Thomas v. Honorhealth DNC

• Court: District Court, D. Arizona
• Decided: July 1, 2024
• Docket: 2:23-cv-01471
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Sylvia Lynne Thomas, No. CV-23-01471-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 HonorHealth dba HonorHealth Scottsdale Osborn Medical Center, et. al., 13 Defendants. 14 15 Pending before the Court is Defendant Southwestern Eye Center, LLC’s (“SWEC”) 16 Amended Motion to Dismiss (Doc. 39). Plaintiff, Sylvia Lynne Thomas, filed a response 17 (Doc. 92) and Defendant filed a reply (Doc. 97). The Court has considered the pleadings 18 and relevant case law and will grant the Motion. 19 I. BACKGROUND 20 This Motion stems from what Plaintiff alleges was healthcare and/or financial 21 misconduct by several healthcare providers and institutions. (Doc. 1 at 10.) At issue here 22 is Plaintiff’s claims against Defendant SWEC. Although the Complaint is not entirely 23 clear, it appears that Plaintiff alleges that a SWEC provider fell below the standard of care 24 during one of her appointments. (Id. at 35 ¶¶ 77(a); 38 ¶ 85; 50 ¶ 134.) Specifically, 25 Plaintiff alleges that during one of her January 2020 procedures, SWEC caused a “retinal 26 macula injury” and perforated retina, and that she learned about her injury in March 2021. 27 (Id. at 35 ¶ 77(a);45 ¶ 108.) Plaintiff further alleges that SWEC concealed the injury, but 28 that she nonetheless discovered it. (Id. at ¶ 77.) She claims SWEC billed her for this 1 procedure and related services. (Id. at 61 ¶ 178.) Plaintiff contends that this medical 2 negligence is “inextricably linked” to her intentional infliction of emotional distress 3 (“IIED”) and conspiracy claims, and that these actions were part of an intentional 4 discriminatory scheme between SWEC and the other named providers to prevent her from 5 pursuing a writ of certiorari to the United States Supreme Court for a review of the 6 dismissal of her antitrust lawsuit against the Arizona State Bar. (Id. at 14; 16 ¶¶ 29–30; 7 32¶ 69; 39 ¶ 86;65 ¶ 200.) 8 Plaintiff alleges that because of the Defendants’—including SWEC—she 9 experienced several serious health ailments and was unable to engage in “global trade 10 commerce opportunities.” (Id. at 63 ¶¶ 186–187.) Based on these actions Plaintiff brings 11 eight claims1 against SWEC: “res ipsa loquitur” (Count 1); negligence (Count 2); negligent 12 supervision (Count 3); “intentional abandonment” (Count 4); violations of federal 13 regulations health insurance regulations (Count 5); antitrust violations (Count 7); 14 conspiracy to violate civil rights (Count 8); and intentional infliction of emotional distress 15 (“IIED”) (Count 9). 16 II. LEGAL STANDARD 17 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 18 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 19 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 20 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 21 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This 22 requirement is met if the pleader sets forth “factual content that allows the court to draw 23 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 24 v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of 25 action, supported by mere conclusory statements, do not suffice.” Id. Plausibility does not 26 equal “probability,” but requires “more than a sheer possibility that a defendant has acted 27 unlawfully.” Id. A dismissal under Rule 12(b)(6) for failure to state a claim can be based 28 1 The Complaint does not identify “Count 6.” 1 on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a 2 cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 3 1988). A complaint that sets forth a cognizable legal theory will survive a motion to 4 dismiss if it contains sufficient factual matter, which, if accepted as true, states a claim to 5 relief that is “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 6 570). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 7 liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to 8 relief.’” Id. (quoting Twombly, 550 U.S. at 557). 9 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 10 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 11 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 12 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 13 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 14 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 15 outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. See United States v. 16 Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider materials— 17 documents attached to the complaint, documents incorporated by reference in the 18 complaint, or matters of judicial notice—without converting the motion to dismiss into a 19 motion for summary judgment.” Id. at 908. 20 III. DISCUSSION 21 Defendant SWEC moves to dismiss counts one, two, three, four, eight, and nine 22 because Plaintiffs’ claims are outside Arizona’s respective statute of limitations. (Doc. 39 23 at 3.) SWEC moves to dismiss Count five for lack of standing and count seven for lack of 24 subject matter jurisdiction. (Id. at 4–6.) The Court will walk through each of these 25 arguments in turn. 26 A. Counts One, Two, Three, Four, Eight, and Nine 27 Plaintiff brings four claims all asserting various negligence claims against SWEC: 28 “res ipsa loquitor” (Count 1); negligence (Count 2); negligent supervision (Count 3); 1 intentional abandonment (Count 4); and intentional infliction of emotional distress (Count 2 9). SWEC argues these claims should each be dismissed because they are outside of 3 Arizona’s two-year statute of limitations period for medical malpractice claims. (Doc. 39 4 at 3.) 5 Under Arizona law “there shall be commenced and prosecuted within two years 6 after the cause of action accrues, and not afterward . . . injuries done to the person of 7 another including causes of action for medical malpractice . . . .” Ariz. Rev. Stat. § 12- 8 542(1). A cause of action begins accruing when the plaintiff knew or reasonably should 9 have known that the malpractice and subsequent injury occurred. See Lawhon v. L.B.J. 10 Institutional Supply, Inc.,765 P.2d 1003, 1007 (Ariz. Ct. App. 1988) (“[A] cause of action 11 ‘accrues’ when the plaintiff discovers or by the exercise of reasonable diligence should 12 have discovered that he or she has been injured by a particular defendant’s negligent 13 conduct.”) Essentially, the period begins running once a plaintiff “knows or should have 14 known of both the what and who elements of causation.” Id. Plaintiff need not know about 15 the full extent of injuries for the clock to start ticking. See Kaufman v. Jesser, 884 F. Supp. 16 2d 943,957 (D. Ariz. 2012). 17 Here, Plaintiff alleges SWEC was negligent and perforated Plaintiff’s retina in 18 January of 2020, and that they concealed this negligence. In her Complaint she states that 19 she identified the alleged negligence in March 2021. (Doc. 1 at 35 ¶ 77(a);45 ¶ 108.) As 20 Defendant notes, this is when her claim of action began accruing, and the statute of 21 limitations began running. (Doc. 39 at 4.) Plaintiff concedes the statute of limitations 22 period but appears to argue that it should be tolled because she had not discovered that 23 perforation would lead to additional damages from an infection until later. (Doc. 92 at 14.) 24 This does not alter the Court’s application of the limitations period. As previously noted, 25 “[t]he discovery rule does not hold the statute of limitations in abeyance until an injured 26 party is aware of the full extent of his or her damages.” Ryba v. Town of Marana, No. 27 4:16-CV-780-CKJ, 2017 WL 11249578, at *3 (D. Ariz. June 22, 2017). That said, even if 28 this “discovery rule” did apply, it only protects from when plaintiff had “at least a 1 minimum requisite knowledge sufficient to identify that a wrong occurred and caused 2 injury.” Id. (cleaned up). 3 Despite Plaintiff’s arguments that Defendant actively concealed the injury leading 4 to a late discovery, as Defendant notes in its reply brief, these claims are unsupported by 5 facts specific to SWEC. Id. Further, a Plaintiff does not “need not know all the facts 6 underlying a cause of action to trigger accrual.” Doe v. Roe, 955 P.2d 951, 961 (Ariz. 7 1998). Although the Complaint is generally unclear especially as to SWEC, it is clear that 8 Plaintiff alleges that she discovered the alleged macular perforation in March 2021. (Doc. 9 1 at 35 ¶ 77(a); 36 ¶ 85.) Plaintiff filed her Complaint in July 2023 which is approximately 10 four months past the two-year limitations period. (Doc. 1.) Because these claims were all 11 filed outside of the limitations period, they must be dismissed. 12 Plaintiff also brings a claim for conspiracy to interfere with civil rights under 42 13 U.S.C. § 1985 (count eight). (Doc. 1 at 65.) Although it is unclear exactly what Plaintiff 14 is alleging, it appears she is alleging that all the Defendants acted in concert through 15 medical negligence to injure her, thus depriving her of certain civil rights protected by 16 statute. (Doc. 1 at 65 ¶¶ 200–66.) Like with the malpractice claims, Defendant argues this 17 claim should also be dismissed as it was filed outside Arizona’s applicable two-year statute 18 of limitations. (Doc. 39 at 3.) See e.g., Ariz. Rev. Stat. § 12-542. The Court agrees. 19 McDougal v. Cnty. of Imperial, 942 F.2d 668, 673 (9th Cir. 1991) (finding that like section 20 1981 and 1983 claims, section 1985 claims are also subject to the applicable statute of 21 limitations for state personal injury claims). 22 Accordingly, as counts one through four and counts eight and nine are outside the 23 statute of limitations, the Court will dismiss these claims with prejudice. 24 B. Count Five 25 Plaintiff also brings claim(s) against SWEC for violation of various health insurance 26 regulations outlined in 42 U.S.C. § 300gg. Plaintiff alleges that “there is a clear indication 27 of legislative intent, explicit or implicit, either to create a private right of action remedy 28 under each statute.” (Doc. 1 at 58 ¶ 166.) Alternatively, Defendant argues this claim should 1 be dismissed because there is no private right of action under these regulations. (Doc. 39 2 at 4.) The Court agrees. Two circuits have already recognized that there is no private right 3 of action for enforcement of the two subsections of § 300gg Plaintiff attempts to utilize 4 here. See Grossman v. Directors Guild of Am., Inc., No. EDCV 16-1840-GW(SPX), 2017 5 WL 5665024, at *8 (C.D. Cal. Mar. 6, 2017) (finding no private right of action to enforce 6 § 300gg–19); Haller v. U.S. Dept. of Health and Human Services, No. 22-3054, 2024 WL 7 290440, at *1 n.1 (2d Cir. Jan. 23, 2024) (finding that the district Court correctly 8 determined providers had no private right of action under § 300gg-111). 9 Additionally, Plaintiff failed to address why this claim should not be dismissed in 10 her response, which constitutes waiver of this claim. See Green v. Ariz. Bd. of Regents, 11 No. CV-18-04665-PHX-SPL, 2020 WL 2512759, at *4 (D. Ariz. May 15, 2020) (“Failure 12 to respond to an argument set forth in a motion to dismiss constitutes waiver of the issue 13 by the party opposing the motion and is an adequate basis for granting the motion to 14 dismiss.”). Further, even if Plaintiff had addressed this claim in her response, she fails to 15 plead any facts specific to SWEC as to this claim. Accordingly, the Court will dismiss 16 Count five with prejudice. 17 C. Count Seven 18 Finally, in Count seven Plaintiff alleges “antitrust constitutional violations.” (Doc. 19 1 at 64.) Specifically, Plaintiff alleges the Defendants worked in concert to violate the 20 Sherman Antitrust Act, 15 U.S.C. § 1-2, the Clayton Antitrust Act, 15 U.S.C. § 12-27, and 21 both the Commerce Clause and the Supremacy Clause of the Constitution. (Doc. 1 at 64.) 22 Although never clearly stated, she appears to argue that the Defendants through their 23 medical negligence intentionally formed a conspiracy to prevent her from practicing law 24 and having her claims against the Arizona Bar Association for their alleged wrongful 25 suspension of her license to practice law heard before the United States Supreme Court. 26 (Doc. 1 at 8 ¶ 10; 34 ¶ 76; 39 ¶ 86;64.) 27 Defendant argues that this argument is so frivolous that the Court does not have 28 subject matter jurisdiction over it. (Doc. 39 at 5.) The United States Supreme Court has 1 noted that “federal courts are without power to entertain claims otherwise with their 2 jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of merit,’ 3 ‘wholly insubstantial,’ [or] ‘obviously frivolous.’” Hagans v. Lavine, 415 U.S. 528, 536– 4 37 (1974) (collecting cases). Accordingly, Defendant argues the Court should dismiss 5 Count seven as it does not actually raise a serious federal question as required for this Court 6 to have jurisdiction. (Doc. 39 at 6.) 7 The Court need not even go this far to dismiss Plaintiff’s Complaint. Despite 8 Plaintiff’s contention, even if taken as true, she fails to allege facts supporting that SWEC 9 “gravely suppressed the Plaintiff’s USMCA-NAFTA Appendix 1603.D.1 global niche 10 market competitive advantage” or “create[d] and institutionalize[d] a sub moral (single) 11 angry Black female without prioritized humility imagery characterization of the Plaintiff 12 to intimidate her familial witnesses,” or “invidiously worked unjustified governmental 13 retaliation” or “usurped and rebranded the Plaintiff’s . . . innovation activity as a public 14 program” (Doc. 92 at 5–7.) In fact, the only facts specific to SWEC are: (1) that they are 15 a healthcare provider; (2) SWEC staff performed a an epiretinal membrane vitrectomy on 16 Plaintiff’s right eye and a vitreous tap to relieve pressure in Plaintiff’s right eye; (3) that an 17 SWEC employee joked with Plaintiff about her next appointment being a “date”; (4) that 18 her care with them ended in April 2020; (5) that she was billed for these services; (6) and 19 that SWEC allegedly perforated her retina and concealed this injury. (See generally Doc. 20 1.) None of these facts, even taken as true, implicate any of the federal antitrust law laws, 21 let alone violations, that Plaintiff alleges. 22 D. Leave to Amend 23 Federal Rule of Civil Procedure 15(a) requires that leave to amend be “freely give[n] 24 when justice so requires.” Leave to amend should not be denied unless, “the proposed 25 amendment either lacks merit or would not serve any purpose because to grant it would be 26 futile in saving the plaintiff’s suit.” Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 27 458, 459 (9th Cir. 1986). Therefore, “a district court should grant leave to amend even if 28 no request to amend the pleading was made, unless it determines that the pleading could 1 || not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 2|| 1127 (9th Cir. 2000) (cleaned up). Here, the allegation of other facts will not cure the 3 || counts one, two, three, four, eight, and nine because they are outside the applicable statute 4|| of limitations. Similarly, no additional facts will cure count five. Count seven is also incurable as Plaintiff has not, and cannot, allege facts sufficient to implicate the 6 || aforementioned antitrust laws. The only concrete harm Plaintiff alleges Defendant SWEC engaged in is purely related to its alleged medical negligence. No amount of amendment 8 || will be able to link this alleged act to a conspiracy to violate antitrust laws or keep her from 9|| practicing law. 10] IV. CONCLUSION 11 For the reasons discussed above, 12 IT IS HEREBY ORDERED granting Defendant’s Motion to Dismiss (Doc. 39). 13 || Counts one, two, three, four, five, seven, eight, and nine will be dismissed with prejudice. 14 IT IS FURTHER ORDERED directing the clerk of the court to enter judgment in 15 || accordance with this Order, and dismiss defendant Southwestern Eye Center, LLC from the case. 17 Dated this Ist day of July, 2024. 18 19 Le = “ > oO 21 United States ‘District Jt udge 22 23 24 25 26 27 28

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