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Milhouse v. Rajjob

United States District Court, M.D. Pennsylvania

June 21, 2019

KAREEM HASSAN MILHOUSE, Plaintiff
v.
RODWAN K. RAJJOUB, et al., Defendants

          MEMORANDUM

          Kane Judge.

         Plaintiff Kareem Hassan Milhouse (“Plaintiff”), who is currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”), initiated the above-captioned action on August 1, 2018 by filing a complaint pursuant to the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Presently before the Court are Defendants Rodwan K. Rajjoub (“Rajjoub”) and Lycoming Neurosurgical Associates (“LNA”)'s motion to dismiss Plaintiff's second amended complaint (Doc. No. 71), Plaintiff's motion to voluntarily dismiss (Doc. No. 78), and Plaintiff's motion to withdraw his motion to voluntarily dismiss (Doc. No. 76). The motion to dismiss has been fully briefed. For the following reasons, the Court will grant Defendants' motion to dismiss (Doc. No. 71), grant Plaintiff's motion to withdraw his motion to voluntarily dismiss (Doc. No. 76), and direct the Clerk of Court to close this case.

         I. BACKGROUND

         A. Procedural Background

         Plaintiff's initial complaint was brought against Defendants Rajjoub and LNA, as well as Defendants Andrew M. Edinger (“Edinger”), John Doe Corporation, and the United States, alleging the denial of medical care subsequent to Plaintiff's back surgery. (Doc. No. 1.) Subsequently, Plaintiff filed a motion to amend/correct complaint (Doc. No. 16), and a motion to supplement (Doc. No. 22). Defendants Edinger and the United States filed a motion to dismiss and for summary judgment on November 19, 2018. (Doc. No. 25.) In their brief in support, Defendants asserted, inter alia, that Plaintiff had not exhausted his administrative remedies with respect to his claims against Defendant Edinger. (Doc. No. 37.) In an Order dated January 4, 2019 (Doc. No. 41), the Court, inter alia, granted Plaintiff's motion to amend/correct his complaint (Doc. No. 15), and his motion to supplement (Doc. No. 22). The Court also denied the motion to dismiss and motion for summary judgment (Doc. No. 25), without prejudice (Doc. No. 41). Plaintiff's amended complaint brought pursuant to Bivens against LNA, Rajjoub and Edinger, was docketed that same day. (Doc. No. 42.)

         On February 1, 2019, Plaintiff filed a motion to voluntarily dismiss Defendant Edinger (Doc. No. 46), noting that “at the moment he [cannot] prove his claim against Dr. Edinger” (Doc. No. 47 at 1). On the same date, Magistrate Judge Carlson entered a Report and Recommendation (Doc. No. 49), in which he recommended that Plaintiff's motion to voluntarily dismiss be granted. On February 14, 2019, Defendants Rajjoub and LNA filed a brief in support of their objections to the Report and Recommendation. (Doc. No. 53.) Plaintiff filed his response on February 25, 2019. (Doc. No. 54.) In an Order dated April 2, 2019, the Court adopted Magistrate Judge Carlson's Report and Recommendation, overruled the objections, and granted Plaintiff's motion to voluntarily dismiss Defendant Edinger. (Doc. No. 66.)

         Plaintiff subsequently filed two motions to amend/correct his complaint, attaching a proposed second amended Bivens complaint to each. (Doc. Nos. 56, 61). Defendants Rajjoub and LNA filed a motion to dismiss Plaintiff's amended complaint. (Doc. No. 59.) In an Order dated April 15, 2019, the Court denied as moot Plaintiff's first motion to amend/correct, granted his second motion to amend/correct, directed the Clerk of Court to file the second amended complaint as a separate docket entry, and denied as moot Defendant Rajjoub and LNA's motion to dismiss. (Doc. No. 69.)

         B. Allegations of Second Amended Complaint

         Plaintiff had back surgery at Susquehanna Health on March 8, 2017. (Doc. No. 70 ¶ 12.) On April 17, 2017, he went to Defendant LNA for a six-week post-surgical follow-up. (Id. ¶ 13.) At that appointment, Defendant Rajjoub scheduled another follow-up appointment for July of 2017. (Id.) Plaintiff alleges that two (2) days later, that follow-up appointment was cancelled after a discussion between Defendant Rajjoub and a Bureau of Prisons (“BOP”) employee. (Id. ¶ 14.) Defendant Rajjoub “said he need[ed] to better assess [Plaintiff] for post-surgical [complications] which takes usually around [six months] for surgeries of [that] kind.” (Id.)

         Plaintiff alleges that because of Defendant Rajjoub cancelling his follow-up appointment, his medical hold was lifted and he was transferred to another federal facility, therefore “discontinuing what post-surgical care he was to receive.” (Id. ¶¶ 15-16.) On May 9, 2017 and July 17, 2017, medical staff then examined Plaintiff, then incarcerated at USP McCreary, and determined that his condition, including the neuropathy in his left foot, had worsened. (Id. ¶¶ 17-18.) On October 4, 2018, Plaintiff was diagnosed with a nerve condition of the spine that affects his lower right leg. (Id. ¶ 21.)

         Plaintiff asserts that in the course of these events, Defendants Rajjoub and LNA violated his rights under the Eighth Amendment to the United States Constitution by demonstrating deliberate indifference to his medical needs. (Id. ¶¶ 28-38.) Plaintiff also appears to suggest that they committed medical malpractice in that he asserts that they had “a duty to ensure that [he] received adequate medical care and failed to do so.” (Id. ¶ 34.) Plaintiff requests declaratory relief, as well as compensatory and punitive damages. (Id. at 5.)

         II. LEGAL STANDARD

         A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

         Federal notice and pleading rules require the complaint to provide the defendant notice of the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a plausible right to relief. See Fed.R.Civ.P. 8(a). Although Federal Rule of Civil Procedure 8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled to relief, ” a complaint may nevertheless be dismissed ...


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