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Zeller v. Zhou

United States District Court, D. Maryland

June 24, 2019

DR. YIYA ZHOU, Defendant


          Paul W. Grimm, United States District Judge.

         Maryland 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.[1] 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 Dismiss.


         Zeller, 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.

         On 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.

         On 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.


         A Rule 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).

         This 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).

         The 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).

         The 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).


         I. Jurisdiction

         As a 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 ...

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