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David Michael Crooks v. Dr. Victor Thomas

August 29, 2012


The opinion of the court was delivered by: Lenihan, M.J.

Chief Magistrate Judge Lisa Pupo Lenihan

ECF No. 6


Currently pending before the Court is Defendant's Motion to Dismiss the Amended Complaint for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (ECF No. 6). For the reasons set forth below, the Court will grant the motion to dismiss.


Plaintiff, David Michael Crooks, commenced this action in forma pauperis on or about

March 24, 2011, asserting a state common law claim of medical malpractice. (Compl., ¶3, ECF No. 2.) Shortly thereafter, Plaintiff filed an Amended Complaint on March 30, 2011. (ECF No. 3.) In his Amended Complaint, Plaintiff alleges that he resides in Pittsburgh, Pennsylvania. (Am. Compl., ¶1.) He further alleges that the Defendant is a resident of Pennsylvania. (Am. Compl., ¶2.)

Plaintiff injured his ankle during a National Guard drill. He was referred to an orthopedic specialist, Defendant Dr. Victor Thomas, for treatment. (Am. Compl., ¶3.) After several visits, Dr. Thomas recommended that Plaintiff undergo arthroscopic surgery on his left knee. (Id.) The surgery was performed on March 25, 2009. (Compl. ¶3.) Plaintiff alleges that during the surgery, Dr. Thomas found no injury or damage to his knee but shaved out inflammation buildup. (Am. Compl., ¶3.) Following the surgery, Plaintiff contends his pain is worse and more extensive, and additionally, has suffered nerve damage at a portal from the incision during the surgery, which required additional surgery. (Id.) Plaintiff further alleges that another orthopedic specialist, Dr. Akhavan, reviewed the MRIs of his knee both pre- and post-surgery, and indicated he saw no reason for the surgery. (Id.) In addition, Plaintiff contends that his neurologist, Dr. Spiess, has attributed the nerve damage to his knee surgery. (Id.)

Plaintiff alleges that after the surgery, he is unable to be on his feet or walk for more than 15 minutes without "excruciating pain" and has problems sleeping due to the pain. (Id.) Plaintiff claims damages in the amount of $200,000 for pain and suffering, loss of army enlistment bonus, loss of army pay, loss of school tuition, lost wages, and transportation to doctor's visits and physical therapy. Id.

Plaintiff instituted the present action on March 24, 2011. After a period of inactivity, on May 4, 2012, this Court issued an Order to show cause as to why a report should not be issued to a district judge recommending that this case be dismissed for failure to prosecute. (ECF No. 4.) Shortly thereafter, Plaintiff had the Summons reissued on May 22, 2012 and effectuated service on Defendant on May 23, 2012 (ECF No. 5). On June 5, 2012, Defendant filed a Motion to Dismiss (ECF No. 6) and a brief in support thereof (ECF No. 7). The Court entered an order on June 13, 2012 directing Plaintiff to file a response and/or brief to Defendant's motion on or before June 29, 2012. On July 2, 2012, the Clerk's Office docketed a Notice dated June 28, 2012 received from Plaintiff (ECF No. 9), clarifying that "the jurisdiction [he] is using for this case is an option on the forms from the Clerk's Office that [he] filed . . . on March 24, 2011[,]" which is a malpractice suit. Plaintiff also clarified that both he and the Defendant live in Pennsylvania. (Id.)

While the motion to dismiss was pending, on August 28, 2012, Defendant filed a Request for Entry of Judgment against Plaintiff as to the state law professional liability claim against him for failure to file a certificate of merit within the time period required by Pennsylvania Rule of Civil Procedure 1042.3.*fn1


A motion to dismiss under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Patsakis v. Greek Orthodox Archdiocese of Am., 339 F. Supp.2d 689, 692 (W.D. Pa. 2004) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); see also Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In the case at bar, Defendant appears to make a facial challenge. In a facial attack, the court must consider the allegations of the complaint as true, in the light most favorable to the plaintiff, similar to a motion to dismiss under Rule 12(b)(6). Mortensen, 549 F.2d at 891; In re Kaiser Group Int'l, Inc., 399 F.3d 558, 561 (3d Cir. 2005) (citation omitted). The Court must liberally construe the factual allegations of Plaintiff's Complaint because pro se pleadings, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]" ...

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