Darren James v. New Jersey Department of Healt

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________

No. 20-3038

__________

DR. DARREN JAMES,

Appellant

v.

NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES; MS.

KATHLEEN BENNETT, former Commissioner of the New Jersey Department of Health

and Senior Services; MS. SUE CARSON, the director of the Department of Health and

Senior Services, medical marijuana program

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3:18-cv-10461)

District Judge: Honorable Brian R. Martinotti

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 18, 2022

Before: GREENAWAY, JR., PORTER and NYGAARD, Circuit Judges

(Opinion filed: May 18, 2022)

___________

OPINION*

___________

PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Pro se appellant Dr. Darren James appeals from the District Court’s judgment

granting the appellees’ motion to dismiss, denying his motion to amend, and dismissing

the complaint with prejudice. For the reasons that follow, we will affirm the District

Court’s judgment.

In 2018, Dr. James filed suit against the New Jersey Department of Health and

Senior Services, its former commissioner Kathleen Bennett, and the director of the

Medical Marijuana Program (MMP), Sue Carson. Dr. James, who is blind, alleged that

he was disqualified from participating in the program as a referring physician because of

his disability. He filed claims alleging discrimination under several state and federal

laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA),

and the New Jersey Law Against Discrimination (NJLAD); violations of his civil rights

under the United States Constitution; breach of contract under state law; and various tort

claims including defamation, criminal slander, and fraudulent concealment. He also

sought release of documents under the Freedom of Information Act (FOIA) and the New

Jersey Open Public Records Act (OPRA). After the defendants filed a motion to dismiss

the complaint, the District Court allowed Dr. James to amend his complaint twice. The

defendants filed a motion to dismiss the second amended complaint under Rule 12(b)(6).

Dr. James moved to amend his complaint a third time.

In September 2020, the District Court granted the defendants’ motion to dismiss.

The Court found that Dr. James failed to make a prima facie showing of disability

discrimination because, as a Doctor of Podiatric Medicine (D.P.M.), he did not qualify

for participation in the program. The District Court also found that the state defendants

2

are not “persons” for purposes of § 1983, and that the individual defendants are entitled

to qualified immunity from claims asserted against them in their personal capacities

because Dr. James failed to state a constitutional violation. The District Court also

rejected the contract and tort claims, as well as the document requests. Finally, the

District Court denied Dr. James’s motion to amend his complaint for a third time because

amendment would be futile. Dr. James filed this timely appeal.

We review the district court’s decision to dismiss the second amended complaint

de novo. See Klotz v. Celentano Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462 (3d

Cir. 2021). We consider the District Court’s denial of the motion for leave to amend for

an abuse of discretion, but we review the conclusion that amendment would be futile

under a de novo standard. U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d

837, 849 (3d Cir. 2014).

In his second amended complaint, Dr. James tried to assert the defendants’

liability for discrimination by relying on a multitude of civil and criminal statutes.1 On

appeal, however, he chiefly takes issue with the District Court’s determination that he

failed to state a claim under the ADA, RA, and NJLAD.2 To survive a motion to dismiss,

Dr. James had to plead sufficient facts “to raise a reasonable expectation that discovery

1

Dr. James relied on the ADA, the RA, Titles VI and VII of the Civil Rights Act, the

NJLAD, the New Jersey Civil Rights Act (NJCRA), and 18 U.S.C. §§ 242, 245.

2

We apply the same ADA analysis for Dr. James’s claims under all three statutes. See

Fowler v. AT & T, Inc., 19 F.4th 292, 298 (3d Cir. 2021) (“New Jersey law generally

tracks the relevant federal statutes”); Chisolm v. McManimon, 275 F.3d 315, 324 n.9 (3d

Cir. 2001) (ADA principles apply to claims under the RA and NJLAD).

3

w[ould] reveal evidence of” the elements for discrimination, e.g., that he: (1) is a disabled

person under the ADA; (2) is “a qualified individual;” and (3) has suffered an adverse

employment action as a consequence of the disability. See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 556 (2007) (explaining standard for pleading sufficiency); McNelis v. Pa.

Power & Light Co., 867 F.3d 411, 414 (3d Cir. 2017) (outlining necessary elements for

ADA discrimination claim).3 The District Court concluded that Dr. James failed to show

that he was a “qualified individual,” which we have previously defined as one who meets

“the prerequisites for the position, such as possessing the appropriate educational

background, employment experience, skills, licenses, etc.,” and is able to “perform the

essential functions of the position,” either “with or without reasonable accommodation.”

Id. at 415 (citation omitted).

We agree that Dr. James has not alleged a claim upon which relief may be granted

because he did not have the qualifications to participate in the MMP as a prescribing

physician. The applicable statute for the MMP defined “physician” as:

a person licensed to practice medicine and surgery pursuant to Title 45 of the

Revised Statutes with whom the patient has a bona fide physician-patient

relationship and who is the primary care physician, hospice physician, or

physician responsible for the ongoing treatment of a patient’s debilitating medical

condition, provided, however, that the ongoing treatment shall not be limited to

3

The District Court stated that Dr. James had not demonstrated a prima facie case for

discrimination. D. Ct. Opinion at 7. However, we have explained that the prima facie

case standard is one of evidentiary sufficiency, not a pleading requirement. Connelly v.

Lane Const. Corp., 809 F.3d 780, 788-89 (3d Cir. 2016). After our plenary review of the

discrimination claims, we are nevertheless satisfied that Dr. James did not meet the

standard to survive a motion to dismiss because he failed to plead sufficient facts to raise

a reasonable expectation that discovery would provide evidence that he was a qualified

individual. See id. at 789; McNelis, 867 F.3d at 415.

4

the provision of authorization for a patient to use medical marijuana or

consultation solely for that purpose.

N.J. Stat. Ann. 24:6I-3 (2012) (emphasis added). And, in Title 45, Chapter 9, entitled

“Medicine and Surgery,” a “physician” is defined as a “person licensed or permitted to

practice medicine or surgery in this State.” N.J. Stat. Ann. § 45:9-27.5. But Dr. James’s

podiatry practice is regulated through a different chapter of Title 45 for “Podiatric

Medicine.” See N.J. Stat. Ann. § 45:5-1 et. seq. Under the terms of Chapter 5, a

podiatrist is considered “a physician within the scope of this chapter, and may be referred

to as a podiatric physician.” Id. § 5-7. The statute for the MMP did not include

“podiatric physicians” in its definition of authorized prescribing physicians.

Dr. James argues that he had previously participated as a prescribing physician in

the MMP, and he contends that the state’s explanation that he failed to qualify under the

statute was just a pretext to discriminate against him based on his disability. But, by his

own admission, Dr. James is a podiatrist—a D.P.M.—and not a medical doctor (M.D.).

Despite his arguments to the contrary, the fact that he previously was able to register

online for the MMP as a “medical doctor” even though he was not one did not somehow

confer qualified status under the program. Absent Dr. James’s ability to credibly allege

that discovery might reveal that he was qualified to participate in the MMP, the

discrimination claims were properly dismissed. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (explaining that a complaint must have sufficient facts to state a claim “that is

plausible on its face”).4

4

Dr. James argues on appeal that the District Court used a newer version of the MMP

5

Next, Dr. James challenges the District Court’s ruling that defendants Bennett and

Carson are entitled to qualified immunity with respect to Dr. James’s Constitutional Due

Process claims. See Appellant’s Br. at 4; D. Ct. Op. at 8-10. But even accepting Dr.

James’s allegations as true and drawing all inferences in his favor, see George v. Rehiel,

738 F.3d 562, 571 (3d Cir. 2013), we agree with the District Court that the defendants are

entitled to qualified immunity. See James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d

Cir. 2012) (explaining that a district court’s denial of qualified immunity at the motion to

dismiss stage is “a pure question of law”). As the District Court pointed out, Dr. James’s

complaint failed to allege a violation of his due process rights because he admittedly did

not take advantage of the process available to him. D. Ct. Op. at 10; see also Pearson v.

Callahan, 555 U.S. 223, 232 (2009) (government official protected from liability under

qualified immunity unless the facts alleged show the violation of a clearly established

constitutional right of which a reasonable person would have known); Alvin v. Suzuki,

227 F.3d 107, 116 (3d Cir. 2000) (in order to state a claim for due process deprivation, a

plaintiff must avail themselves of the process available unless inadequate or unavailable).

We have no doubt that the remedy under New Jersey Court Rule 2:2-3(a) was adequate,

and, because he did not avail himself of the process available, no due process violation

occurred. Accordingly, qualified immunity was appropriate.

law to conclude that he did not qualify as a prescribing physician under the act. See

Appellant’s Br. at 3, 7. But, as explained above, since its inception the statute explicitly

referred to “physicians licensed to practice medicine and surgery” pursuant to Title 45

and never included “podiatrists” defined under Title 45. (Medical doctors with a podiatry

specialty apparently were allowed to participate in the program.)

6

On appeal, Dr. James does not meaningfully challenge the District Court’s

dismissal of the balance of his claims in the second amended complaint. See Geness v.

Cox, 902 F.3d 344, 355 (3d Cir. 2018) (“[I]t is well settled that a passing reference to an

issue will not suffice to bring that issue before this court.” (internal quotation marks

omitted)). In any event, we would affirm their dismissal for the reasons provided by the

District Court.

Finally, Dr. James argues that the District Court erred by denying his motion to

file a third amended complaint. To the extent that Dr. James attempted to cure the

defects of his second amended complaint, we agree with the District Court that the

proposed third amended complaint did not cure the pleading deficiencies of the second

amended complaint; thus, any further amendment would be futile. See Jablonski v. Pan

Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (explaining that

"[a]mendment of the complaint is futile if the amendment will not cure the deficiency in

the original complaint or if the amended complaint cannot withstand a renewed motion to

dismiss").5 We note that, in the proposed pleading, Dr. James also sought to add

additional defendants and raise new allegations of retaliation with respect to the

suspension of his license to practice podiatry. See Garrett v. Wexford Heath, 938 F.3d

69, 82 (3d Cir. 2019) (explaining that a supplemental pleading under Fed. R. Civ. P.

5

To the extent that Dr. James attempted to comply with the New Jersey Tort Claims Act

for the defamation claim in his proposed amended complaint, the District Court would

not exercise supplemental jurisdiction over it when the rest of the claims have been

dismissed, including those over which the court could exercise subject matter

jurisdiction.

7

15(d) presents more recent events that occurred since the pleading was filed, as opposed

to an amended pleading, which adds additional events that occurred before the pleading

was filed). But we find that the proposed pleading did not contain sufficient facts to state

a claim of relief for retaliation that would be plausible on its face. See Twombly, 550

U.S. at 570; Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam)

(explaining that the court may affirm “on any basis supported by the record”).6 The

District Court did not abuse its discretion by denying the motion. See Astrazeneca, 769

F.3d at 849.

Accordingly, we will affirm the judgment of the District Court.

6

To plead retaliation under the First Amendment, a plaintiff must allege: “(1)

constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of

ordinary firmness from exercising his constitutional rights, and (3) a causal link between

the constitutionally protected conduct and the retaliatory action.” Thomas v.

Independence Tp., 463 F.3d 285, 296 (3d Cir. 2006). Dr. James alleged that the

defendants retaliated against him for appearing on a television program in which he

stated that he was a blind podiatrist, for filing complaints with the U.S. Department of

Justice and the New Jersey Division on Civil Rights, and for filing this lawsuit. See ECF

No. 66-1 at 33. The State Board of Medical Examiners ordered Dr. James’s license to be

suspended in November 2019 because Dr. James failed to comply with a previously

agreed-to assessment of skills pursuant to a consent order entered during the Board’s

investigation of his ability to safely practice podiatry. See ECF No. 66-3 at 66-67. Here,

Dr. James failed to sufficiently allege a causal link between any protected conduct and

the actions taken by the Board to revoke his license, and there is no basis for a reasonable

inference that the defendants are liable. Iqbal, 556 U.S. at 678. He admitted signing the

consent order, which included a provision that the failure to timely obtain assessment of

skills would be grounds for immediate suspension of his license. See ECF No. 66-3 at

66. While he provides a litany of reasons for why he did not comply with the consent

order, none allege actionable conduct by the defendants, and Dr. James cannot avoid the

fact that his own actions (or inactions) precipitated the suspension of his license.

8