addition, a
plaintiff must plead facts sufficient to show that a claim
has substantive plausibility. See Johnson v. City of
Shelby, __U.S. __, 135 S.Ct. 346, 347 (2014). A
complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
reviewing the sufficiency of a complaint must take three
steps: (1) take note of the elements the plaintiff must plead
to state a claim; (2) identify allegations that, because they
are no more than conclusions, are not entitled to the
assumption of truth; and (3) for any well-pleaded factual
allegations, assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Connelly v. Lane Const. Corp., 809 F, 3d 780, 787
(3d Cir. 2016). Deciding whether a claim is plausible is a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
Ashcroft v. Iqbal, 558 U.S. 682, 879 (2009). Because
Plaintiff proceeds pro se, his pleading is liberally
construed and his complaint, "however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks
omitted). To survive a motion to dismiss under Fed.R.Civ.P.
12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. See Williams v. BASF Catalysts
LLC, 765 F.3d 306, 315 (3d Cir. 2014).
move for dismissal pursuant to Fed.R.Civ.P. 12(b)(1), (5) and
(6) on the grounds that: (1) Plaintiff failed to serve them
with the Amended Complaint and its exhibits; (2) the Court
lacks jurisdiction; (3) the medical claims do not rise to the
level of constitutional violations; (4) to the extent
Plaintiff raises medical negligence, he failed to comply with
Delaware's statutory requirements; (5) the claims are
time-barred; (8) the Amended Complaint improperly reinstates
42 U.S.C. § 1983 claims and is deficient ...