United States District Court, D. Maryland
W. Grimm, United States District Judge.
inmate David Courtney Zeller, who is representing himself in
this action, filed this lawsuit pursuant to 42 U.S.C, §
1983, alleging that Dr. Yiya Zhou, a dentist, performed
unnecessary oral surgery on him at Roxbury Correctional
Institution ("RCI") in 2012. Compl., ECF No. 1; Am.
Compl., ECF NO.10. Zeller also filed a Motion to Proceed
in Forma Pauperis, which I granted. ECF Nos. 2, 6,
8. After filing the Complaint, Zeller submitted a second
complaint written on a pre-printed § 1983 form, which
largely reiterates his claims in the initial complaint and
shall be treated as an amended complaint. Am. Compl. Dr. Zhou
has filed a Motion to Dismiss, contending that Zeller failed
to file a certificate of qualified expert in compliance with
the mandatory provisions of the Maryland Health Care
Malpractice Claims Act ("HCMCA", Md. Code. Ann.,
Cts. & Jud. Proc. § 3-2a Mot. to Dismiss, ECF No.
21. Zeller filed an opposition to the motion,, ECF No. 24,
and Dr. Zhou filed a reply, ECF No. 25. Also pending is
Zeller's Motion to Appoint Counsel, ECF No. 23, which
will be denied. The matter is ripe for review. A hearing
is not necessary. See Loc. R. 105.6 (D. Md. 2018).
For the reasons that follow, I will grant the Motion to
who is presently incarcerated at Western Correctional
Institution, in Cumberland, Maryland, initiated this action
on August 23, 2018. His Complaint alleged that
"[s]tarting in April/May of 2012, [he] underwent
unnecessary oral surgery procedures by DDS Dentist Doctor
Zhou." Compl. 4, ECF NO.1. Zeller did not specify the
nature of the purportedly unnecessary procedure. He has
asserted that "only later in Spring of2016 by DDS Doctor
Azizz Andrews [sic] examination was [he] told that Dr. Zhou
had ruined [his] mouth through malpractice."
Id. Zeller alleged that, as a result, he was unable
to wear his bottom dentures. Id. at 4-5. He stated
that several dentists tried but were unable to refit him for
a bottom denture, until the problem was diagnosed. At the
time he filed the Complaint, Zeller was scheduled to receive
dental implants. !d. at 5. He asserted that this
corrective surgery would be complicated, that it would take
six months for him to heal, and that he would be "forced
to survive on nothing [but] a specially prepared medically
ordered diet consisting of all meals being pureed."
Suppl. 2, ECF NO.5. The Complaint sought $150, 000 in damages
for each year he has suffered pain and mental duress. Compl.
4. The Amended Complaint raises the amount of damages
requested to $1.2 million. See Am. Compl. 3.
February 7, 2019, Dr. Zhou submitted a letter acknowledging
that he treated Zeller at RCI but denying any fault. ECF No.
19. The letter explains that, ordinarily, when decay has
extended to the pulp or nerve, a dentist would perform root
canal therapy in hopes of saving the tooth. See Id.
This, however, "is definitely not routine practice in
the prison system because after root canal therapy the
patient must get a crown to protect the tooth[, ] and there
is no way Mr. Zeller can obtain a crown while in
prison." Id. Therefore, Dr. Zhou wrote,
"[t]o avoid abscess happening throughout the mouth the
non-restorable teeth must be extracted." Id.
The letter stated that before teeth are extracted, an inmate
must sign a form consenting to the procedure. Id.
Dr. Zhou stated that Zeller's denture was delivered to
him near the end of2012, and Zeller indicated in writing that
the denture fit and was comfortable. id.
February 25, 209,, Dr. Zhou, through counsel, filed a Motion
to Dismiss pursuant to Rule 12 of the Federal Rules of Civil
Procedure for failure to file a certificate of qualified
expert as required by the HCMCA, Md. Code Ann., Cts. &
Jud. Proc. § 3-2a. Mot. to Dismiss. The motion does not
specify which subsection of Rule 12 applies. Id.
STANDARD OF REVIEW
12(b)(1)) motion to dismiss for lack of subject matter
jurisdiction may be filed at any time, see Fed. R.
Civ. P. 12(h)(3), and "the court may consider extrinsic
evidence" on a 12(b)(1)) motion. United States ex
ref. Ackley v. Int'l Bus. Machs. Corp., 76 F.Supp.2d
654, 659 (D. Md. 1999).
Court, however, has determined that the "prefiling
requirement"" of a valid certificate under the
HCMCA "is most appropriately analyzed under Rule
l2(b)(6) and treated as a substantive element of state
law," rather than as a jurisdictional requirement, while
noting that "the consideration of matters outside the
pleadings converts [the motion] to a motion for summary
judgment." Webster v. Simmonds, No. DKC
2003-3306, 2005 WL 14886, at *2 (D. Md. Jan. 3, 2005)
(denying motion to dismiss); see Hanlin-Cooney v.
Frederick Cty., No. WDQ-13-1731, 2014 WL 576373, at *5,
*8 (D. Md. Feb. 11, 2014) (dismissing medical malpractice
claim under 12(b)(6) for failure to exhaust claim under
HCMCA); Elnadi v. Upinder Singh, DDS, PC, No.
ELH-12-1762, 2013 WL 1855977, at *2-*3 (D. Md. 2013)
(considering 12(b)(1) motion as a 12(b)(6) motion because
"[t]he Maryland Court of Appeals has made clear that
certain requirements under the HCMCA ... are conditions
precedent to the filing of a medical malpractice suit in
court, but do not constitute a jurisdictional
limitation".. The "HCMCAs preconditions to suit are
substantive." Zander v. United States, 843
F.Supp.2d 598, 605 (D. Md. 2012) (acknowledging precedent
applying Rule 12(b)(6) standard but applying 12(b)(1)
standard in context of Federal Tort Claims Act claim where
the application made "little practical difference"
because the Court did not consider extrinsic evidence).
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complain.. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A
complaint need only satisfy the standard of Rule 8(a), which
requires a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a
'showing'' rather than a blanket assertion, of
entitlement to relief." Bell Ml. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must
consist of more than "a formulaic recitation of the
elements of a cause of action" or "naked
assertion[s] devoid of further factual enhancement."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555, 557). When deciding a
motion to dismiss under Rule 12(b)(6), the Court considers
only the complaint and any attached documents "integral
to the complaint." Sec 'y of State for Defense
v. Trimble Navigation Ltd., 484 F.3d 700, 705
(4th Cir. 2007). All well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510
U.S. 266, 268 (1994) (plurality opinion), and all factual
allegations must be construed in the light most favorable to
the plaintiff, see Harrison v. Westinghouse Savannah
River Co., 176 F.3d 776, 783 (4th Cir. 1999).
pleadings of pro se litigants are liberally construed and
"held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting I Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). The Court, however,
cannot ignore a clear failure to allege facts that support a
viable claim. Weller v. Dep't of Soc. Servs.,
901 F.2d 387, 391 (4th Cir. 1990).
threshold consideration, the court must first determine
whether it has jurisdiction over this matter. Federal courts
"may not exercise jurisdiction absent a statutory
basis," Exxon Mobil Corp. v. Allapattah Servs.,
Inc.,545 U.S. 546, 552 (2005), and "have an
independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it."
Hertz Corp. v. Friend,559 U.S. 77, 94 (2010). A
court presumes that a case lies outside its limited
jurisdiction unless and until jurisdiction has been shown to
be proper. Uni ...