United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Douglas Gene Ingram, plaintiff, filed suit on September 4, 2012, seeking compensation for "misleading malpractice misdiagnosis... and negligent reports." Ingram asserts that he was diagnosed with an "Achilles tendon rupture and avulsion fracture of the right calcaneus" and was advised that "he will need an exploration of the right calcaneus with Achilles tendon repair with open reduction, internal fixation with anchor sutures with splint application." ECF No. 1. Plaintiff complains that he has been in pain for many months, but there have been conflicting reports as to whether he is to receive surgery or physical therapy. He accuses defendants, an orthopedic surgeon and a podiatrist, of medical malpractice and seeks compensatory damages totaling $2, 000, 000.00.
Each defendant has moved to dismiss. ECF Nos. 16 & 18. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), plaintiff was notified of his rights and obligations to file responsive pleadings. See ECF Nos. 17 & 19. Plaintiff sought and was granted additional time to file his opposition. ECF Nos. 21 & 22. Notwithstanding the extension afforded to plaintiff, he did not respond.
No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, defendants' motions shall be granted and the complaint shall be dismissed.
Standard of Review
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. See Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). Such a motion constitutes an assertion by a defendant that, even if the facts alleged by the plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted." Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). It provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendant with "fair notice" of the claim and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 n.3 (2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009).
A plaintiff need not include "detailed factual allegations" in order to satisfy Rule 8(a)(2). Id. at 555. But, the rule demands more than bald accusations or mere speculation. Id .; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). To satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if... [the] actual proof of those facts is improbable and... recovery is very remote and unlikely." Twombly, 550 U.S. at 556. In other words, the complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Id. at 570; see Iqbal, 556 U.S. at 684; Simmons v. United Mortg. and Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011).
In reviewing a motion to dismiss, the court "must accept as true all of the factual allegations contained in the complaint, '" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir.), cert. denied, ____ U.S. ____ , 132 S.Ct. 402 (2011); Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, 559 U.S. 992 (2010). However, a complaint that provides no more than "labels and conclusions, " or "a formulaic recitation of the elements of a cause of action, " is insufficient. Twombly, 550 U.S. at 555. Similarly, the defendant's motion will be granted if the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679 (citation omitted). Moreover, the court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Monroe, 579 F.3d at 385-86.
"A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer" that the plaintiff is entitled to the legal remedy he or she seeks. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011), cert. denied, ___ U.S. ___ , 132 S.Ct. 1960, 182 L.Ed.2d 772 (2012). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.'" Hartmann v. Calif. Dept. of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (citation omitted); accord Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Reg. Sys., Inc., 680 F.3d 1194, 1201-02 (10th Cir. 2011) ("When reviewing a 12(b)(6) dismissal, we must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.' Dismissal is appropriate if the law simply affords no relief.") (internal citation omitted).
Because plaintiff is self-represented, his submissions are liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, in evaluating the complaint, the court need not accept unsupported legal allegations, Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), nor must it agree with legal conclusions couched as factual allegations, Iqbal, 129 S.Ct. at 1950, or conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not show[n]... that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. 
Defendants contend that plaintiff has failed to state a claim for relief under F.R. Civ. P. 12(b)(6). Defendant Manning also relies on Rule 12(b)(1). Both assert that this court lacks jurisdiction because the complaint does not involve a federal question. In particular, they point out that plaintiff has only raised issues of negligence/medical malpractice and, in the absence of diversity of citizenship among the parties, this court has no authority to resolve such a case. Defendants further assert that plaintiff provides no factual basis in support of a constitutional claim, nor does he seek relief under 42 U.S.C. § 1983. Moreover, defendants point out that, even if there were diversity jurisdiction, plaintiff's medical malpractice claims are subject to the mandatory arbitration provisions of the Maryland Health Care Malpractice Claims Act, by which he must first file his malpractice claim with the Maryland Health Care Alternative Dispute Resolution Office. See Md. Code, §§ 3-2A-01 et seq. of the Courts and Judicial Proceedings Article. The court concurs.
Plaintiff asserted federal jurisdiction under 28 U.S.C. § 1343. That provision confers jurisdiction on a federal district court over any civil action to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. See 28 U.S.C. § 1343(3). Plaintiff provides no facts indicating he was denied access to medical care for his condition, which could give rise to a claim under the Eighth Amendment. Plaintiff's allegations are simply that the medical providers were negligent and committed medical malpractice. That amounts to a tort claim.
As indicated, 28 U.S.C. § 1343 confers a remedy for the enforcement of rights arising under the Constitution or federal law. But, it does not otherwise create rights. See Howard v. State Dep't. of Highways of Colorado, 478 F.2d 581, 585 (10th Cir. 1973). It was plainly plaintiff's intention to sue defendants under a theory of medical ...