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Talbert v. Kaplan

United States District Court, Third Circuit

August 20, 2013

MARK KAPLAN, Defendant


LAWRENCE F. STENGEL, District Judge.

Charles Talbert brings this action pursuant to 42 U.S.C. § 1983 alleging that Mark Kaplan, MD, a private trauma surgeon, violated his rights under the Eighth Amendment[1] to the United States Constitution. Dr. Kaplan filed a motion to dismiss arguing, inter alia, that Mr. Talbert's claim against him must be dismissed because Dr. Kaplan cannot be considered a state actor. For the following reasons, I will grant the motion in its entirety.


The complaint alleges that on February 4, 2011, Mr. Talbert was shot multiple times in the upper half of his body. He was taken by ambulance to Albert Einstein Medical Center's Emergency Room, "where Defendant Dr. Mark Kaplan performed immaculate surgery and saved [Mr. Talbert's] life."[3] See Compl. ¶ 8. Mr. Talbert remained in the hospital as a private patient and was followed by Dr. Kaplan. During the course of healing from the gun shots and surgery, Mr. Talbert required a colostomy[4] and other painful treatments to prevent infection. Dr. Kaplan allegedly promised Mr. Talbert that the colostomy was reversible, and that he would not have to worry about wearing it for the rest of his life. Id. at ¶ 10.

One day while Mr. Talbert was still hospitalized, Dr. Kaplan was examining him and ordered the nurse to change the sponge that was inside of Mr. Talbert connected to his wound. Mr. Talbert "kindly declined" because a nurse had already changed the sponge about a half hour before the doctor's visit. Id. at ¶ 13. The procedure was very painful to Mr. Talbert, and he did not wish to go through it twice within such a short span of time. The complaint alleges that, after Mr. Talbert declined the procedure, Dr. Kaplan "got nasty at the mouth, unprofessionally, calling [Mr. Talbert] a liar, ' in which grabbed" the attention of the nurse, Mr. Talbert, and his girlfriend. Id. at ¶ 14. After the physician "disrespected [Mr. Talbert] verbally, [Mr. Talbert] made it out of [his] bed, and into [Dr. Kaplan's] face, telling him not to ever verbally, or in no shape, or form disrespect [Mr. Talbert], by calling [Mr. Talbert] out of [his] name again or it would be a problem." Id. at ¶ 15. Afterwards, Dr. Kaplan's "demeanor suddenly seemed vengeful when he replied back that [Mr. Talbert] was not grateful of nothing [sic] [Dr. Kaplan] did to help [Mr. Talbert] when [he] got shot." Id. at ¶ 17. Mr. Talbert, his father, and his girlfriend then agreed that Mr. Talbert should find another trauma surgeon, because they felt that "Dr. Kaplan had the potential of holding a grudge." Id. at ¶ 18. During every other routine check-up during the month of February 2011, "Dr. Kaplan seemed very distant, as if venom was [sic] lying underneath his ulterior motive." Id. at ¶ 19.

In July 2011, Mr. Talbert was arrested and incarcerated at the Curran Fromhold Correctional Facility, where Corizon Medical provides health care to the inmates. Id. at ¶¶ 20-21. For approximately a year, Mr. Talbert was brought periodically to Albert Einstein to be examined by Dr. Kaplan to determine when surgery could be performed to reverse Mr. Talbert's colostomy. Id. at ¶¶ 22-23. On February 10, 2012, the scheduled day of the colostomy reversal, Dr. Kaplan allegedly reassured Mr. Talbert that after a short procedure, he would be "back to normal." Id. at ¶ 25. Upon awaking from the anesthesia, Mr. Talbert was informed that he "had a hole put into [his] bladder during surgery, and [he] also had an ileostomy[5] instead of a colostomy." Id. at ¶ 26.

When Mr. Talbert informed Dr. Kaplan that the surgery resulted in his "urinating out of [his] anus, " Dr. Kaplan again called Mr. Talbert a "liar." Id. at ¶ 27. Because a nurse verified Mr. Talbert's allegations, Dr. Kaplan ordered further testing to evaluate Mr. Talbert's condition. Id. at ¶¶ 28-29.

The complaint alleges that although Mr. Talbert was brought to the hospital for the reversal of his colostomy, he instead received "an injured bladder, bladder spasms, pain in [his] pelvic bone, urinary tracking infection, an ileostomy, a fistula, severe loss of weight, loss of appetite, nausea, psychological pain, embarrassment, humiliation, and emotional distress."[6] Id. at ¶ 32.

The complaint further alleges that considering that Dr. Kaplan had promised Mr. Talbert that everything would be fine after reversal surgery, the injuries Mr. Talbert sustained from the surgery must have been due to negligence, at the very least, or were "premeditated and intentional, at the highest level of scrutiny." Id. at ¶ 35. Mr. Talbert suspects, however, that Dr. Kaplan's performance in surgery was "done out of cruelty, punishing [Mr. Talbert] maliciously for how [Mr. Talbert] got into [Dr. Kaplan's] face and threatened [Dr. Kaplan] for calling [Mr. Talbert] a liar, ' in which [Dr. Kaplan] felt embarrassed and humiliated in front of another nurse and [Mr. Talbert's] girlfriend." Id. at ¶ 36.


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson , 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all plausible inferences in favor of the plaintiff. Id .; see also D.P. Enters. v. Bucks County Cmty. Coll. , 725 F.2d 943, 944 (3d Cir. 1984).

It remains true that the Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Rather, the Rules require "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). In recent rulings, however, the Supreme Court has rejected language in Conley stating that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly , 550 U.S. at 561. Rather, a "complaint must allege facts suggestive of [the proscribed] conduct, " Twombly , 550 U.S. at 564, and it must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly , 550 U.S. at 556). Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist. , 132 F.3d 902, 906 (3d Cir. 1997).

In assessing the merits of a motion to dismiss, courts must be careful to recognize that, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679 (emphasis added). In recognition of these principles, courts must first identify those allegations in a complaint that are mere conclusions and are therefore not entitled to the assumption of truth, and next, consider whether the complaint's factual allegations, which are entitled to a presumption of truth, plausibly suggest an entitlement to relief. Id. at 680 (emphasis added).

Finally, I note that I must construe this complaint liberally. As the Supreme Court unanimously held in Haines v. Kerner , 404 U.S. 519 (1972), a pro se complaint, "however inartfully pleaded, " must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of ...

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