Opinion

Rubino v. Lackawann County

Court
District Court, M.D. Pennsylvania
Filed
Jan 14, 2020
Cited by
0 cases
Authority
More cited than 29.0%

The opinion

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AUTUMN (BRIAN) RUBINO, :

‘CIVIL ACTION NO. 3:18-CV-1211

Plaintiff, :

:(JUDGE MARIANI)

V.

LACKAWANNA COUNTY, et al.,

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

Here the Court considers “Defendants’, Correctional Care, Inc., and Edward Zaloga,

D.O., Motion Pursuant to Fed. R. Civ. P. 11 to Preclude Physician Diagnosis of Gender

Dysphoria” (Doc. 42). With this motion, Defendants Correctional Care, Inc., and Edward

Zaloga, D.O. (“Moving Defedants’) request that the Court issue an Order that no physician

has diagnosed Plaintiff with gender dysphoria and preclude Plaintiff from presenting any

evidence of any physician diagnosis of gender dysphoria. (Doc. 42 at 3; Doc. 42-1 at 1.)

The basis of this request is Plaintiff's representation in his “Emergency Motion for a

Temporary Restraining Order and a Preliminary Injunction” (“Emergency Motion’) (Doc. 21)

that the need for the administration of Estradioal and Spironolactone while incarcerated

were supported by Plaintiff's “formal|] diagnosis [] by medical doctors as suffering from

gender dysphoria” (Doc. 22 at 2) and his averment in the Emergency Motion that the

“prescriptions and diagnoses were made by Joshua Fleetman, MD, a trained medical doctor

licensed under the laws of the Commonwealth of Pennsylvania” (Doc. 21 J 10). (Doc. 43 at

1-2.) Moving Defendants assert that this information contained in Plaintiffs Emergency

Motion and supporting brief (Docs. 21, 22) is false because Dr. Fleetman testified at his May

20, 2019, deposition that he did not himself make a definitive diagnosis of gender dysphoria

or conduct a full evaluation of Plaintiff but rather relied upon the evaluation and diagnosis of

Licensed Professional Counselor Susan Decker. (Doc. 43 at 4.)

il. LEGAL STANDARD

Federal Rule of Civil Procedure 11 provides in pertinent part that:

(b) Representations to the Court. By presenting to the court a pleading, written

motion, or other paper—whether by signing, filing, submitting, or later

advocating it—an attorney or unrepresented party certifies that to the best of

the person's knowledge, information, and belief, formed after an inquiry

reasonable under the circumstances:

(1) itis not being presented for any improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing

law or by a nonfrivolous argument for extending, modifying, or reversing

existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so

identified, will likely have evidentiary support after a reasonable opportunity for

further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if

specifically so identified, are reasonably based on belief or a lack of

information.

Fed. R. Civ. P. 11(b).

Rule 11 further provides, that “if, after notice and a reasonable opportunity to

respond, the court determines that Rule 11(b) has been violated, the court may impose an

appropriate sanction on any attorney, law firm, or party that violated the rule or is

responsible for the violation.” Fed. R. Civ. P. 11(c)(1). The clear language of the Rule

allows the Court discretion to decide whether to impose sanctions. See also Fed. R. Civ.

P. 11(b), (c) advisory committee's note, 1993 amendment (“Whether a violation has

occurred and what sanctions, if any, to impose for a violation are matters committed to

the discretion of the trial court....”). The Court also “has discretion to tailor sanctions to the

particular facts of the case.” Doering v. Union Cnty. Bd. of Chosen Freeholders, 857 F.2d

191, 194 (3d Cir.1988). “The court has available a variety of possible sanctions to impose

for violations, such as striking the offending paper; issuing an admonition, reprimand, or

censure; requiring participation in seminars or other educational programs; ordering a fine

payable to the court; referring the matter to disciplinary authorities..., etc.” Fed. R. Civ. P.

11 Advisory Committee Notes to 1993 Amendment. “A district court's choice of deterrent is

appropriate when it is the minimum that will serve to adequately deter the undesirable

behavior.” Doering, 857 F.2d at 194 (internal quotation omitted).

The goal of Rule 11 is correction of litigation abuse. Gaiardo v. Ethyl Corp., 835

F.2d 479, 483 (3d Cir. 1987). “Sanctions are to be applied only ‘in the “exceptional

circumstance” where a claim or motion is patently unmeritorious or frivolous.’ ” Ario v.

Underwriting Members of Syndicate 53, 618 F.3d 277, 297 (3d Cir.2010)

(quoting Doering, 857 F.2d at 194).

The standard developed by courts for imposition of sanctions under Rule 11 is

stringent because such sanctions 1) are in derogation of the general American

policy of encouraging resort to the courts for peaceful resolution of disputes; 2)

tend to spawn satellite litigation counter-productive to efficient disposition of

cases; and 3) increase tensions among the litigating bar and between the

bench and the bar.

Doering, 857 F.2d at 194 (internal citations and quotation marks omitted).

To comply with the requirements of Rule 11(b), “counsel must conduct a reasonable

investigation of the facts and a normally competent level of legal research to support the

presentation.” Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988) (internal

quotation omitted). “In scrutinizing a filed paper against these requirements, courts must

apply an objective standard of reasonableness under the circumstances. The wisdom of

hindsight should be avoided; the attorney's conduct must be judged by what was

reasonable to believe at the time the pleading, motion, or other paper was submitted.” /d.

(internal citations and quotation omitted). As stated in Teamsters Local Union No. 430 v.

Cement Exp., Inc., 841 F.2d 66, 68 (3d Cir. 1988), “[t]he standard for testing conduct under

Rule 11 is reasonableness under the circumstances.” The Third Circuit and the Advisory

Committee Notes to Rule 11 have set forth certain factors useful in determining whether an

attorney's conduct has violated Rule 11. Those factors include:

[H]ow much time for investigation was available to the signer; whether he had

to rely on a client for information as to the facts underlying the pleading, motion,

or other paper; whether the pleading, motion, or other paper was based on a

plausible view of the law; [ ] whether he depended on forwarding counsel or

another member of the bar; [and] whether [one] is in a position to know or

acquire the relevant factual details.

Fed. R. Civ. P. 11 Advisory Committee Notes to 1983 Amendment; CTC Imports & Exports

v. Nigerian Petroleum Corp., 951 F.2d 573, 578 (3d Cir. 1991). The burden of showing that

sanctions are warranted rests with the moving party. Gary v. Braddock Cemetery & Consol

Energy, 334 F. App’x 465, 467 (3d Cir. 2009); Vilkofsky v. Specialized Loan Servicing, LLC,

Civ. A. No. 2:16-CV-01291-NBF, 2018 WL 2937693, at *9 (W.D. Pa. June 12, 2018) (‘to

establish a Rule 11 violation the burden of proof and persuasion rests on the party moving

for sanctions’) (internal quotation omitted).

Ill. ANALYSIS

Moving Defendants conclude that the inaccuracies identified in Plaintiff's Emergency

Motion and supporting brief regarding Dr. Fleetman’s diagnosis of gender dysphoria and his

prescribing of related drugs warrant sanctions because they evidence a lack of the pre-filing

inquiry required under Rule 11 (Doc. 43 at 7 (citing Live v. Tubb Stone Industries, Inc., 788

F.2d 151, 157 (3d Cir. 1986)), and the inaccuracies show that the filings do not satisfy the

applicable reasonable attorney standard, i.e., “whether a reasonable attorney would have

acted in a particular way” (id. (citing Griggs v. BIC Corp., 844 F. Supp. 190 (M.D. Pa.

1994)). Plaintiff responds that sanctions are not warranted because the averments found

objectionable were supported by the medical records and depositions. (Doc. 44 at 2.) The

Court concludes that Moving Defendants have not satisfied their burden of showing that

Rule 11 was violated such that sanctions would be properly imposed.

Plaintiff avers that the circumstances of this case show that sanctions are not

warranted as the record

clearly indicates that Dr. Fleetman saw Plaintiff, assessed an Endocrine

Disorder, and prescribed hormone medications to Plaintiff. First of all, the

Motion clearly alleges that Dr. Fleetman diagnoses an Endocrine Disorder. This

is specifically taken from the medical records, providing a reasonable basis for

Plaintiff to allege it. The medical records also specifically show a diagnosis of

gender dysphoria. See Exhibit A at ALDER21 - ALDER22; see also Exhibit C

at 5, p. 17 (Gender Identity Disorder is the same thing as Gender Dysphoria).

It was not until Dr. Fleetman’s deposition on May 20, 2019, that the

parties all learned that Dr. Fleetman did not make the initial diagnosis of gender

dysphoria; however, he did adopt and treat the diagnosis. Plaintiff had a

reasonable basis to allege it based on the medical records diagnosing gender

dysphoria where Dr. Fleetman was the treating physician. Dr. Fleetman

confirmed this. Dr. Fleetman testified that he treated Plaintiff and that his

predecessor at his clinic, Nurse Practitioner Bock, was the person who made

the actual diagnosis of gender dysphoria and that Ms. Bock was qualified to

make that diagnosis. Exhibit B at 16, p. 59-60. Dr. Fleetman relied on her

diagnosis. Exhibit B at 16, 58-59. He also testified that the hormone medication

prescribed to Plaintiff was medically necessary. Exhibit B at 16, pp. 58-59.

Therefore, based on this and the medical record, Plaintiff [sic] averment was

accurate, and Plaintiff had a reasonable basis at the time for alleging it.

Ms. Bock, a certified nurse practitioner, was deposed on July 12, 2019.

See Exhibit C. Nurse practitioners are qualified to make the diagnosis of gender

dysphoria. Exhibit C at 3-4, pp. 9-10; p. 13, pp. 46-49. Ms. Bock actually

diagnosed Plaintiff with gender dysphoria. Exhibit C at 6, pp. 18-19; at 7, p. 2;

at 7, pp. 27-28.

(Doc. 44 at 2-3 (citing Docs. 44-1, 44-2, 44-3.)

On the basis of this information of record, Plaintiff concludes that the

representation that Dr. Fleetman made the diagnosis was reasonably based on

the fact available at the time it was made. It was taken directly from the medical

record. No one was aware that a nurse practitioner, rather than a physician,

made the diagnosis until the two aforementioned depositions were taken in this

case. Furthermore, this distinction is not relevant. As both deponents testified,

a nurse practitioner is qualified in making the diagnoses and doctors rely on

these diagnoses in rendering treatment. While Defendant's complaint [sic]

about counsel's failure to file a diagnosis with the court, the sole reason for that

is that the [sic] we were unable to procure additional records, other than the

alder records, or depositions until later in the case. Furthermore, the

emergency nature of the motion began to fade as it became expected that

Plaintiff would be released from the prison.

(Id. at 3.)

Judging the conduct of Plaintiff's counsel by what was reasonable to believe at the

time the Emergency Motion in this matter was submitted, the Court finds that Moving

Defendants have presented no compelling factual basis on which to find that Plaintiff and

Plaintiff's counsel knew or should have known that their representations regarding Dr.

Fleetman’s diagnosis and medication prescriptions were inaccurate. While the Court does

not condone Plaintiff's counsel's dilatory conduct related to the submission of material to the

Court and Defendants (see, e.g., Doc. 29 at 1-2), under the specific circumstances of the

averments made regarding Plaintiff's gender dysphoria diagnosis in the Emergency Motion

and supporting brief (Docs. 21-22) and the related information contained in medical records

and relevant depositions (Docs. 44-1, 44-2, 44-3), the Court concludes that Moving

Defendants have not shown that a reasonable attorney would not have included the

information they find objectionable in motion filings. This is so given that Dr. Fleetman was

Plaintiff's treating physician and the records contained a diagnosis of gender dysphoria for

which Dr. Fleetman continued to prescribe Estradioal and Spironolactone which had

originally been prescribed by a competent practitioner. (See Doc. 44 at 2-3 (citations

omitted).) No evidence suggests that Plaintiff's counsel knew at the time of filing the

Emergency Motion that Plaintiff's treating physician had not made the original diagnosis of

the condition at issue or been the original prescriber of the medications at issue. Further,

no evidence suggests that filing of the Emergency Motion and inclusion of information

related to Dr. Fleetman should be construed as litigation abuse, see Gaiardo, 835 F.2d at

483, or that the Emergency Motion (Doc. 21), though ultimately denied without prejudice

(Doc. 29), was “patently unmeritorious or frivolous,” Ario, 618 F.3d at 297. This conclusion

is bolstered by the fact that Moving Defendants did not file a reply brief, and, therefore, they

did not counter the assertions contained in Plaintiffs brief regarding Dr. Fleetman’s

treatment of Plaintiff, his prescriptions for the medications at issue, and Nurse Practitioner

Bock’s diagnosis upon which Dr. Fleetman relied (Doc. 44 at 2-3). Thus, Moving

Defendants pending Motion (Doc. 42) is properly denied.

IV. CONCLUSION

For the reasons discussed above, Defendants’, Correctional Care, Inc., and Edward

Zaloga, D.O., Motion Pursuant to Fed. R. Civ. P. 11 to Preclude Physician Diagnosis of

Gender Dysphoria (Doc. 42) will be denied. An appropriate Order is filed simultaneously

with this Memorandum Opinion. GD

LN BAY,

Robert D. Mariani

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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