Hensley v. Engler

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:24-CV-273-FL

JASON HENSLEY, )

)

Plaintiff, )

)

v. )

)

JOHN A. ENGLER M.D.; MEGAN E. ) ORDER

GOODING P.A.; NORTH CAROLINA )

MEDICAL BOARD; and UNC HEALTH )

PARTNERS LLC Rex UNC Hospital )

Partners, )

)

Defendants. )

This matter is before the court upon defendants’ motions to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). (DE 17, 28). The motions have been

briefed fully, and in this posture the issues raised are ripe for ruling. For the following reasons,

the motions are granted.

STATEMENT OF THE CASE

Plaintiff commenced this action May 15, 2024, pro se, arising out of allegedly improper

medical treatment of plaintiff by defendants John A. Engler, M.D. (“Engler”), Megan E. Gooding

P.A. (“Gooding”), and UNC Health Partners LLC/Rex UNC Hospital Partners (the “Hospital”)

(collectively, the “hospital defendants”), and allegedly improper response by defendant North

Carolina Medical Board (the “Board”) to a complaint by plaintiff. Plaintiff asserts on the face of

the complaint claims for: 1) “Violation of Human Civil Rights in Consent,” 2) “Acts of Cruel and

Unusual Punishment,” 3) “Actions in Negligence from Doctors,” 4) “Failure in Medical Standards

of Care,” 5) “Failure to Perform Doctor Duties,” 6) Failure in Supervision of Medical Practices

and Medical Duties,” and 7) “Failure in Administration of Medical Faculties and Oversite

Practices in Surgery.” (Compl. (DE 1) at 1). Plaintiff seeks compensatory and punitive damages

from all defendants, as well as injunctive relief from the Board.

The hospital defendants filed the instant motion to dismiss for lack of subject matter

jurisdiction and for improper service. Defendant Board separately filed its motion to dismiss for

lack of subject matter jurisdiction and for failure to state a claim, and alternatively to require

plaintiff to make a more definite statement. Thereafter, plaintiff responded in opposition.

STATEMENT OF FACTS

The facts alleged in the complaint may be summarized as follows. “On July 20, 1988,

[plaintiff], at the age of 10 years old, was in a major truck accident that caused many body injuries,”

including injury to his spine, “between the L5-S1 spine vertebrae,” requiring “Anterior Lumbar

Interbody Fusion (A.L.I.F.) surgery and . . . a donor bone as a retaining plate with small metal pins

to realign [plaintiff’s] spine correctly.” (Compl. p. 10).

In September 2022, plaintiff saw Gooding and Engler for medical treatment “for pain

issues and problems dealing with a pinched nerve in his lower back (Posterior L5-S1 spine area).”

(Id. at 11). After initial treatment failed to relieve plaintiff’s symptoms, plaintiff “researched

minimal invidious surgery options to correct his back problem,” and suggested a “‘Co-flex’ spine

implant device to Gooding and Engler. (Id. at 12). Gooding allegedly explained, however “that

he only did (invidious) Postier [sic] Lumbar Interbody Fusion (P.L.I.F.) lower back surgery using

metal rods and screws in the bones.” (Id. at 13). Plaintiff objected to this approach, and instead

agreed that Engler “could only do Laminectomy and Diskectomy surgery to free the space around

the posterior pinched nerves.” (Id.).

In October 2022 plaintiff went to the hospital to have scheduled surgery for “Laminectomy

and Diskectomy.” (Id. at 15). Defendant Engler allegedly assured plaintiff that the surgery was

so limited, and with that understanding and his own research, plaintiff consented to the surgery.

However, according to the complaint, the hospital defendants “started doing an unknown surgery

procedure[]” on plaintiff, including allegedly grinding, drilling, chiseling, and hammering “on the

left side of the Anterior front spine L5-S1 vertebral bones until breaking off the Anterior Lumbar

Interbody Fusion bone plate,” as well as the pins from the L5 and S1 vertebral bones previously

installed in 1988. (Id. at 17). This surgery allegedly caused release of bone marrow into the body,

as well as “spine pressing against nerves, plus causing narrowing of spinal canal.” (Id. at 18).

According to the complaint, plaintiff’s body went into shock and the hospital defendants

decided “that surgery could not be continued with the rest of the unknown procedure surgery.”

(Id. at 19). The procedure that was completed allegedly caused “vertebrae to move,” and “disc

shift in the spine,” as well as “spondylolithesis,” and plaintiff had an extended recovery period.

(Id.). Defendant hospital allegedly “did not know what had happened, or why the surgery was not

done as planned, stopped, or went as it did.” (Id. at 20).

Defendants Engler and Gooding allegedly “misled and lied to [plaintiff] about his medical

diagnosis and medical treatment, plus medical fraud to his billing the Insurance company for work

not done to the right side.” (Id. at 22). Defendant hospital allegedly gave them “access to its

faculties [sic] without any supervision or oversite.” (Id. at 23).

In December 2022, plaintiff complained about his surgery at an appointment with

defendant Engler, but plaintiff received no explanation by Engler. He then called defendant

hospital to speak with a supervisor of Engler and Gooding, stating: “something went wrong with

my surgery and [I’d] like to make a complaint. I can see the problem on my MRI.” (Id. at 27).

The supervisor allegedly laughed, and plaintiff “hung up because she thought his health concerns

were a joke.” (Id. at 27). Plaintiff went in person to defendant hospital January 2023, to “file a

complaint,” and staff left plaintiff with the understanding that a supervisor would be in contact

with him. (Id. at 28). In March 2023, plaintiff received a letter from defendant hospital suggesting

that his complaint “was closed and nothing could be done.” (Id. at 29). Plaintiff called the hospital

to explain that the “doctors did the wrong surgery,” but the supervisor at the hospital did not

understand or provide any assistance. (Id. at 30).

In the meantime, in February 2023, plaintiff “felt he needed to file a complaint with the

[Board], to report his surgery concerns and injuries from his unknown surgery.” (Id. at 29). In

April 2023, plaintiff “received an email about his complaint” to the Board, noting only that plaintiff

could receive further updates about the complaint via email. (Id. at 30). Having provided medical

records to the Board and hearing nothing back, plaintiff commenced an action in Wake County,

with the Board as one of the defendants, in case No. 23CV-24845. In October 2023, the Board

sent plaintiff a letter noting, inter alia, that “there was no prosecutable violation of the Medical

Practice Act in this instance that would lead to a restriction of [defendant] Engler’s license to

practice medicine.” (Compl. Ex. L (DE 1-13)). Further, “[e]ven though this case did not result in

public action, there may have been private actions that cannot be disclosed to the public.” (Id.).

According to the complaint, the actions of defendants Engler and Gooding caused “forever

damage and injuries to the Plaintiff’s Body and stopped his Life in Income and Business losses of

money with unnecessary medical expenses for life.” (Compl. at 36). Prior to his surgery, plaintiff

was a cattle farmer, operating and working a farm, as well as a volunteer for a nonprofit, all

activities he is unable to do following the surgery “without or under extreme pain and muscle

spasms,” with his “medical condition getting worse every day.” (Id. at 34).

COURT’S DISCUSSION

A. Standard of Review

A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction, and the plaintiff

bears the burden of showing that federal jurisdiction is appropriate when challenged by the

defendant. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v.

Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either 1) assert the complaint fails

to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of

subject matter jurisdiction in fact, apart from the complaint. Bain, 697 F.2d at 1219. Where a

defendant raises a “facial challenge[] to standing that do[es] not dispute the jurisdictional facts

alleged in the complaint,” the court accepts “ the facts of the complaint as true as [the court] would

in context of a Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-

pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not

consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further

factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).1

1 Internal citations and quotation marks are omitted from all citations unless otherwise specified. Where the

court does not reach that part of the hospital defendants’ motion based upon insufficient service of process, the court

does not set forth here the standard of review for motions under Rule 12(b)(5).

B. Analysis

1. Principles of Subject Matter Jurisdiction

“The Federal courts are courts of limited jurisdiction and are empowered to act only in

those specific instances authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir.

1968). “A court is to presume, therefore, that a case lies outside its limited jurisdiction unless and

until jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274 (4th

Cir. 2008). “[W]hen the inquiry involves the jurisdiction of a federal court,—the presumption in

every stage of a cause being that it is without the jurisdiction of a court of the United States, unless

the contrary appears from the record.” Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337

(1895).

“Furthermore, the complaint must state on its face the grounds for its jurisdiction.”

Bowman, 388 F.2d at 760. “[T]he facts providing the court jurisdiction must be affirmatively

alleged in the complaint.” Pinkley, Inc. v. City of Frederick, MD., 191 F.3d 394, 399 (4th Cir.

1999). “These rules are applicable to diversity as well as to the ‘Federal question’ jurisdiction of

the District Courts.” Bowman, 388 F.2d at 760. “The well-pleaded complaint rule requires that

federal question jurisdiction not exist unless a federal question appears on the face of a plaintiff’s

properly pleaded complaint.” Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 370 (4th

Cir. 2001).

“Congress has given the lower federal courts jurisdiction to hear only those cases in which

a well-pleaded complaint establishes either that federal law creates the cause of action or that the

plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.”

Interstate Petroleum Corp. v. Morgan, 249 F.3d 215, 219 (4th Cir. 2001). “‘The mere assertion of

a federal claim is not sufficient to obtain jurisdiction under 28 U.S.C. § 1331.” PEM Entities LLC

v. Cnty. of Franklin, 57 F.4th 178, 183 (4th Cir. 2023). For example, courts have “sometimes

dismissed suits brought under [42 U.S.C.] Section 1983 ‘because the federal claims were

insubstantial and were pretextual state law claims.’” Id. (quoting Lovern v. Edwards, 190 F.3d

648, 654 (4th Cir. 1999)). “[A] complaint alleging constitutional violations should be dismissed

for lack of subject matter jurisdiction . . . where the constitutional allegations are wholly

insubstantial or without merit, or foreclosed by prior cases which have settled the question.” E.

Band of Cherokee Indians v. Donovan, 739 F.2d 153, 159 (4th Cir.1984). This is especially

important in circumstances “where a wholly frivolous federal claim serves as a pretext to allow a

state law issue, the real focus of the claim, to be litigated in the federal system.” Davis v. Pak, 856

F.2d 648, 651 (4th Cir.1988).

“Pro se complaints are to be read liberally.” White v. White, 886 F.2d 721, 724 (4th Cir.

1989). “However, liberal construction does not require [the court] to attempt to discern the

unexpressed intent of the plaintiff, but only to determine the actual meaning of the words used in

the complaint.” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013). Liberal construction also

“does not undermine the requirement that a pleading contain more than labels and conclusions.”

Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008).

2. Lack of Subject Matter Jurisdiction

Applying the foregoing principles, plaintiff’s complaint must be dismissed for lack of

subject matter jurisdiction. The complaint on its face recites state law claims for medical

malpractice and torts against the hospital defendants in their provision of medical care to plaintiff,

as well as administrative claims against the Board. These claims do not demonstrate “either that

federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on

resolution of a substantial question of federal law.” Interstate Petroleum Corp., 249 F.3d at 219.

Further, while the complaint includes references to “civil rights” and the “Federal

Constitution,” (e.g., Compl. pp. 1-2, 5, 37-38), these mere references to federal law, even if they

can be construed as an assertion of a federal claim, are “not sufficient to obtain jurisdiction under

28 U.S.C. § 1331.” PEM Entities LLC, 57 F.4th at 183.2 Indeed, under the circumstances of this

case, where plaintiff brought a state court action on the basis of the same facts, (see Def. Board

Mem. Ex. B (DE 29 at 58-73) (attaching complaint in No. 23CV024845), which was dismissed on

defendants’ motions to dismiss in state court, (id. Ex. C (DE 20 at 74-75)), the scattered references

to federal claims demonstrably “serve[] as a pretext to allow a state law issue, the real focus of the

claim, to be litigated in the federal system.” Davis, 856 F.2d at 651.

Plaintiff’s arguments to the contrary in his opposition to the instant motions to dismiss are

unavailing. Plaintiff suggests, for example, that his claims should be characterized as arising under

federal law, comprising “cruel and unusual punishment against [the] Eighth Amendment,”

violation of Equal Protection Clause to the Fourteenth (14th) Amendment and First (1st)

Amendment),” the “Ninth (9th) Amendment,” and “Federal Courts to Answer a Conflict between

the North Carolina General Statutes and Bill of Rights.” (Pl’s Opp. (DE 32) at 1). He also includes

a reference to 42 U.S.C. §§ 1983 and 2000e in his civil cover sheet. (DE 1-17). However, the

claims suggested fail on multiple fundamental levels, which demonstrate that the claims asserted

do not meet the standard to establish federal subject matter jurisdiction.

As an initial matter, to bring a constitutional or civil rights claim under § 1983, a plaintiff

“must show that the alleged deprivation was committed by a person acting under color of state

law.” West v. Atkins, 487 U.S. 42, 48 (1988). “[M]erely private conduct, no matter how

discriminatory or wrongful, is excluded from the reach of § 1983.” Cox v. Duke Energy Inc., 876

2 Diversity jurisdiction also is lacking because the parties are not alleged to be “citizens of different States.”

28 U.S.C. § 1332(a)(1).

F.3d 625, 632–33 (4th Cir. 2017). “A plaintiff cannot invoke § 1983 simply because a private

actor is regulated and funded by the State.” Dowe v. Total Action Against Poverty in Roanoke

Valley, 145 F.3d 653, 655 (4th Cir. 1998); see, e.g., Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d

176, 179 (4th Cir. 2009) (holding that county hospital was not a state actor, even though board

members are appointed, in part, by the state). Because of this rule, all of plaintiff’s asserted federal

claims against the hospital defendants, who are not alleged to be state actors, fail at the outset.

Plaintiff’s suggestion of federal claims against the Board fail for equally foundational

reasons. The Eighth Amendment is a mismatch because such a claim requires “deliberate

indifference to a prisoner’s serious illness or injury,” Estelle v. Gamble, 429 U.S. 97, 106 (1976),

whereas plaintiff allegedly is not a prisoner and the Board is not a medical provider. The Equal

Protection clause is inapplicable because the complaint does not suggest “unequal treatment was

the result of intentional or purposeful discrimination.” PEM Entities LLC, 57 F.4th at 184. A

procedural due process claim3 is a non-starter because plaintiff does not allege deprivation of a

liberty or property interest by the Board, see The Bd. of Regents of State Colleges v. Roth, 408

U.S. 564, 569 (1972), and plaintiff cannot predicate his claim on a violation of state procedures,

in which he must seek recourse in the first place. See Snider Int’l Corp. v. Town of Forest Heights,

Md., 739 F.3d 140, 149–50 (4th Cir. 2014); Yates v. Jamison, 782 F.2d 1182, 1184 (4th Cir. 1986).

Finally, conclusory references to additional constitutional amendments and conflicts in laws are

not sufficient to meet the substantiality standard for federal question jurisdiction. PEM Entities

LLC, 57 F.4th at 183.

3 Plaintiff argues, for example, the Board “deprive[d] plaintiff of constitutional rights of due process by acts

of ‘ex parte’ in hav[ing] closed meeting with administration judge,” referencing state law rules and regulations

regarding administrative hearings. (Pl’s Opp. (DE 32) at 10-23).

Plaintiff also suggests that he has a federal claim because he “was denied and delayed

justice of fair and equal trial” in Wake County Superior Court, due to an unfair and unconstitutional

application of North Carolina Rule of Civil Procedure 9(j).4 (Pl’s Opp. (DE 32) at 2, 4-5). This

suggestion of a federal claim fails, too, on multiple levels, demonstrating an “insubstantial” basis

for federal jurisdiction. PEM Entities LLC, 57 F.4th at 183. For example, plaintiff, as the “party

losing in state court,” is precluded “from seeking what in substance would be appellate review of

the state judgment in a United States district court, based on the losing party’s claim that the state

judgment itself violates the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005–06

(1994). More fundamentally, a state court judge, not defendants here, dismissed plaintiff’s claim

based upon Rule 9(j), and the state court judge is not and cannot be a defendant in the instant

action. King v. Myers, 973 F.2d 354, 357 (4th Cir. 1992) (“[A]bsolute immunity extended to a

judge performing a judicial action is not in any way diminished even if his or her exercise of

authority is flawed by the commission of grave procedural errors.”).

In sum, plaintiff’s complaint establishes neither that “federal law creates the cause of action

[n]or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question

of federal law.” Interstate Petroleum Corp., 249 F.3d at 219. The references to federal law in the

complaint and in plaintiff’s opposition brief are “insubstantial and . . . pretextual state law claims,”

insufficient to confer federal subject matter jurisdiction. PEM Entities LLC, 57 F.4th at 183.

4 North Carolina Rule of Civil Procedure 9(j) requires a complaint alleging medical malpractice to be dismissed

unless the pleading specifically asserts review by a person who the plaintiff will seek to qualify as an expert witness

and “who is willing to testify that the medical care did not comply with the applicable standard of care.” N.C. R. Civ.

P. 9(j).

Accordingly, plaintiff's complaint must be dismissed “without prejudice” for lack of jurisdiction.

Pinkley, Inc. v. City of Frederick, MD., 191 F.3d 394, 403 (4th Cir. 1999).°

CONCLUSION

For the forgoing reasons, defendants’ motions to dismiss (DE 17, 28) are GRANTED.

Plaintiffs complaint is DISMISSED WITHOUT PREJUDICE for lack of subject matter

Jurisdiction. The clerk is DIRECTED to close this case.

SO ORDERED, this the15th day of August, 2024.

( > pots: W. FLANSOAN

nited States District Judge

5 In addition, and in the alternative, to the extent that reasonable jurists could conclude instead that “the

complaint’s defects go to the merits, not surisdiction,” the “district court’s bottom line” is that plaintiff’s federal claims

fail as a matter of law and must be dismissed for the reasons stated herein. PEM Entities LLC, 57 F.4th at 180. In

that instance, the state claims are dismissed without prejudice because the court declines to “exercise supplemental

jurisdiction over the state law claims.” Id. at 184.

11