The opinion of the court was delivered by: Conti, District Judge.
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to dismiss (ECF No. 7) the amended complaint of pro se plaintiff Richard Jarzynka ("Jarzynka" or "plaintiff") as well as a motion to dismiss (ECF No. 12) Jarzynka‟s response to the motion, which the defendant UPMC Health System ("UPMC") refers to as the second amended complaint. On February 14, 2011, Jarzynka filed the amended complaint (ECF No. 5), alleging the following claims: violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., (Count I); false imprisonment (Count II); battery (Count III); and violation of his rights under 42 C.F.R. §§ 482.13(b) and (e) (Counts IV and V). On February 23, 2011, UPMC filed the motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), arguing there is (1) no individual claim for past events under the ADA, (2) no individual claim for violations of 42 C.F.R. § 482.13, and (3) no subject-matter jurisdiction over the remaining state law claims. (ECF No. 7.) In his response to UPMC‟s motion to dismiss the amended complaint (ECF No. 11), Jarzynka requested leave to amend the amended complaint to "convert" Count I from an ADA claim to a violation of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 701 et seq., and to retract Counts IV and V. UPMC filed a motion to dismiss Jarzynka‟s response, which it called the second amended complaint. (ECF No. 12.) UPMC contends that there is no claim for medical treatment decisions under the Rehabilitation Act and thus, this court lacks subject-matter jurisdiction over the remaining state law claims.
On May 9, 2011, Jarzynka filed a response (ECF No. 16) to UPMC‟s motion to dismiss the second amended complaint arguing, among other things, it was procedurally improper because he had not yet filed a second amended complaint. On September 1, 2011, Jarzynka filed a notice to withdraw Counts II (false imprisonment) and Count III (battery) of his amended complaint. (ECF No. 17).
Due to UPMC‟s apparent confusion regarding the nature of Jarzynka‟s response, the court will treat Jarzynka‟s response (ECF No. 11) to UPMC‟s motion to dismiss the amended complaint as a motion for leave of court to amend the amended complaint, i.e. to file a second amended complaint; UPMC‟s motion to dismiss the second amended complaint (ECF No. 12) will be treated as UPMC‟s opposition to Jarzynka‟s motion for leave to file a second amended complaint; and, Jarzynka‟s response to UPMC‟s opposition (ECF No. 16) will be treated as a reply.
Jarzynka did not respond to UPMC‟s motion to dismiss the ADA claim contained in his amended complaint, other than to request leave to file a second amended complaint to "convert" that claim to a Rehabilitation Act claim. Under these circumstances, because Jarzynka did not contest the grounds supporting the dismissal of his ADA claim, the court will grant the motion to dismiss the amended complaint (ECF No. 7.) This opinion will address whether Jarzynka‟s request to file a second amended complaint to assert a claim under the Rehabilitation Act should be granted. Because the allegations to support such a claim show that the claim would be futile, the court concludes the request will be denied. The denial is without prejudice to plaintiff being able to request leave to file an amendment to raise a different federal claim. If plaintiff has plausible grounds to make such a request, a motion for leave to file a second amended complaint must be filed within thirty days of the entry of this Memorandum Opinion and Order. In the event no such motion is timely filed, this case will be closed with prejudice.
Jarzynka alleges the following facts in the amended complaint. Jarzynka has received continuous treatment for bipolar disorder since his diagnosis in 1989. (Pl‟s Am. Compl. ¶ 71.) He receives social security disability benefits because he has bipolar disorder. (Id. ¶ 75.) UPMC, a health care provider, receives federal medicare assistance. (Pl‟s Resp. to Def.‟s Mot. to Dismiss Pl‟s Am. Compl. ¶¶ 9-10.) Jarzynka voluntarily went to the Diagnostic Evaluation Center ("DEC") of Western Psychiatric Institute and Clinic ("WPIC") on September 28, 2010. (Pl‟s Am. Compl. ¶ 7.) He went to DEC because he was concerned that his bipolar medication, prescribed by a WPIC physician, might be contributing to his symptoms from restless leg syndrome, also treated by the same physician. (Id. ¶¶ 9-10.) Jarzynka told a social worker at DEC that he was not experiencing any symptoms of bipolar disorder and he was not having any violent thoughts or delusions. (Id. ¶¶ 11, 15.)
After waiting for four hours, Jarzynka decided to leave. (Id. ¶ 19.) Jarzynka approached an employee located by the Emergency Room and told the employee that he wanted to leave. The employee called a supervisor asking permission to let Jarzynka go. (Id. ¶ 21.) The supervisor told the employee Jarzynka could leave only after being evaluated by a doctor. (Id. ¶ 22.) Despite several requests, Jarzynka was not permitted to exit through the locked door. (Id. ¶¶ 23-27.) Security personnel were called for assistance, and Jarzynka attempted to kick open the door, which was the only way out. (Id. ¶¶ 28-30.) Jarzynka exited the DEC when a WPIC employee entered through the locked door. (Id. ¶ 31.) Three WPIC employees grabbed Jarzynka and violently restrained him against his will, unsuccessfully trying to force him to the floor. (Id. ¶¶ 32-36.) After one of the employees yelled for a nurse to give Jarzynka a shot, he quit resisting. (Id. ¶¶ 37-39.) Jarzynka was subsequently held in a seclusion room for four hours before a doctor evaluated him. (Id. ¶¶ 45-49.) The doctor recommended Jarzynka see a neurologist and discharged him. (Id. ¶ 51.)
In response to a report of this incident, the Pennsylvania Department of Health ("the DOH") conducted an unannounced investigation on December 13, 2010. (Id. at Ex. E.) The DOH cited WPIC with violations of Pennsylvania licensure and federal medicare regulations. (Id.)
WPIC‟s policy is that "[w]hen a consumer requests an evaluation in the DEC, they must be seen by a physician before leaving. The purpose of the physician evaluation is to assure that there are no immediate safety concerns." (Id. at Ex. B.) This policy is based upon patients at WPIC having or being treated as having a psychiatric disability. (Id. ¶ 87.) UPMC‟s other hospitals that do not specialize in the treatment of psychiatric illnesses do not require an evaluation before a patient, who arrived voluntarily, may leave. (Id. ¶ 86.) WPIC maintains this policy under the presumption that all individuals with psychiatric disabilities are likely to be dangerous to themselves and others. (Id. ¶¶ 85, 88.)
Motion for Leave to Amend Complaint
Federal Rule of Civil Procedure 15(a) ...