Richard P. Glunk F.A.C.S. v. Noone, CIVIL ACTION NO. 15-5565

• Decision Date: 16 May 2016
• Docket Number: CIVIL ACTION NO. 15-5565
• Citation: 186 F.Supp.3d 453
• Parties: Richard P. Glunk F.A.C.S. v. R. Barrett Noone, M.D., Scott M. Goldman, M.D., Marie Vanbuskirk, Main Line Health, Joyce McKeever, Ollice Bates, Jr., Kerry Maloney, Andrew Demarest, David Grubb, Basil Merenda, Mark Vessella, Peter Marks, Steven Dade, Sabina Howell and Tammy Dougherty.
• Court: U.S. District Court — Eastern District of Pennsylvania

186 F.Supp.3d 453

Richard P. Glunk F.A.C.S.

v.R. Barrett Noone, M.D., Scott M. Goldman, M.D., Marie Vanbuskirk, Main Line Health, Joyce McKeever, Ollice Bates, Jr., Kerry Maloney, Andrew Demarest, David Grubb, Basil Merenda, Mark Vessella, Peter Marks, Steven Dade, Sabina Howell and Tammy Dougherty.

CIVIL ACTION NO. 15-5565

United States District Court, E.D. Pennsylvania.

Signed May 16, 2016

Richard P. Glunk, Malvern, PA, pro se.

Kenneth L. Joel, Office of the Attorney General, Harrisburg, PA, for R. Barrett Noone, M.D., Scott M. Goldman, M.D., Marie Vanbuskirk, Main Line Health, Joyce McKeever, Ollice Bates, Jr., Kerry Maloney, Andrew Demarest, David Grubb, Basil Merenda, Mark Vessella, Peter Marks, Steven Dade, Sabina Howell and Tammy Dougherty.

MEMORANDUM OPINION

Savage, District Judge.

Richard P. Glunk, acting pro se, brings this § 1983 action alleging all defendants deprived him of his substantive and procedural due process rights in connection with the suspension of his medical license which resulted in the loss of his hospital staff privileges. He also asserts state law claims for breach of contract and tortious interference with business relations against defendants R. Barrett Noone, M.D., Scott M. Goldman, M.D., Marie VanBuskirk and Main Line Health, Inc. ("MLH") (collectively, the "MLH defendants").

We shall dismiss the § 1983 claims against the MLH defendants because they are not state actors, and shall decline to exercise supplemental jurisdiction over the state law claims against them. Because Glunk's claims against the remaining defendants are substantially similar to claims he has asserted against them in a prior action currently pending in the United States District Court for the Middle District of Pennsylvania,¹ we shall transfer this action to that district under the first-filed rule.

Factual and Procedural Background²

Glunk is a medical doctor who specializes in plastic and reconstructive surgery.³ In 2001, one of his patients died due to a complication during a procedure at MLH.⁴ The patient's family sued Glunk and MLH.⁵

The Pennsylvania State Board of Medicine conducted a professional negligence investigation of Glunk in connection with the death.⁶ After a hearing, it voted to dismiss the charges on January 27, 2009.⁷ Defendant Ollice Bates, Jr., M.D., the Board chairman, cast the lone dissenting vote.⁸

According to Glunk, Bates met privately with the Board prosecutor, defendant Kerry Maloney, during the course of the January 27, 2009 Board meeting.⁹ Glunk alleges that subsequent to the dismissal of the charges, Bates and Maloney filed a second charge against him.¹⁰ He does not allege what instigated the second charge. It appears the new charge was Glunk's meeting ex parte with a Board member to influence the member in the original disciplinary proceedings by making contributions to a political campaign supported by the member and to the member's synagogue.¹¹

Prior to the hearing on the second charge, Slade McLaughlin, the attorney for the deceased patient's family, sent a letter to Bates and defendant Mark Vessella, the Deputy Commissioner of Professional and Occupational Affairs.¹² The letter transmitted peer review documents that McLaughlin had obtained from the MLH defendants.¹³

At the time he performed the procedure resulting in the death of his patient, Glunk had medical staff privileges at MLH.¹⁴ He contends the MLH defendants, including Noone, who was his competitor, had released the peer review documents to McLaughlin in an effort to have his license suspended so MLH could revoke his staff privileges.¹⁵

Department of State ("DOS") prosecutors David Grubb and Andrew Demarest alerted Glunk's attorney that the McLaughlin letter had been "intercepted" before it could be read by Bates or Vessella.¹⁶ Nevertheless, because they did not specifically mention the peer review documents enclosed with the McLaughlin letter,¹⁷ Glunk alleges that defendant Joyce McKeever, the hearing examiner for the Board of Medicine who presided over the proceedings, conspired with the other defendants to conceal the McLaughlin letter and the enclosed peer review documents.¹⁸ In addition, according to Glunk, McKeever relied on McLaughlin's research and material drafted by other DOS personnel who had seen the McLaughlin letter with the enclosed peer review documents.¹⁹ Glunk also alleges that McKeever did not allow his witness to testify to discredit the testimony of the Board member he had allegedly attempted to influence, and she ignored cross-examination of the Board member.²⁰

On December 2, 2010, McKeever issued a decision suspending Glunk's medical license for sixty days.²¹ Glunk's appeals to the full Board of Medicine and the Commonwealth Court of Pennsylvania were unsuccessful.²² Both the Pennsylvania Supreme Court and the United States Supreme Court denied his petitions for allowance of discretionary appeals.²³ As a result of the decision suspending Glunk's license, MLH immediately revoked his staff privileges and cancelled surgeries that had been previously scheduled.²⁴

Glunk contends he was unaware of McLaughlin's disclosure of peer review documents until he obtained two documents on October 18, 2014 in response to a Right to Know Law request.²⁵ Yet, an exhibit attached to his amended complaint reveals that his attorney became aware of the letter when the prosecuting attorney advised his attorney of the letter during the proceedings in 2009 and 2010. He filed this action on October 9, 2015.

The MLH defendants have moved to dismiss the amended complaint, arguing that they cannot be liable under § 1983 because they are private individuals, not state actors, and the claims are barred by the statute of limitations and the Rooker-Feldman doctrine. They also contend Glunk has not adequately pleaded his claims for breach of contract and tortious interference.

The DOS defendants have also moved to dismiss the amended complaint. They contend the doctrine of claim preclusion and the existence of a prior pending action warrant dismissal. They also argue Glunk has not adequately stated a claim. Demarest, Grubb and Maloney contend they are entitled to prosecutorial immunity. McKeever invokes judicial immunity.²⁶

Standard of Review

When considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all well-pleaded allegations in the complaint are accepted as true and viewed in the light most favorable to the plaintiff. Powell v. Weiss, 757 F.3d 338, 341 (3d Cir.2014). The complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), giving the defendant "fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this standard "does not require ‘detailed factual allegations' ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ).

To survive a motion to dismiss, the complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). The plaintiff must allege facts that indicate "more than a sheer possibility that a defendant has acted unlawfully." Id . Pleading only "facts that are ‘merely consistent with’ a defendant's liability" is insufficient and cannot survive a motion to dismiss. Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). Additionally, a pro se plaintiff's pleadings must be considered deferentially, affording him the benefit of the doubt where one exists. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003) (citing Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir.2002) ). With these standards in mind, we shall accept as true the facts as they appear in Glunk's amended complaint and draw all possible inferences from these facts in his favor.

Claims Against the MLH Defendants

Section 1983 Claims

To state a § 1983 claim, a plaintiff must allege that he was deprived of a federal constitutional or statutory right by a person acting under the color of state law. Kach v. Hose, 589 F.3d 626, 646 (3d Cir.2009). Only a person acting under color of state law may be liable for a constitutional deprivation under § 1983. However, under certain circumstances, a private person may be deemed a state actor subject to § 1983 liability.

Whether a private actor qualifies as a state actor hinges on "whether there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Id. (citations and quotations omitted). The requisite connection exists where either: (1) the private entity was exercising powers traditionally within the exclusive prerogative of the state; (2) the private party acted with the aid of or in concert with state officials; or (3) there is a "sufficiently close nexus between the state and the challenged action of the [actor] so that the action may be fairly treated as that of the State itself." Id. at 646, 648 (citations and quotations omitted) (emphasis in original).

The necessary "close nexus" exists where the state exercises coercive power or provides "such significant encouragement, either overt or covert," deeming the conduct state action. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ). "[M]ere approval or acquiescence of the State" does not transform action taken by private actors into state action. Id. (citing Blum v. Yaretsky, 457 U.S. 991, 1004–05, 102 S.Ct. 2777, ...