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Ronald Davidson v. J. Tan

December 30, 2010


The opinion of the court was delivered by: Brown, Chief Judge



Presently before the Court is Defendants J. Tan, M.D., James Weisberger, M.D. and GenPath Inc.'s (collectively, "Defendants") Motion to Dismiss pro se Plaintiff Ronald Davidson's Complaint ("Plaintiff"). (Docket Entry No. 31.) Though Plaintiff has filed three documents since Defendants filed their Motion, none of the documents appear to be opposition. The Court has decided the motion without oral argument pursuant to Federal Rule of Civil Procedure 78. For the following reasons, the Court will deny Defendants' Motion to Dismiss without prejudice. Further, the Court will also deny Plaintiff's Motion for Default Judgment (Docket Entry No. 15); Motion for Sanctions (Docket Entry No. 17); and Appeal of the Magistrate Judge's Order granting withdrawal and denying Plaintiff's request for appointment of new counsel. (Docket Entry No. 35).


The following facts are taken from Plaintiff's Complaint. Plaintiff is currently an inmate at the Shawangunk Correctional Facility in Wallkill, New York, in the custody of the New York State Department of Corrections. (Docket Entry No. 1, Pl's Compl. ¶1.) On or about August 3, 2005, David Mills, M.D. excised a specimen of tissue from Plaintiff's lower eyelid and sent said specimen to Defendants for evaluation. (Id. at ¶4.) Defendants provided their "Dermatopathology Report" on or about August 5, 2005. (Id. at ¶5.) According to their report, the specimen indicated "early melanoma in-situ, arising in a compound dyplastic nevus. The lesion extends to both lateral edges of the specimen. Complete re-excision is advised." (Id.) Subsequently, a Dermapathology Outside Consultation was performed on the same specimen by the Albany Medical Center at the request of David Michael Mills, M.D. (Id. at ¶8.) Andrew Carlson, M.D. generated the outside consultation report on August 23, 2005. (Id. at ¶9.) Among other things, Dr. Carlson concluded that "these changes are interpreted reactive, related to site and underlying fibrosis and do not signify melanoma in situ. Nonetheless, conservative re-excision of this site is recommended to prevent local recurrence." (Id.) On or about September 9, 2005, Plaintiff underwent the second excision and a tissue sample was collected. (Id. at ¶16.) The sample was submitted to Defendants who conducted testing and issued a dermopathology report which concluded that the tissue was "dermal scar, old. Comment: This may be a reaction to a cyst or adjacent to chalazion." (Id.)

Plaintiff alleges that Defendants' mis-diagnosis caused him to have "pain and suffering and extreme emotional distress." (Id. at ¶11.) Plaintiff also alleges that it "caused [him] to develop a fear and phobia of having cancer." (Id.) Plaintiff further alleges that the re-excision was painful and caused scarring. (Id. at ¶13.) For damages, Plaintiff is seeking one million dollars in compensatory damages from each defendant and three million dollars in punitive damages from each defendant. (Id. at ¶18.)

Plaintiff initially filed his Complaint on January 21, 2008 in the Eastern District of New York. (Docket Entry No. 5, Transfer Order.) Subsequently, on March 21, 2008, the Eastern District of New York transferred Plaintiff's case to the District of New Jersey because Defendant GenPath is located in New Jersey and Defendants Tan and Weisberger are employees of GenPath. (Id.) This Court granted Plaintiff's in forma pauperis application and the United States Marshal served Plaintiff's Complaint on the Defendants. (Docket Entry No. 13.) On December 17, 2008, the Court granted Plaintiff's application for pro bono counsel and stayed all discovery and motion practice pending the appointment of counsel. (Docket Entry No. 14.) On January 5, 2009, Plaintiff filed a Motion for Default Judgment against the Defendants for failing to file an answer by the December 16, 2008 deadline. (Docket Entry No. 15.) On January 16, 2009, Defendants filed an Answer. (Docket Entry No. 16.) On April 17, 2009, Plaintiff filed a Motion to hold Defendants in contempt because Defendants served Plaintiff with a notice of deposition, interrogatories and request for document production, in violation of the Court's December 17th Order. (Docket Entry No. 17.) Plaintiff also alleged that Defendants had failed to serve him with a copy of their Answer. (Id.)

On April 23, 2009, Defendants responded to Plaintiff's Motions, stating that they did not enter an appearance in the case until January 2009 and they did not recall receiving the Magistrate Judge's Order staying discovery until pro bono counsel is appointed. (Docket Entry No. 18.) Defendants further state that they served Plaintiff with their Answer via regular and certified mail and though they had not received the return receipt from the certified mail, the Answer sent regular mail had not been returned as undeliverable. (Id.)

On May 7, 2009, the Court dismissed Plaintiff's Motions for Default and Contempt without prejudice and permitted pro bono counsel to re-raise any motions as appropriate. (Docket Entry No. 19.) On October 26, 2009, pro bono counsel entered an appearance on behalf of Plaintiff. (Docket Entry No. 21.) On March 5, 2010, Plaintiff wrote a letter to the Magistrate Judge requesting that his court-appointed counsel be relieved and that another pro bono attorney be appointed. (Docket Entry No. 25.) On March 24, 2010, Plaintiff's pro bono counsel filed a Motion to Withdraw and on March 31st, the Magistrate Judge granted counsel's Motion and permitted him to withdraw. (Docket Entry Nos. 28 & 29.) The Court declined to appoint a second pro bono attorney and ordered that Plaintiff would proceed pro se. (Id.) The Court also ordered that all discovery was extended through June 1, 2010 and any summary judgment motions must be filed by July 15, 2010. (Id.) On April 14, 2010, the Defendants filed the instant Motion to Dismiss. (Docket Entry No. 31.)

On April 26, 2010, Plaintiff filed a letter objecting to the Magistrate Judge's March 31st Order declining to appoint replacement counsel. (Docket Entry No. 32.) Plaintiff argued that pro bono counsel never met with him or took his phones calls; that he failed to obtain his medical records; that he practices in medical malpractice defense; and that he failed to provide Plaintiff with the names of the experts that he conferred with on an informal basis which led him to conclude that Plaintiff's claims were not supported by fact. (Id.) Plaintiff requested that Defendants' Motion to Dismiss be held in abeyance until his Motions for Default Judgment and Contempt and his request for replacement counsel are decided. (Id.) Plaintiff also requested that he receive an extension of time after his Motions are decided to respond to Defendants' Motion. (Id.) On May 4, 2010, the Magistrate Judge addressed Plaintiff's "objections," construing said "objections" as a motion for reconsideration of the Court's decision to allow pro bono counsel to withdraw and declining to appoint new counsel. (Docket Entry No. 34.) The Magistrate Judge denied reconsideration. (Id.)

On May 24, 2010, Plaintiff filed "objections" to the Magistrate Judge's May 4, 2010 Order. (Docket Entry No. 35.) It appears that Plaintiff intends these "objections" to be construed as an appeal of the Magistrate Judge's Order denying him appointment of replacement counsel. Plaintiff also appears to be renewing his Motions for Default Judgment and Contempt, as well as requesting transfer of his entire case to the Eastern District of New York.*fn1 (Id.)


A. Appeal of Magistrate Judge's Order Regarding ...

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