KONGTCHEU v. SECAUCUS HEALTH CARE LLC, No. 2:2013cv01856 - Document 34 (D.N.J. 2014)

Court Description: OPINION. Signed by Judge Claire C. Cecchi on 5/30/14. (DD, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY PHILBERT F. KONGTCHEU. Civil Action No.: 2:13-cv-1856 Plaintiff, OPINION SECAUCUS HEALTHCARE CENTER, LLC, Defendant. CECCHI, District Judge. There are three motions before the Court, Defendant s motion to dismiss (ECF No. 21) and Plaintiffs two cross-motions to strike (ECF Nos. 25 and 26). The Court decides the motions without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below the Court will administratively terminate Defendant s motion to dismiss without prejudice and deny Plaintiffs motions to strike. I. BACKGROUND Plaintiff was a resident at Defendant s long-term healthcare facility, and this dispute arises out of numerous Complaints by Plaintiff regarding his care at that facility. In his original Complaint, Plaintiff alleges that his room was unsuitable, that residents and nurse s aides were stealing his property, that his roommate s medical issues disturbed him. and that his room would The Court considers any new arguments not presented by the parties to be waived, çç Brenner v. Local 514. United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991) ( It is well established that failure to raise an issue in the district court constitutes a waiver of the argument. ). flood. (ECF No. I that ¶ 5). Plaintiff further avers that the food at the facility was terrible and onably his attempts to cook his own food or to purchase food to be prepared for him were unreas thwarted. (Id. caused him ¶J 6-7). Plaintiff states that the shower room s unsanitary conditions or damage, that he was given incorrect medications, and that his personal property was damaged stolen. (Id. guard ¶J 8-10). Plaintiff also complains that Defendant and its agents did not carefully his personal information, and did not fulfill his needs for special medical equipment. (Id. ¶J 11- staff, that 12). Plaintiff claims that he was subject to harassment and assault by Defendant s that Defendant redirected his supplemental security income payments without his permission and Defendant tampered with his mail. (jd. ¶J 13-14). 2 Plaintiff submitted serial Amended Complaints setting forth further allegations. In the first living at of these Amended Complaints, Plaintiff alleges that he was not allowed to iron while Defendant s facility. (ECF No. 4 ¶ 6). Plaintiff alleges that he was served improperly labeled iately supplements, and that his discussions with Defendants regarding the labeling immed to preceded the initiation of involuntary discharge proceedings against him, and that this seemed be an act of reprisal. (ECF No. 4 ¶j 7-8). Plaintiff sought relief barring Defendant from evicting room him. In the second of these Amended Complaints, Plaintiff alleges that Defendant entered his without permission and removed his personal items and tampered with his mail, (ECF No. 5 ¶J 2- The Court notes that Plaintiff filed these Complaints without leave of court, and that the in a Amended Complaints are difficult to understand since they do not set out his allegations notes that these filings complete document with separately numbered paragraphs. The Court violate the federal rules. Fed. R. Civ. P. 1 5(a)(l)( [aj party may amend its pleading once as a matter of course ) (emphasis added). However, given the liberal standards for pro se filings, the Court will address the merits of all of Plaintiff s allegations. However, Plaintiff is warned that in filing additional complaints without leave of court or written consent of Defendant may result sanctions. 2 2 his allegations regarding the 3). In the third of these Amended Complaints, Plaintiff re-submitted that he reported the matter to Defendant s entry to his room. (ECF No. 7 ¶l 2-6). Plaintiff alleges but did not investigate further. the Secaucus Police, who he alleges spoke with the management to forcibly enter his room to insert (4 ¶ 9). Plaintiff further alleges that Defendants attempted 12-20). Plaintiff another bed into it, and that the police were called by the facilities to assist. (4 ¶J arrest, but that the police did alleges that once the police arrived, the police threatened him with not arrest him after he threatened to record the incident. (Id. at ¶ 21-22). Plaintiff claims that the ions. (Id. at ¶J 26-28, 36incident increased his stress levels, which aggravates his medical condit a defendant on state law 37). Plaintiff sought to add the Seacaucus Town Police department as claims. (RI. at that the defendant treated ¶ 39). In the final Amended Complaint, Plaintiff alleges regarding the obstruction of him differently because he receives Medicaid, and adds allegations his mail. (ECF No. 23 ¶J 5-6). Defendant moved to dismiss. This Court has jurisdiction under 28 U.S.C. II. § 1331. LEGAL STANDARD A. Motion To Dismiss contain sufficient For a complaint to survive dismissal pursuant to Rule 12(b)(6). it must le on its face. Ashcroft v. factual matter, accepted as true, to state a claim to relief that is plausib U.S. 544, 570 (2007)). 556 U.S. 662, 678 (2009) (quoting Bell AtI. Corp. v. Twomblv, 550 all well-pleaded factual In evaluating the sufficiency of a complaint, the Court must accept in favor of the non-moving allegations in the complaint as true and draw all reasonable inferences 2008). However, the [fjactual party, See Phifli sv. Cntv. of 11e henv. 515 F.3d 224, 234 (3d Cir. ative level. Twombly, 550 allegations must be enough to raise a right to relief above the specul and conclusions or a formulaic U.S. at 555. In other words, [a] pleading that offers labels 3 recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. Iqbal, 556 U.S. at 678 (internal citations and quotations omitted). B. Standard For Reviewing Pro Se Filings Because Plaintiff is apro se litigant, his filings are entitled to a liberal construction. Diuhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). This Court therefore has a special obligation to discern both the nature of the relief and the appropriate law to govern his request. III. PLAINTIFF S FEDERAL CLAIMS Liberally construing Plaintiff s complaints, it appears as though he has asserted as many as ten separate claims that might arise under federal law. These are: (1) violation of HIPAA privacy rights, 45 C.F.R. 160-164 (ECF No. 1 ¶ 20); (2) a violation of the resident s rights regulations that an institution must meet in order to qualify for certain participation in the Medicare and Medicaid programs, 42 C.F.R. fraud, 18 U.S.C. § 483.10 (ECF No. 1 ¶ 18); (3) violation of criminal statutes against wire § 1343 and 1346 (ECF No. I ¶ 24); (4) violations of the criminal statute against obstruction of correspondence, 18 U.S.C. § 1702 (ECF No. 1 ¶ 40); (5) violation of the Food Drug and Cosmetic Act as amended by the Nutrition Labeling and Education Act, 21 U.S.C. (6) violation of the Americans with Disabilities Act, Title III ( ADA ), 42 U.S.C. § 301 (Id.); § 12181-12189 (Id.); (7) violations of the False Claims Act ( FCA ) under 31 U.S.C. § 3729-3733 (ECF No. I ¶ 27); (8) violation of the requirements for nursing facilities under 42 U.S.C. 4); (9) violation of his First Amendment rights by Defendant (ECF No. 5 of his Fifth Amendment rights by Defendant (ECF No. 23 § l396r (ECF No. 4 ¶ ¶ 4); and (10) a violation ¶ 3). Although Defendant styles its motion as one to dismiss the entire Complaint, Defendant does not address each one of these claims. This leaves the Court with an undeveloped record upon 4 address (I) Plaintiffs ADA which to make a determination. In particular. Defendant does not violation of the requirements claims, (2) Plaintiff s Federal FCA claims, (3) Plaintiffs claims of for nursing facilities under 42 U.S.C. § 1 396r or (4) Plaintiffs constitutional allegations. gh review difficult. First, There are also two other procedural issues which make a thorou motion to dismiss. Second, Plaintiffs Fourth Amended Complaint was filed after Defendant s inary injunction that sets since this motion was filed, Plaintiff has submitted a motion for a prelim ofthe out additional facts relevant to the Parties dispute. Accordingly, in light incomplete briefing, aint, and the subsequent the posture of this motion relative to the Fourth Amended Compl and give Plaintiff an application for injunctive relief, the Court will terminate this motion full opportunity to argue their opportunity amend his Complaint so that the parties can have a Holdings, 2008 WL respective positions. See Daewoo Elec. Am. Inc., v. T.C.L. Indus. (H.K.) y Grp. Co., 212 F.3d 180, 197 5136937, at *3 (D.N.J. Dec. 5, 2008) (citing U.S. S.E.C. v. Infinit the sound discretion of the (3d Cir. 2000) ( Matters of docket control and scheduling are within district court. ). IV. DEFENDANT S REQUEST TO ARBITRATE for the first time that On reply in support of its motion to dismiss, Defendant argues and Defendant. (Def. Rep. Plaintiff must arbitrate this dispute due to a contract between Plaintiff and surmises that he was not at 4). Plaintiff responds that he does not recall siguing the document, to address an issue raised by shown the entire agreement. (ECF No. 26 at 4). The Court declines its early stages. this is without Defendant improperly on reply. However, because this case is still in te in this case. Ehleiter v. prejudice to any future filing of a properly noticed motion to arbitra tion will normally be Grapetree Shores, Inc., 482 F.3d 207, 223 (3d Cir. 2007) (waiver of arbitra commenced and when both found only where the demand for arbitration came long after the suit omitted). parties had engaged in extensive discovery ) (internal quotations V. PLAINTIFF S MOTIONS TO STRIKE and portions of Defendant s Plaintiff seeks to strike portions of Defendant s Affidavit exhibits, and all speculations on the briefing. (ECF No. 25 at ¶J 1-4 (seeking to strike affidavits, purpose of this motion. )). Under plaintiffs motives for filing the complaint as immaterial for the cient defense or any redundant, Rule 12(f) a party may move to strike from a pleading an insuffi erable discretion in deciding a immaterial, impertinent, or scandalous matter. A court has consid 2340096, at *2 (D.N.J. June 18, 2012) motion to strike. Jones v. U.S., No. 10-cv-3502, 2012 WL will be denied unless the allegations (quotations omitted). Motions to strike are disfavored and ice to one of the parties, or if the have no possible relation to the controversy and may cause prejud ugh Corp./Enhance Sec. Litig., No. allegations confuse the issues in the case. In re Schering-Plo Although Rule 12(f) applies to 08-cv-397, 2009 WL 1410961, at *1 (D.N.J. May 19, 2009). ents by pleadings, it has been applied using this standard to other docum other courts in this district. held that a brief is not a pleading See Jones, 2012 WL 2340096, at *2. However, it has also been v. U.S., No 12-cv-1339, 2013 WL which is properly the subject of a motion to strike. Rivera v, Nat l R.R. Passenger Cow., 829 826396, at *1 (M.D.Pa. April 30, 2013), see also Hrubec gs allowed). F,Supp. 1502, 1506 (N.D.Ill. 1993); Rule 7(a) (listing pleadin the assertions in Defendant s In any event, the Court finds that plaintiff has not shown that 3 the issues in this case. Accordingly, submissions are irrelevant, cause prejudice. or confuse types of material, it may The Court is mindful that, other than certain narrowly defined to dismiss without converting the not consider matters outside the pleadings in deciding a motion Center Properties, Inc. Securities motion into one for summary judgment. In re Rockefeller Litigation, 184 F.3d 280. 287 (3d Cir. 1999). 6 Plaintiff s motion to strike is denied. VI. CONCLUSION Defendant s motion to dismiss will be terminated without prejudice. Plaintiff s motions to strike will be denied. An appropriate order accompanies this opinion. DATED: \& 3°, CLAIRE C. CECCHI, U.S.D.J. 7

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