The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KENNETH MOATS, SR.,
Plaintiff,
vs. Case No. 2:19-cv-2361
Chief Magistrate Judge Elizabeth P. Deavers
HOLZER CLINIC, et al.,
Defendants.
OPINION AND ORDER
On September 25, 2019, Defendants Holzer Clinic, Mary Brown, Rina Garber, Dr.
Valtine, Dr. Scott, and Ryan Finch filed a Motion for Judgment on the Pleadings.1 (ECF No.
40.) On October 4, 2019, Plaintiff filed a letter addressed to Defendants’ counsel and enclosed
the first page of Defendants’ Motion for Judgment on the Pleadings. (ECF No. 47.) The Court
directed Plaintiff to clarify by October 18, 2019, whether he intended the letter to Defendants’
counsel to serve as his response. (ECF No. 48.) To date, Plaintiff has not filed a response to the
Court’s Order. As such, Defendants’ Motion for Judgment on the Pleadings is now ripe for
review. For the reasons that follow, the Motion is GRANTED.
I.
Plaintiff is a pro se litigant who initiated suit against several medical professionals as
well as a health clinic on June 5, 2019. (ECF No. 1.) Plaintiff filed an amended complaint on
June 12, 2019, and a second amended complaint on June 17, 2019. (ECF Nos. 3, 5.) Defendants
argue that Plaintiff has not pled sufficient facts to support any claims, let alone the claims his
1 The Court previously dismissed Defendant Andrew Shae. (ECF No. 45.)
Second Amended Complaint purports to allege: insurance fraud and medical malpractice. (See
Motion for Judgment on the Pleadings, ECF No. 40, at 3–4.) Specifically, Defendants maintain
that “insurance fraud” is a crime and that private individuals are unable to enforce it. (Id. at 4–
5.) As for the medical malpractice claim, Defendants assert that, under Ohio law, a plaintiff
alleging any medical claim must attach an affidavit of merit, which Plaintiff failed to do. (Id. at
5–8.)
II.
Rule 12(c) of the Federal Rules of Civil Procedure allows a party to “move for judgment
on the pleadings.” Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings is reviewed
under the same standard as a motion to dismiss for failure to state a claim under Fed. R. Civ. P.
12(b)(6). Jackson v. Prof’l Radiology, Inc., 864 F.3d 463, 465–66 (6th Cir. 2017.)
To survive a motion for judgment on the pleadings, Plaintiff’s “factual allegations in the
complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and
the plaintiff must plead ‘sufficient factual matter’ to render the legal claim plausible.” Fritz v.
Charter Twp. Of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). To show grounds for relief, Rule
8(a) requires that the complaint contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” The Rule “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleadings
offering mere “labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of
action will not do.’” Id. In fact, “courts ‘are not bound to accept as true a legal conclusion
couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In deciding a Rule 12(c) motion, the Court “must take all the ‘well-pleaded material
allegations of the pleadings of the opposing party’ as true.” Cincinnati Ins. Co. v. Beazer Homes
Invs., LLC, 594 F.3d 441, 445 (6th Cir. 2010) (quoting Rawe v. Liberty Mut. Fire Ins. Co., 462
F.3d 521, 526 (6th Cir. 2006)). But the court “need not accept as true legal conclusions or
unwarranted factual inferences.” Jackson, 864 F.3d at 466 (quoting Mixon v. Ohio, 193 F.3d
389, 400 (6th Cir. 1999)).
Accordingly, “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 678. A claim is plausible where
“plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged–but it has not ‘show[n] – ‘that the pleader is
entitled to relief,’” judgment on the pleadings shall be granted. Id.
Finally, “[p]ro se complaints are held to less stringent standards than formal pleadings
drafted by lawyers and therefore are liberally construed.” Olivares v. Michigan Worker’s Comp.
Agency, No. 18-2369, 2019 WL 2299250, at *2 (6th Cir. Apr. 16, 2019) (internal citation
omitted); see also Walker v. Miller, No. 18-3209, 2018 WL 7575709, at *1 (6th Cir. Oct. 17,
2018) (“But we hold pleadings filed by a pro se litigant ‘to less stringent standards than formal
pleadings drafted by lawyers,’ and [we] may not uphold the dismissal of’ a pleading by a pro se
litigant simply because we think the allegations unlikely.”) (quoting Thomas v. Eby, 481 F.3d
434, 437 (6th Cir. 2007)). However, “‘pro se plaintiffs are not automatically entitled to take
every case to trial.’” Robinson v. Killips, No. 18-1485, 2019 WL 1931873, at *1 (6th Cir. Feb.
22, 2019) (quoting Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)) (affirming in part and
reversing in part dismissal of pro se complaint).
III.
A. Plaintiff’s Second Amended Complaint Fails to Assert Any Viable Claims
Construing Plaintiff’s Second Amended Complaint liberally, the Court surmises that
Plaintiff seeks recovery from Defendants on the basis of insurance fraud and medical
malpractice. In support of his claims, Plaintiff’s states: “Humana Ins. Fraud AARP Mederica
Fraud” and “Overdosing me on high blood, Losartan 25 mg, Hydrochlorot 125 mg, Benazepril
40 mg, Benazepril 20 mg, Sodchloride 1, Sodchloride 1mg.” (Second Amended Complaint, ECF
No. 5, at 5.) As for the relief sought, Plaintiff asks for “the max amount that can be awar[d]ed by
law.” Id.
Plaintiff attached to his Second Amended Complaint 160 pages of documents, letters, and
receipts. “[A] court may consider exhibits attached to the complaint, public records, items
appearing in the record of the case, and exhibits attached to a defendant's motion to dismiss, so
long as they are referred to in the complaint and are central to the claims contained therein.”
Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016). Plaintiff does not identify in his Second
Amended Complaint what the documents are or what claims the documents support. The Court
has reviewed the documents and is unable to discern their relevance to Plaintiff’s purported
causes of action.
The Second Amended Complaint itself does not contain sufficient facts to support any
cause of action. Specifically, Plaintiff does not articulate and the Court is unable to discern from
the various documents sufficient facts to support claims for insurance fraud or medical
malpractice. Even reading the Second Amended Complaint liberally in light of Plaintiff’s pro se
status, judgment on the pleadings is warranted in Defendants’ favor.
B. Insurance Fraud
Defendants assert that Plaintiff’s claim for insurance fraud fails because insurance fraud
is a crime under Ohio law and, as such, private individuals are without power to enforce it.
(Motion for Judgment on the Pleadings, ECF No. 40, at 4–5.) Section 2913.47 of the Ohio
Revised Code, titled “Insurance fraud,” provides:
(B) No person, with purpose to defraud or knowing that the person is facilitating a
fraud, shall do either of the following:
(1) Present to, or cause to be presented to, an insurer any written or oral
statement that is part of, or in support of, an application for insurance, a
claim for payment pursuant to a policy, or a claim for any other benefit
pursuant to a policy, knowing that the statement, or any part of the
statement, is false or deceptive;
(2) Assist, aid, abet, solicit, procure, or conspire with another to prepare or
make any written or oral statement that is intended to be presented to an
insurer as part of, or in support of, an application for insurance, a claim for
payment pursuant to a policy, or a claim for any other benefit pursuant to a
policy, knowing that the statement, or any part of the statement, is false or
deceptive.
(C) Whoever violates this section is guilty of insurance fraud. Except as otherwise
provided in this division, insurance fraud is a misdemeanor of the first degree. . . .
R.C. § 2913(B)–(C).
This statute does not explicitly create an express or implied private right of action for
violation of its provisions. Thus, Plaintiff has failed to state a claim upon which relief may be
granted because he cannot personally sue the Defendants for insurance fraud under Ohio law.
Defendants also argue that Plaintiff has not satisfied the elevated pleading standards
under Fed. Civ. R. 9(b) for allegations of fraud. (Motion for Judgment on the Pleadings, ECF
No. 40, at 4–5.) Under Rule 9(b), “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” As discussed above, Plaintiff’s
Second Amended Complaint does not contain facts sufficient to support any claims against
Defendants. As such, it certainly does not meet the heightened pleading required for an
allegation of fraud. Accordingly, judgment on the pleadings is warranted.
C. Affidavit of Merit
To the extent Plaintiff alleges a claim of medical malpractice, Plaintiff’s Second
Amended Complaint fails to satisfy the requirement under Ohio law that medical claims must be
accompanied by an affidavit of merit. (Motion for Judgment on the Pleadings, ECF No. 40, at
5–8.) Under Ohio Rule of Civil Procedure 10(D)(2), a plaintiff filing a medical malpractice
claim must also file an affidavit of merit from an expert qualified under Ohio Rules of Evidence
601(D) and 702.
The requirement of Ohio Rule 10(D)(2) is substantive in nature. Willis v. U.S., Dep't of
Veteran's Affairs, No. 2:12-CV-867, 2013 WL 3155785, at *3 (S.D. Ohio June 20, 2013)
(finding that “it is well-established that the affidavit requirement is substantive in nature”). The
Rule applies to this Court when, as here, the medical malpractice claim is before the Court based
on diversity jurisdiction. See Gallivan v. United States, No. 4:18CV00545, 2018 WL 4145012,
at *3 (N.D. Ohio Aug. 30, 2018) (“When applying state law, as the Court does here to . . . [a]
medical negligence claim, federal courts apply state substantive law and federal procedural
law.”) (internal citation omitted).
Here, Plaintiff did not file an affidavit of merit with any of the three complaints he has
filed in this action and has not requested an extension of time to file such an affidavit.
Accordingly, Plaintiff’s Second Amended Complaint fails to meet the requirements for a
medical-malpractice claim under Ohio law. Judgment on the pleadings is therefore appropriate
on this claim.
IV.
For the foregoing reasons, Defendants’ Motion for Judgment on the Pleadings (ECF No.
40) is GRANTED. The Clerk is DIRECTED to enter judgment in favor of the Defendants and
to remove this case from the Court’s pending cases list.2
IT IS SO ORDERED.
/s/ Elizabeth A. Preston Deavers______
DATED: October 30, 2019 ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE
2 Although he was dismissed, judgment was not entered in favor of Andrew Shea. The Clerk,
therefore, is DIRECTED to enter judgment in favor of all Defendants.