Estate of Williams-Moore v. Alliance One Receiv., No. 1:03 CV 899.

Decision Date03 September 2004
Docket NumberNo. 1:03 CV 899.
Citation335 F.Supp.2d 636
CourtU.S. District Court — Middle District of North Carolina
PartiesESTATE OF SHELIA WILLIAMS-MOORE, RN BSN, Willie F. Moore, RN BSN, Plaintiff, pro se v. ALLIANCE ONE RECEIVABLES MANAGEMENT, INC., and CEO; Blue Cross Blue Shield (Partners) of North Carolina and CEO; Duke University Health System, Inc. and CEO, Defendants.

Willie F. Moore, Durham, NC, pro se.

Caren D. Enloe, Smith Debnam Narron Wyche Story & Myers, L.L.P., Raleigh, NC, Stephen McDaniel Russell, Bell Davis & Pitt, P.A., Winston-Salem, NC, John Anthony Zaloom, William E. Freeman, Moore & Van Allen, Durham, NC, for Defendants.

O-R-D-E-R

BEATY, District Judge.

On June 8, 2004, in accordance with 28 U.S.C. § 636(b), the Recommendation of the United States Magistrate Judge was filed and notice was served on Plaintiff and a copy was given to the court.

Within the time limitation set forth in the statute, Plaintiff and Defendants Blue Cross Blue Shield and Duke University Health System objected to the Recommendation.

The court has appropriately reviewed the portions of the Magistrate Judge's report to which objection was made and has made a de novo determination which is in accord with the Magistrate Judge's report. The court hereby adopts the Magistrate Judge's Recommendation.

IT IS THEREFORE ORDERED that (1) Plaintiff's motion to dismiss Defendant Alliance One (docket no. 32-1) without prejudice under Rule 41 upon payment of costs to Alliance One be GRANTED ; (2) the motion of Alliance One to dismiss (docket no. 23-1) is DENIED; (3) the motion to dismiss (docket no. 30-1) by BCBSNC is GRANTED IN PART in that all claims against BCBSNC, except for the claim alleging race discrimination under 42 U.S.C. § 1981, are DISMISSED; and (4) the motion to dismiss (docket no. 27-1) by Duke Health is GRANTED IN PART in that all claims against Duke Health, except for the intentional infliction of emotional distress claim and the claim alleging race discrimination under 42 U.S.C. § 1981, are DISMISSED. To the extent Plaintiff has a claim under the FEHBA based on denial of benefits, that claim is DISMISSED without prejudice to Plaintiff to exhaust his administrative remedies as set forth by the OPM regulations.1

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

WALLACE W. DIXON, United States Magistrate Judge.

This matter is before the court on a motion by pro se Plaintiff for leave to supplement his pleadings [docket no. 48] and on his motion to dismiss Defendant Alliance One without prejudice [docket no. 32-1]. Also pending before the court are motions to dismiss by all three Defendants [docket nos. 27-1, 23-1, 30-1]. Each party has responded in opposition to the respective motions, and the matter is ripe for disposition. The parties have not consented to the jurisdiction of a magistrate judge, and the court must therefore address the motions by way of recommendation.

In this lawsuit, pro se Plaintiff Willie F. Moore is proceeding individually and as the representative for the estate of his deceased wife Shelia Williams-Moore. Plaintiff has sued (1) Duke University Health System, Inc. ("Duke Health"), the hospital that treated his wife with pain management for cancer, (2) Alliance One Receivables Management, Inc. ("Alliance One"), a debt collection agency hired by Duke Health to collect a disputed balance owed, and (3) Blue Cross and Blue Shield of North Carolina ("BCBSNC"), his wife's former health insurance company. Although the legal claims are not entirely clear, it appears that Plaintiff is bringing an action through 42 U.S.C. § 1983 alleging a violation of his Fourteenth Amendment rights, an action for race discrimination under 42 U.S.C. § 1981, and various state law claims, including medical malpractice/wrongful death, fraud, and breach of contract. There is no complete diversity of citizenship, and the court's original jurisdiction is based solely on federal question jurisdiction under 28 U.S.C. § 1331.

Facts

Although Plaintiff's allegations are disorganized and extremely difficult to follow, I will attempt to reconstruct the events that led to this lawsuit.1 Plaintiff's deceased wife, Shelia Williams-Moore ("Shelia") was a retired federal employee who received her health insurance benefits from BCBSNC. Shelia was diagnosed with cancer sometime before May 2000, and she sought treatment at Duke Health. Shelia declined chemotherapy treatment and blood products and opted only for pain management as treatment. About a year and a half later, on October 31, 2001, Plaintiff and Shelia insisted that Shelia be admitted into the Duke University Medical Center hospital ("DUMC") for portal catheter placement and pain management. BCBSNC initially refused to provide coverage for admission to the hospital, and the hospital admitted Shelia as a "self-pay." BCBSNC subsequently authorized coverage for the hospital admission after Plaintiff and Shelia complained.2 While in the hospital, Shelia was given Dilaudid, a narcotic used to relieve moderate to severe pain.

On November 3, 2001, at the insistence of BCBSNC and Duke Health, and against Shelia's stated wishes to remain in the hospital longer, the hospital discharged Shelia to begin home therapy and to continue with the Dilaudid treatments. Plaintiff alleges that the hospital discharged Shelia before the doctors had adequately titrated Shelia's Dilaudid dosage (i.e., monitored the dosages until the most effective and safe levels were found). Plaintiff alleges that the Duke Health doctors then "delegated the responsibility of titration to workers for which the task was beyond their competency." Plaintiff alleges that during Shelia's subsequent home therapy, she was given toxic levels of Dilaudid, which "anesthetized" her organs and caused other debilitating side effects, including memory loss. After contacting a third-party medical provider who opined that the Dilaudid levels could be causing her symptoms, Shelia reduced her Dilaudid dosage without the consent of the Duke Health doctors, and her condition immediately improved.

On December 17, 2001, Shelia was admitted into the DUMC emergency room. She was malnourished, anorexic, and had lost weight since the October 31, 2001, hospital admission. Plaintiff alleges that during the December 17, 2001, hospital stay, Shelia's medical team established a care plan for Shelia, which included nutritional supplements, but that the Duke Health doctors subsequently failed to provide Shelia with services in accordance with the care plan. Plaintiff contends that because of the failure to follow the established care plan, Shelia's malnourishment was not properly treated, thus causing her death on January 19, 2002. Plaintiff also contends that Shelia was wrongly diagnosed with bleeding ulcers and that the diagnosis resulted in her wrongful death. Compl. ¶ 1 and Prayer for Relief, ¶ 3.

Although Plaintiff's asserted legal claims are unclear, it appears that, as to Duke Health and BCBSNC, Plaintiff is purporting to bring a § 1983 action for a violation of Shelia's Fourteenth Amendment rights as well as a claim for race, gender, and religious discrimination under 42 U.S.C. § 1981. Plaintiff also appears to be bringing state law claims against Duke Health and BCBSNC for medical malpractice/wrongful death, breach of contract, and fraud. Finally, as to Alliance One, Plaintiff alleges that Alliance One committed fraud by billing Shelia for services that were not owed.3

Procedural Facts

On September 22, 2003, Plaintiff filed the original complaint. On October 24, 2003, Alliance One filed its answer. On October 30, 2003, Duke Health filed its answer. On November 5, 2003, BCBSNC filed its answer. On December 17, 2003, an initial pretrial conference was held before the undersigned, during which the court stayed discovery and set a January 9, 2004, deadline for motions to dismiss. On December 19, 2003, Plaintiff moved to amend his complaint. On January 5, 2004, without an order by the court granting leave to amend, Plaintiff filed an "Amended Complaint."

On January 8, 2004, Duke Health filed a motion to dismiss Plaintiff's claims under Rule 12(b)(6) and, alternatively, for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. On the same day, Alliance One filed a motion to dismiss Plaintiff's claims under Rule 12(b)(6) and 12(b)(1). On January 12, 2004, BCBSNC filed a motion to dismiss Plaintiff's claims under Rule 12(b)(6). On the same day, Plaintiff filed a motion to dismiss Alliance One without prejudice. On January 13, 2004, Plaintiff filed a motion to strike the amended complaint from the record, and on February 3, 2004, Plaintiff submitted a second motion for leave to amend his complaint. Plaintiff did not, however, attach a proposed amended complaint to his second motion. Finally, on March 16, 2004, before receiving a ruling on either of his two previously filed motions to amend, Plaintiff filed a motion to supplement his complaint under Rule 15(d) of the Federal Rules of Civil Procedure, and he has attached a proposed "supplemental complaint" to the motion. Plaintiff's motion to supplement his complaint, his motion to dismiss Alliance One without prejudice, and Defendants' motions to dismiss are now before the court. The court will first address Plaintiff's motion to supplement his complaint.

I. Plaintiff's Rule 15(d) Motion to Supplement the Pleadings

The court first addresses Plaintiff's Rule 15(d) motion to supplement his pleadings. Rule 15(d) provides that a party may file supplemental pleadings "setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." FED. R. CIV. P. 15(d). Rule 15(d) motions are to be evaluated under the same standards used to evaluate motions to amend pleadings under Rule 15(a), which...

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