Simmons v. Jackson et al

Motion to Dismiss for Failure to State a Claim

N.D. Tex.January 23, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JASON SIMMONS, § § Plaintiff, § § v. § Civil Action No. 3:15-CV-01700-D § RAY JACKSON, METHODIST § HOSPITAL OF DALLAS, § OSCAR SAN MIGUEL, and § TEXAS MEDICAL BOARD, § § Defendants. § DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINT AND BRIEF IN SUPPORT Sean C. Urich Texas Bar No. 24033287 sean.urich@ogletreedeakins.com Stephanie Johnson Manning Texas Bar No. 24099422 stephanie.manning@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Preston Commons West 8117 Preston Road, Suite 500 Dallas, Texas 75225 (214) 987-3800 (214) 987-3927 (Fax) ATTORNEYS FOR DEFENDANT METHODIST HOSPITALS OF DALLAS Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 1 of 31 PageID 4508 ii TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii I. INTRODUCTION ...............................................................................................................1 II. RELEVANT PROCEDURAL HISTORY ..........................................................................2 III. ARGUMENTS AND AUTHORITIES................................................................................5 A. PLAINTIFF’S FOURTH AMENDED COMPLAINT FAILS TO COMPLY WITH THE COURT’S ORDER OR BASIC PLEADING REQUIREMENTS .......................................................................................................5 B. PLAINTIFF’S CLAIMS AGAINST METHODIST SHOULD BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) ................................................................................................8 1. Standards for Dismissal Pursuant to Rule 12(b)(6).................................................8 2. Plaintiff Fails to State a Claim Against Methodist for a RICO Conspiracy...............................................................................................................9 a. Plaintiff Fails to Plead a “Pattern of Racketeering Activity” .............................10 i. Plaintiff has not sufficiently pled predicate acts ............................................10 ii. Plaintiff has not sufficiently pled a “pattern” of racketeering activity ...........................................................................................................14 b. Plaintiff Fails to Adequately Plead a RICO Enterprise ......................................15 c. Plaintiff Fails to State a Claim Under 18 U.S.C. Section 1962(d) .....................17 3. Plaintiff’s Civil Conspiracy Claims Under 42 U.S.C. Sections 1983 and 1985 Are Time-Barred............................................................................18 4. Plaintiff Fails to State Any Claim Against Methodist for Civil Conspiracy.............................................................................................................20 5. Plaintiff’s Breach of Contract Claims Are Time-Barred.......................................21 IV. CONCLUSION..................................................................................................................22 Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 2 of 31 PageID 4509 iii TABLE OF AUTHORITIES Page(s) Cases 4 K &D Corp. v. Concierge Auctions, LLC, 2 F. Supp.3d 525 (S.D. N.Y. 2014) .........................................................................................11 Allstate Ins. Co. v. Plambeck, 802 F.3d 665 (5th Cir. 2015) ...................................................................................................15 Arsenaux v. Roberts, 726 F.2d 1022 (5th Cir. 1982) .................................................................................................21 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)................................................................................................................8 Beck v. Prupis, 529 U.S. 494 (2000).................................................................................................................10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)...........................................................................................................5, 8, 9 Boyle v. United States, 556 U.S. 938 (2009).................................................................................................................16 In re Burzynski, 989 F.2d 733 (5th Cir. 1993) ...................................................................................................14 Calcasieu Marine Nat’l Bank v. Grant, 943 F.2d 1453 (5th Cir. 1991) .................................................................................................16 Capstone Healthcare Equipment Services, Inc. ex rel. Health System Group, L.L.C. v. Quality Home Health Care, Inc., 295 S.W.3d 696 (Tex.App. - Dallas 2009, pet. denied) ..........................................................21 Crowe v. Henry, 43 F.3d 198, 206 (5th Cir. 1995) .............................................................................................17 Curtis & Associates, P.C. v. Law Offices of David M. Bushman, Esq., 758 F.Supp.2d 153 (E.D. N.Y. 2010) ......................................................................................11 Davis-Lynch, Inc. v. Moreno, 667 F.3d 539 (5th Cir. 2012) ...................................................................................................10 Dennis v. General Imaging, Inc., 918 F.2d 496 (5th Cir. 1990) ...................................................................................................10 Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 3 of 31 PageID 4510 iv Elliot v. Foufas, 867 F.2d 877 (5th Cir. 1989) .....................................................................................................9 Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368 (5th Cir. 2008) .....................................................................................................8 Ennis v. Edwards, No. 02-CV-0769, 2003 WL 1560113 (E.D.La. Mar. 25, 2003) ..............................................10 Ghazzaoui v. Anne Arundel County, Md., Civil Action No. ELH-14-1410, 2014 WL 3973037 (D. Md., Aug. 11, 2014) .......................14 Green v. Grampre, 388 Fed. App’x 437 (5th Cir. 2010) ........................................................................................18 H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229 (1989).................................................................................................................14 Capstone Healthcare Equipment Services, Inc. ex rel. Health System Group, L.L.C. v. Quality Home Health Care, Inc., 295 S.W.3d 696 (Tex.App.-Dallas 2009, pet. denied) ..........................................................21 Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261 (5th Cir. 2001) ...................................................................................................20 Horsley v. Feldt, 304 F .3d 1125, 1134 (11th Cir. 2002) ....................................................................................13 Hunt v. City of Toledo Law Dept., 881 F.Supp.2d 854 (N.D. Ohio 2012)......................................................................................21 Jackson v. Johnson, 950 F.2d 263 (5th Cir. 1992) ...................................................................................................18 Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404 (5th Cir.), cert. denied, 498 U.S. 895 (1990).....................................................11 Ledesma v. Dillard Dept. Stores, 818 F. Supp. 983 (N.D. Tex. 1993) ...........................................................................................8 Lee v. Whispering Oaks Home Owners’ Ass’n, 797 F.Supp.2d 740 (W.D. Tex. 2011)......................................................................................20 Lewis v. Wells Fargo Bank, N.A., 939 F.Supp.2d 634 (N.D. Tex. 2013) ......................................................................................19 Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 4 of 31 PageID 4511 v Lowden v. William M. Mercer, Inc., 903 F.Supp. 212 (D.Mass.1995) ..............................................................................................12 Meer v. Dennis Dillon Auto Park & Trick Center, Inc., No. 1:12-CV-025-BLW, 2013 WL 5410018 (D. Idaho, Sept. 24, 2013) ................................15 Montesano v. Seafirst Commercial Corp., 818 F.2d 423 (Tex. 1987) ..................................................................................................15, 16 Moore v. McDonald, 30 F.3d 616 (5th Cir. 1994) .....................................................................................................18 Moore v. PaineWebber, Inc., 189 F.3d 165 (2d Cir. 1999).....................................................................................................11 Muhammad v. Bethel-Muhammad, Civil Action No. 11-0690-WS-B, 2012 WL 1854564 (S.D. Ala. May 21, 2012) ..................................................................................................................................12, 13 Oblio Telecom, Inc. v. Patel, 08-CV-0279, 2009 WL 1650481 (N.D. Tex. June 10, 2009) ..................................................11 Old Time Enterprises, Inc. v. Int’l Coffee Corp., 862 F.2d 1213 (5th Cir. 1989) ...................................................................................................9 Orthoflex, Inc. v. ThermoTek, Inc., Nos. 3:11-CV-0870-D and 3:10-CV-2618-D, 2012 WL 2864510 (N.D. Tex. July 12, 2012)...........................................................................................................................18 Ruiz v. Alegria, 896 F.2d 645 (1st Cir. 1990)......................................................................................................9 Russell v. Board of Trustees, 968 F.2d 489 (5th Cir.1992) ....................................................................................................18 Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988).........................................................................................................6 Shabazz v. Tex. Youth Comm’n, 300 F. Supp. 2d 467 (N.D. Tex. 2003) ......................................................................................8 Small v. Dallas County, Tex., 170 Fed. App’x 943 (5th Cir. 2006) ........................................................................................21 Smith v. Intern., Inc. v. Egle Group, LLC, 490 F.3d 380 (5th Cir. 2007) ...................................................................................................21 Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 5 of 31 PageID 4512 vi Spadafore v. Gardner, 330 F.3d 849 (6th Cir. 2003) ...................................................................................................20 Spivey v. Robertson, 197 F.3d 772 (5th Cir. 1999) .....................................................................................................8 St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425 (5th Cir. 2000) .....................................................................................................9 Stanissis v. DynCorp. Int’l LCC, Nos. 3:14-CV-2736-D and 3:15-CV-2026-D, 2015 WL 9478184 (N.D. Tex. Dec. 29, 2015)....................................................................................................................15, 17 Stanley v. Foster, 464 F.3d 565 (5th Cir. 2006) ...................................................................................................18 Stepnes v. Ritschel, 771 F.Supp.2d 1019 (D. Minn. 2011)......................................................................................21 Suber v. Guinta, 902 F.Supp.2d 591 (E.D. Penn. 2012) .....................................................................................20 Swanson v. U.S. Forest Serv., 87 F.3d 339 (9th Cir. 1996) .....................................................................................................13 Tel-Phonic Servs. Inc. v. TBS Int’l, Inc., 975 F.2d 1134 (5th Cir. 1992) .................................................................................................17 Trugreen Landcare LLC v. Scott, 512 F. Supp. 2d 613 (N.D. Tex. 2007) ....................................................................................17 U.S. v. International Longshoremen’s Ass’n, 518 F.Supp. 2d 422 (E.D. N.Y. 2007) .......................................................................................7 United States v. Delgado, 401 F.3d 290 (5th Cir. 2005) ....................................................................................................17 United States v. Turkette, 452 U.S. 576 (1981).................................................................................................................16 Valvanis v. Milgroom, Civil No. 06-00144 ..................................................................................................................13 Williams v. City of Colorado Springs, 176 F.3d 490 (10th Cir. 1999) ...................................................................................................6 Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 6 of 31 PageID 4513 vii Wilson v. Jackson, 14-CV-3748, 2014 WL 6901810 (N.D. Tex. Dec. 8, 2014) ....................................................21 Wolfe v. Charter Forest Behavioral Health Systems, Inc., 185 F.R.D. 225 (W.D. La. 1999) .......................................................................................12, 13 Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004).........................................................................................................6 Young v. Centerville Clinic, Inc., No. CIV. A. 09-325, 2009 WL 4722820 (W.D. Pa. Dec. 2, 2009)............................................6 Statutes 18 U.S.C. § 1961(1) .......................................................................................................................10 18 U.S.C. § 1961(4) .......................................................................................................................15 18 U.S.C. § 1961(5) .......................................................................................................................14 18 U.S.C. § 1962(d) .............................................................................................................9, 17, 18 42 U.S.C. § 1983.................................................................................................................... passim 42 U.S.C. § 1985............................................................................................................1, 18, 19, 20 Tex. Civ. Prac. & Rem. Code § 16.003(a) .....................................................................................18 Tex. Civ. Prac. & Rem. Code § 16.004 .........................................................................................21 Other Authorities Fed.R.Civ.P. 8..........................................................................................................2, 3, 4, 5, 6, 7, 8 Fed.R.Civ.P. 8(a) .................................................................................................................3, 4, 5, 8 Fed.R.Civ.P. 8(a)(1).........................................................................................................................5 Fed.R.Civ.P. 8(a)(2).........................................................................................................................9 Fed.R.Civ.P. 8(a)(2).........................................................................................................................5 Fed.R.Civ.P. 8(d)(1).............................................................................................................1, 3, 4, 5 Fed.R.Civ.P. 9(b) ...................................................................................................................3, 4, 11 Fed.R.Civ.P. 10................................................................................................................................6 Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 7 of 31 PageID 4514 viii Fed.R.Civ.P. 10(b) ...................................................................................................1, 2, 3, 4, 5, 7, 8 Fed.R.Civ.P. 10(c) ...............................................................................................................7, 12, 13 Fed.R.Civ.P. 12(b)(6)...................................................................................................................1, 8 Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 8 of 31 PageID 4515 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JASON SIMMONS, § § Plaintiff, § § Civil Action No. 3:15-CV-01700-D v. § § RAY JACKSON, METHODIST § HOSPITAL OF DALLAS, § OSCAR SAN MIGUEL, and § TEXAS MEDICAL BOARD, § § Defendants. § DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINT AND BRIEF IN SUPPORT Defendant Methodist Hospitals of Dallas (“Methodist”) respectfully submits its Motion to Dismiss Plaintiff’s Fourth Amended Complaint for failure to comply with the Court’s Order dated January 4, 2017 and Federal Rules of Civil Procedure 8(d)(1) and 10(b), and for failure to state a claim pursuant to Rule 12(b)(6). I. INTRODUCTION Plaintiff’s Fourth Amended Complaint represents Plaintiff’s most recent attempt to impose liability on Methodist for his termination from its medical residency program over six (6) years ago in May 2010. Plaintiff previously filed two (2) failed federal court discrimination lawsuits against Methodist arising from his separation, and now, has switched tack to allege convoluted and unintelligible conspiracy claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 42 U.S.C. §1983, and 42 U.S.C. §1985. Additionally, Plaintiff alleges eleven (11) separate, groundless breach of contract claims against Methodist. Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 9 of 31 PageID 4516 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 2 After granting Methodist’s Motion to Dismiss Plaintiff’s Third Amended Complaint for failing to comply with the Rules, this Court granted Plaintiff one final opportunity to plead his claims against all Defendants with explicit direction and guidance. Nevertheless, Plaintiff’s “simplified” Fourth Amended Complaint still fails to comply with the Court’s Order dated January 4, 2017, as well as Rules 8 and 10(b). This continued failure alone warrants dismissal of all claims with prejudice. Plaintiff’s claims against Methodist should further be dismissed with prejudice because the Fourth Amended Complaint consists of nothing more than speculation, conclusory (and confusing) allegations, and legal conclusions - all of which are insufficient to state a claim for which relief can be granted. II. RELEVANT PROCEDURAL HISTORY 1. The instant lawsuit follows two (2) previously filed and dismissed employment discrimination lawsuits filed by Plaintiff against Methodist. In May 2010, Plaintiff was terminated from Methodist’s physician residency program for performance issues. The first suit filed on January 4, 2011 in the U.S. District Court for the Northern District of Texas, Dallas Division (3:11-CV-0017-B) alleged race discrimination in Plaintiff’s employment and termination. In that lawsuit, Plaintiff was represented by attorney Ray Jackson (“Jackson”), who is a defendant in this matter. Methodist filed a Motion for Summary Judgment on January 27, 2012, which was granted by the Court on April 26, 2012. 2. Over two years later, on August 18, 2014, Plaintiff, pro se, filed a second lawsuit against Methodist in the U.S. District Court for the Northern District of Texas, Dallas Division (3:14-CV-02958-B) alleging the same employment discrimination claims against Methodist. Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 10 of 31 PageID 4517 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 3 Methodist filed a Motion to Dismiss on October 14, 2014, which was granted by the Court on May 1, 2015. 3. Less than a week later, on May 7, 2015, Plaintiff initiated the instant lawsuit against Jackson as the sole defendant. On July 8, 2016, this Court directed that Plaintiff’s Brief in Support of Motion for Third Amended Original Complaint [Doc. 62] be filed as Plaintiff’s Third Amended Complaint [Doc. 79]. As part of Plaintiff’s Third Amended Complaint [Doc. 80], Plaintiff was allowed to add Methodist and other parties to this action. 4. On August 18, 2016, Methodist filed a Motion to Dismiss seeking dismissal of Plaintiff’s claims against it because Plaintiff’s Third Amended Complaint failed to comply with Rules 8 and 10(b) and failed to state a claim upon which relief could be granted. [Doc. 107] 5. On November 10, 2016, Magistrate Stickney submitted his Findings, Conclusions, and Recommendation pertaining to Methodist’s initial Motion to Dismiss. [Doc. 152] Magistrate Stickney recommended the initial Motion to Dismiss be granted in part and denied in part. [Id., p. 5] Specifically, Magistrate Stickney determined that Plaintiff’s Third Amended Complaint failed to comply with Rules 8(a), 8(d)(1), 9(b), and 10(b), entitling Methodist to dismissal of Plaintiff’s claims. [Id., p. 6] However, Magistrate Stickney recommended Plaintiff be given one final opportunity to replead his claims. [Id., pp. 5-6] Magistrate Stickney’s recommendation required Plaintiff’s amendment to be consistent with the Rules and not exceed twenty (20), double-spaced pages. [Id., p. 5] Magistrate Stickney further recommended that an amended complaint inconsistent with the referenced Rules or the Court’s Order should result in Plaintiff’s action against Methodist being dismissed with prejudice. [Id., p. 6] Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 11 of 31 PageID 4518 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 4 6. On December 9, 2016, Magistrate Stickney entered an Order clarifying for Plaintiff that all of the claims pled against Methodist failed to comply with Rules 8, 9(b), and 10(b). [Doc. 163, p. 2] In that finding, Magistrate Stickney observed that Plaintiff’s Third Amended Complaint (with exhibits) was a total of 389 pages and failed to use paragraph numbers. [Id.] Further, Magistrate Stickney commented that Plaintiff purported to incorporate entire pleadings into the Third Amended Complaint and specifically noted that a “court is not required to sift through a complaint that violates Rule 8.” [Id.] Finally, Magistrate Stickney noted that Plaintiff - with the aid of Methodist’s initial Motion to Dismiss and the Court’s recommendation and clarification - should have sufficient guidance to file a compliant final amended complaint. [Id., pp. 3-4] 7. On December 27, 2016, before the Court adopted Magistrate Stickney’s recommendations, Plaintiff sought leave to file a Fourth Amended Complaint and attached a proposed Fourth Amended Complaint professing to be compliant with Magistrate Stickney’s recommendations. [Doc. 164] 8. On January 4, 2017, the Court adopted Magistrate Stickney’s November 10, 2016, Findings, Conclusions, and Recommendation. [Doc. 168] The Court ordered Plaintiff to file a fourth amended complaint complying with Rules 8(a), 8(d)(1), 9(b), and 10(b). [Id., p. 1] The Court additionally ordered that the fourth amended complaint be typed in at least 12-point font, double spaced, and “not exceed 20 total pages.” [Id.] The Court noted that this was Plaintiff’s “final opportunity to replead his complaint.” [Id.] 9. In the Order dated January 4, 2017, the Court additionally denied Plaintiff’s request for leave to file a fourth amended complaint as moot. [Id., p. 2] The Court specifically observed that Plaintiff’s proposed fourth amended complaint submitted on December 27, 2016, Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 12 of 31 PageID 4519 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 5 did “not appear to comply in all respects with the applicable Federal Rules of Civil Procedure (e.g., Rule 8(a)(1))” and “still slightly exceed[ed] 20 pages (even excluding exhibits).” [Id.] 10. Plaintiff filed his Fourth Amended Complaint on January 10, 2017. [Doc. 171] With exhibits, the Fourth Amended Complaint is a total of 81 pages. The filed Fourth Amended Complaint is substantively identical to the proposed (and uncompliant) Fourth Amended Complaint, but is slightly reformatted to ensure the Complaint (excluding exhibits) did not exceed 20 pages. III. ARGUMENTS AND AUTHORITIES A. PLAINTIFF’S FOURTH AMENDED COMPLAINT FAILS TO COMPLY WITH THE COURT’S ORDER OR BASIC PLEADING REQUIREMENTS. Despite significant guidance from the Court and the identification of pleading errors described in Methodist’s initial Motion to Dismiss, Plaintiff’s Fourth Amended Complaint does not comply with the Court’s Order dated January 4, 2017, and the basic pleading requirements set forth in the Rules. The Court specifically ordered Plaintiff to comply with Rule 8(a), 8(d)(1), and 10(b). Rule 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2) and (d)(1). Similarly, Rule 10(b) requires a party to state its claims “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). The purpose of these Rules is to “give the defendant[s] fair notice of what the claim[s] [are] and the grounds upon which [they] rest[ ].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal on Rule 8 grounds is proper in those “cases in which the complaint is so confused, ambiguous, or otherwise unintelligible that its true substance, if any, is well Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 13 of 31 PageID 4520 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 6 disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); Young v. Centerville Clinic, Inc., No. CIV. A. 09-325, 2009 WL 4722820, at *3 (W.D. Pa. Dec. 2, 2009) (granting motion to dismiss for failure to satisfy the pleading requirements in Rules 8 and 10). Further, a complaint merits dismissal when it is so rambling and confusing as to “overwhelm the defendant’s ability to understand or to mount a response.” Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004); Williams v. City of Colorado Springs, 176 F.3d 490 (10th Cir. 1999) (recognizing a “statement should be short because unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.”). Here, Plaintiff’s Fourth Amended Complaint - even at only 20 written pages and 57 pages of exhibits - warrants dismissal like Plaintiff’s prior complaints because it is anything but concise and contains “unnecessary prolixity.” Indeed, Plaintiff’s Fourth Amended Complaint consists almost entirely of rambling speculation, conclusory allegations, and legal conclusions devoid of any factual support (or allegations that might provide support even if taken as true). To add to the prolixity and confusion, Plaintiff’s Fourth Amended Complaint purports to incorporate significant sections of his previously filed pleadings and motions, including his Motion for Partial Summary Judgment (“MPSJ”) that was denied by the Court on November 7, 2016, because it was filed without leave of Court and was premature [Doc. 153]. For example, in Paragraphs 10, 11, 35, and 55 of the Fourth Amended Complaint, Plaintiff “incorporates” amorphous sections of his (legally deficient) Third Amended Complaint. In Paragraphs 7, 11, and 36, Plaintiff “incorporates” portions of his MPSJ. Plaintiff has no excuse for continuing to include this type of “incorporation” in his Complaint, particularly when Magistrate Stickney, in his Order of Clarification, specifically addressed the problem with incorporating previous Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 14 of 31 PageID 4521 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 7 pleadings into the Third Amended Complaint. [Doc. 152, p. 2] The continued incorporation of amorphous portions of other filed documents is inconsistent with Rule 8’s mandate that the allegations be “simple, concise, and direct.” This is nothing more than an ill-disguised attempt to evade the Court’s imposed page limitation. See e.g. U.S. v. International Longshoremen’s Ass’n, 518 F.Supp. 2d 422 (E.D. N.Y. 2007) (holding government could not plead essential elements of its RICO claims by attaching hundreds of pages of pleadings in prior civil and criminal cases, with no guidance as to which specific allegations were intended to be deemed incorporated). In addition to the Rule 8 violations, Plaintiff also failed to fully comply with even the most basic requirement of numbering his paragraphs as required by Rule 10(b). Although Plaintiff begins numbering his paragraphs on page 3 of the Fourth Amended Complaint, Plaintiff’s “FACTS” section contains 20 unnumbered paragraphs. [Doc. 163, pp. 1-3] There is no excuse for this blatant disregard of the Court’s Order and Rule 10(b). In sum, Plaintiff’s Fourth Amended Complaint continues to fall short of the Court’s Order and the Rules. If it is not dismissed, Methodist will be forced to sift through hundreds of pages of attached and incorporated documents - far exceeding the 20-page limit imposed by the Court1 - to mount its defense against the indecipherable claims in the Fourth Amended Complaint. Methodist has been burdened again and again with the aggravation and expense of defending meritless suits by Plaintiff and should not be further burdened to defend against a third round of baseless claims - particularly when Plaintiff has been given multiple opportunities to submit a compliant Complaint, but has failed to do so. 1 Fed.R.Civ.P. 10(c) specifically provides a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. Thus, Plaintiff, by attaching numerous exhibits, did not comply with the Court’s Order to limit his Fourth Amended Complaint to 20 total pages. Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 15 of 31 PageID 4522 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 8 Because the Fourth Amended Complaint fails to comply with the Court’s Order and Rules 8 and 10(b), the Fourth Amended Complaint should be dismissed in its entirety. Pursuant to the Court’s Order dated January 4, 2017, this dismissal should be with prejudice. B. PLAINTIFF’S CLAIMS AGAINST METHODIST SHOULD BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). 1. Standards for Dismissal Pursuant to Rule 12(b)(6). A motion to dismiss under Rule 12(b)(6) challenges whether the allegations are sufficient to state claims for relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Fed. R. Civ. P. 12(b)(6); Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir. 2008) (quoting Twombly, supra). The pleading standard in Rule 8(a) “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If a complaint omits facts concerning pivotal elements of a plaintiff’s claim, a court is justified in assuming the non-existence of those facts. Ledesma v. Dillard Dept. Stores, 818 F. Supp. 983, 984 (N.D. Tex. 1993). “[C]onclusory allegations or legal conclusions set forth as factual allegations will not prevent dismissal.” Shabazz v. Tex. Youth Comm’n, 300 F. Supp. 2d 467, 470 (N.D. Tex. 2003). “Factual allegations must be enough to raise a right to relief above the speculative level.” Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 16 of 31 PageID 4523 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 9 Twombly, 550 U.S. at 555 (emphasis added). Only then do those factual allegations fulfill the requirement of Rule 8(a)(2) that the Complaint provide the defendant with “fair notice of what the … claim is and the grounds upon which it rests.” Id. 2. Plaintiff Fails to State a Claim Against Methodist for a RICO Conspiracy. Plaintiff alleges Methodist and Defendants Jackson and Oscar San Miguel (“San Miguel”), as well as non-party attorney Barbara Jordan (“Jordan”), were engaged in a RICO conspiracy in violation of 18 U.S.C. Section 1962(d), which makes it unlawful to conspire to violate RICO. Because of the cost and stigma of defending RICO claims, courts must closely scrutinize them and “should strive to flush out frivolous RICO allegations at an early stage of the litigation.” Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir. 1990). The burden of asserting clear and understandable allegations falls squarely on the plaintiff, who cannot avoid that obligation by filing a confusing complaint that requires the court or the defendant to strain in an attempt to comprehend the incomprehensible. See, e.g., Old Time Enterprises, Inc. v. Int’l Coffee Corp., 862 F.2d 1213, 1218 (5th Cir. 1989) (dismissing RICO allegations where the plaintiff’s pleadings “do not state a RICO claim against defendants with sufficient intelligibility for a court or opposing party to understand whether a valid claim is alleged and if so what it is.”) As a threshold matter, each subsection of Section 1962 has three common elements that apply to all RICO claims. Specifically, to adequately state any RICO claim, there must be (1) a RICO person, (2) a pattern of racketeering activity, and (3) a RICO enterprise. See, e.g., St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 439 (5th Cir. 2000). Even if a plaintiff can adequately plead these three common elements (which Plaintiff here cannot), additional substantive pleading requirements must be met for each individual subsection. See Elliot v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989) (commenting on “deceptively simple” nature of Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 17 of 31 PageID 4524 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 10 common elements because “each concept is a term of art which carries its own inherent requirements of particularity”). Although Plaintiff’s RICO claim is wholly deficient, Methodist will specifically address Plaintiff’s failure to plead sufficient facts to establish a “pattern of racketeering activity” and an appropriate enterprise. a. Plaintiff Fails to Plead a “Pattern of Racketeering Activity.” Racketeering activity must consist of at least two predicate offenses, defined in RICO as “any act or threat involving” certain state law crimes or any act indictable under specified federal statutes and certain federal offenses. 18 U.S.C. § 1961(1); Dennis v. General Imaging, Inc., 918 F.2d 496, 511 (5th Cir. 1990). To establish a pattern of racketeering activity, a plaintiff must allege: (1) at least two predicate acts of racketeering activity, and (2) a pattern of such acts. See id. at 511. Plaintiff has not and cannot make any such showing. i. Plaintiff has not sufficiently pled predicate acts. The Fifth Circuit has recognized that “to establish a civil RICO conspiracy, a RICO conspiracy plaintiff [must] allege injury from an act that is analogous to an act of tortious character, meaning an act that is independently wrongful under RICO.” Davis-Lynch, Inc. v. Moreno, 667 F.3d 539 (5th Cir. 2012) (quoting Beck v. Prupis, 529 U.S. 494, 505 (2000)) (reversing grant of summary judgment to plaintiff on its RICO conspiracy claim because it failed to present any evidence of an act independently wrongful under RICO). Only crimes prohibited in state statutes and listed in Section 1961(1) can serve as predicate offenses for the purpose of a RICO claim. See Ennis v. Edwards, No. 02-CV-0769, 2003 WL 1560113, at *4 n. 16 (E.D.La. Mar. 25, 2003). First, in the Complaint, the only potential predicate acts identified by Plaintiff are vague references to the “use of mail or wires” to send Plaintiff information regarding his legal Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 18 of 31 PageID 4525 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 11 proceedings. [Fourth Amended Complaint, Doc. 171, ¶¶12 and 17] To the extent Plaintiff is asserting mail and wire fraud, he has failed to adequately plead these predicate acts. RICO mail fraud and wire fraud require, inter alia, evidence of intent to defraud, that is, evidence of “a scheme to defraud by false or fraudulent pretenses, representation, or promises.” Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404, 428 (5th Cir.), cert. denied, 498 U.S. 895 (1990). It is entirely unclear from the Complaint how communicating with Plaintiff by mail or wire concerning the proceedings against him could constitute fraud, let alone mail or wire fraud. Further, mail and wire fraud must be pled with particularity in conformance with Rule 9(b) and cannot be based on conclusory allegations or speculation. See Oblio Telecom, Inc. v. Patel, 08- CV-0279, 2009 WL 1650481 (N.D. Tex. June 10, 2009) (dismissing plaintiff’s RICO claim where the plaintiff failed to plead specific facts that the defendant used the mails or wires to execute their scheme, the dates of the communications, or the content of the communications). Indeed, in cases in which a plaintiff alleges fraud as a predicate act for RICO claims, “Rule 9(b) calls for the complaint to ‘specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiffs contend the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements.’” 4 K &D Corp. v. Concierge Auctions, LLC, 2 F. Supp.3d 525 (S.D. N.Y. 2014), quoting Moore v. PaineWebber, Inc., 189 F.3d 165, 173 (2d Cir.1999). Plaintiff’s vague references to the use of mail and wire to mail legal documents are entirely insufficient to support the predicate acts of mail and wire fraud. See e.g. Curtis & Associates, P.C. v. Law Offices of David M. Bushman, Esq., 758 F.Supp.2d 153 (E.D. N.Y. 2010) (holding attorney’s allegations that three of his former clients and their current legal counsel engaged in “litigation activities,” such as mailing legal documents and requests for adjournments, in connection with their “phony” and “frivolous” legal Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 19 of 31 PageID 4526 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 12 malpractice actions against attorney, were insufficient to plead predicate acts of mail and wire fraud, as required to state RICO claim). Second, Plaintiff’s attempts to “incorporate” the unidentified predicate acts he set forth against Jackson in his improperly filed MPSJ [Doc. 151], and the unidentified predicate acts he set forth against Jackson and San Miguel in the (deficient and now defunct) Third Amended Complaint [Doc. 80], are legally impermissible. While Rule 10(c) permits “a statement in a pleading” to be adopted by reference in another pleading or motion, courts routinely reject the wholesale adoption of a pleading and require that a pleading invoking incorporation by reference specifically identify which portions of the prior pleading are being adopted. See e.g. Wolfe v. Charter Forest Behavioral Health Systems, Inc., 185 F.R.D. 225 (W.D. La. 1999); Lowden v. William M. Mercer, Inc., 903 F.Supp. 212, 216 (D.Mass.1995) (finding Rule 10(c) requires a later pleading to specifically identify portions of a prior pleading for proper incorporation). In Wolfe, the court found the plaintiff’s generic incorporation of a prior complaint was ineffective to properly incorporate her previously pled retaliation claim. Id. at 229. The court recognized that adoption by reference in later complaints must be done with a degree of specificity and clarity which would enable the responding party to easily determine the nature and extent of the incorporation. Id. Otherwise, the responding party - and the court - would be required to “sift through all [the plaintiff’s] prior pleadings and compare them with the final complaint line by line.” Id. Similarly, in Muhammad v. Bethel-Muhammad, Civil Action No. 11-0690-WS-B, 2012 WL 1854564 (S.D. Ala. May 21, 2012), the plaintiff filed an amended complaint purporting to incorporate into his amended complaint the 100-page original complaint that was previously ruled legally improper. The court rejected this attempt, noting Rule 10(c) allows statements to be adopted - not pleadings - and incorporation by reference requires Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 20 of 31 PageID 4527 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 13 specificity and clarity of the statements being incorporated. In sum, the court stated, “[t]he plaintiff’s sweeping reference to his 100-page complaint represents precisely the ‘boiler plate safety valve’ [courts] condemn.” Id. at *11, n. 16 (internal quotation omitted). As in Wolfe and Muhammad, Plaintiff’s attempted incorporation of prior filings should be rejected as invalid. Initially, nothing in Rule 10(c) allows for the incorporation of statements from a motion for summary judgment - particularly one dismissed because it was improperly filed. Courts addressing the issue have found that according to its plain meaning, Rule 10(c) does not apply to filings outside of pleadings, e.g., documents other than the complaint, answer, and answer to a counterclaim designated as a counterclaim. See Valvanis v. Milgroom, Civil No. 06-00144 JMS-KSC, 2008 WL 2164652 (D. Hawaii, May 22, 2008) (citing Fed.R.Civ.P. 7(a)) (defining “pleadings” as opposed to “motions”); Horsley v. Feldt, 304 F .3d 1125, 1134 (11th Cir. 2002) (Rule 10(c) applies to “pleadings” and not “motions”). Thus, Plaintiff’s attempt to incorporate vague portions of his MPSJ is impermissible and should be disregarded. See Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th Cir. 1996) (holding the incorporation of substantive material from briefs is not authorized by the Federal Rules of Civil Procedure and upholding district court’s decision to strike the incorporations). Moreover, Plaintiff’s incorporation of his legally deficient and defunct Third Amended Complaint is similarly invalid because the purported incorporation is not sufficiently specific for Methodist (who is not alleged to have committed any predicate acts) to discern which portions of the Third Amended Complaint Plaintiff references and incorporates. Plaintiff’s Third Amended Complaint is 189 pages of confusing and convoluted verbosity. This scenario is precisely why courts have found generic incorporation invalid and affirmatively require specific reference to the incorporated statements. Methodist should not be required to comb through the Third Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 21 of 31 PageID 4528 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 14 Amended Complaint - a complaint this Court found warranted dismissal - to search for alleged predicate acts allegedly committed by the purported conspirators. Accordingly, Plaintiff’s attempted incorporation of alleged predicate acts by Jackson and San Miguel from his Third Amended Complaint should be disregarded. See Ghazzaoui v. Anne Arundel County, Md., Civil Action No. ELH-14-1410, 2014 WL 3973037 (D. Md., Aug. 11, 2014) (striking purported incorporation from proposed amended complaint that lacked the required clarity and specificity). Because Plaintiff failed to sufficiently allege at least two predicate acts (or any, for that matter) in support of his RICO conspiracy claim, this claim fails as a matter of law and should be dismissed. ii. Plaintiff has not sufficiently pled a “pattern” of racketeering activity. Even if Plaintiff had properly pled the alleged mail fraud and wire fraud (or any predicate acts), Plaintiff must still show a pattern of racketeering activity that includes two or more acts of racketeering. See 18 U.S.C. §1961(5). A “‘pattern’ requires both that the acts are ‘related’ to each other and that they have ‘continuity.’” In re Burzynski, 989 F.2d 733, 742 (5th Cir. 1993). “It is this factor of continuity plus relationship which combines to produce a pattern.” H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). The plaintiff must allege facts showing that the predicate acts are related, i.e., they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” H.J., Inc., 492 U.S. at 240. Further, the continuity element requires that the related acts “constitute or threaten long-term criminal activity.” Burzynski, 989 F.2d at 742 (citing H.J., Inc., 492 U.S. at 239). Plaintiff fails to plead any facts in his Fourth Amended Complaint to support the type of long-term criminal activity contemplated by Burzynski. Although Plaintiff baldly asserts the Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 22 of 31 PageID 4529 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 15 (inadequate) predicate acts are related, he offers no facts - only conclusory statements such as they “all served to lessen suspicion about the hospital’s firing of the plaintiff” and “all affected interstate commerce.” [Fourth Amended Complaint, ¶12] Such conclusory statements are inadequate to establish a pattern of any activity, let alone racketeering, which is fatal to Plaintiff’s RICO claim. See e.g. Meer v. Dennis Dillon Auto Park & Trick Center, Inc., No. 1:12-CV-025-BLW, 2013 WL 5410018 (D. Idaho, Sept. 24, 2013) (finding conclusory allegations were insufficient to state a RICO claim). Accordingly, Plaintiff’s RICO conspiracy claim against Methodist must be dismissed because he failed to plead a pattern of racketeering activity. b. Plaintiff Fails to Adequately Plead a RICO Enterprise. Plaintiff’s RICO conspiracy claim against Methodist should be dismissed for the additional reason that Plaintiff has not and cannot establish a RICO enterprise-a required element of his RICO claim. The establishment of a RICO enterprise must be pleaded using specific facts, not merely conclusory allegations. Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (Tex. 1987); see also Stanissis v. DynCorp. Int’l LCC, Nos. 3:14-CV-2736-D and 3:15-CV-2026-D, 2015 WL 9478184, at *4 (N.D. Tex. Dec. 29, 2015). Because “enterprise” is a specific term that means more than just a group of co- conspirators acting with a common scheme, pleading a RICO enterprise is a demanding exercise. “RICO defines an enterprise as ‘any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.’” Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 673 (5th Cir. 2015); see also 18 U.S.C. § 1961(4). An “association-in-fact enterprise is a group of persons associated together for a common purpose of engaging in a course of conduct . . . proved by evidence of an ongoing organization, Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 23 of 31 PageID 4530 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 16 formal or informal, and by evidence that the various associates function as a continuing unit.” Boyle v. United States, 556 U.S. 938, 945-46 (2009) (citations omitted). An association-in-fact enterprise “(1) must have an existence separate and apart from the pattern of racketeering, (2) must be an ongoing organization and (3) its members must function as a continuing unit as shown by a hierarchical or consensual decision making structure.” Calcasieu Marine Nat’l Bank v. Grant, 943 F.2d 1453, 1461 (5th Cir. 1991); Montesano, 818 F.2d at 427 (quoting United States v. Turkette, 452 U.S. 576, 583 (1981)). Plaintiff’s allegations in the Fourth Amended Complaint regarding an “enterprise” amount to nothing more than a recitation of the required element followed by conclusory, speculative, and legally insufficient assertions purporting to satisfy the element. For example, to show an “existence separate and apart from the pattern of racketeering,” Plaintiff contends that Methodist, Jackson, San Miguel, and Jordan worked together to litigate against Plaintiff in his prior lawsuits and the Texas Medical Board proceedings and that this “association” was “separate and apart from the pattern of racketeering” alleged. To show an “ongoing organization,” Plaintiff alleges that all Defendants worked together to litigate against him between January 2011 and 2013. Finally, to establish a continuing unit, Plaintiff baldly alleges that “the MHD enterprise consisted of both consensual and hierarchical elements.” [Fourth Amended Complaint, Doc. 171, ¶¶4-6] However, Plaintiff fails to identify any facts showing such a structure and only offers conclusory assertions that the Hospital and Jackson made decisions in the first lawsuit and were later joined by the remaining members. These types of allegations, even if taken as true for the purpose of this Motion to Dismiss, cannot establish an association-in-fact RICO enterprise. Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 24 of 31 PageID 4531 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 17 In Stanissis, the plaintiff attempted to allege an association-in-fact enterprise through allegations that the alleged enterprise members worked together and that the entities existed not only to defraud the plaintiff, but to engage in other business activities. The court found the plaintiff’s allegations were conclusory and insufficient to plead a RICO enterprise, and specifically noted there were no facts alleged that would enable the court to reasonably infer that the entities functioned as a continuing unit. See id. at *4. Because the plaintiff did not meet a single component of the required enterprise element, the plaintiff’s RICO claim was dismissed. See id. The result should be the same here. c. Plaintiff Fails to State a Claim Under 18 U.S.C. Section 1962(d). Even if Plaintiff could establish the common RICO elements (which he cannot), Plaintiff cannot establish a RICO conspiracy under 18 U.S.C. Section 1962(d) (“Section 1962(d)”). “[T]o prove a RICO conspiracy [under Section 1962(d)], the [plaintiff] must establish (1) that two or more people agreed to commit a substantive RICO offense and (2) that the defendant knew of and agreed to the overall objective of the RICO offense.” Trugreen Landcare LLC v. Scott, 512 F. Supp. 2d 613, 625 n.11 (N.D. Tex. 2007) (quoting United States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005)). “[B]ecause the core of a RICO civil conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement.” Tel-Phonic Servs. Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1140 (5th Cir. 1992). Here, Plaintiff alleges in a conclusory fashion that the purported enterprise “conspired to deprive him of his right to freely practice medicine and, to conceal the hospital’s violation of his due process rights on May 20, 2010.” [Fourth Amended Complaint, Doc. 171,¶2] Nowhere does Plaintiff allege facts from which this Court could infer that Methodist was a party to any agreement to commit predicate acts of racketeering or any substantive RICO offense. See Crowe Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 25 of 31 PageID 4532 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 18 v. Henry, 43 F.3d 198, 206 (5th Cir. 1995). Because Plaintiff has not alleged a specific agreement to commit predicate acts (and cannot do so), Plaintiff’s Section 1962(d) RICO conspiracy claim against Methodist must be dismissed. See Orthoflex, Inc. v. ThermoTek, Inc., Nos. 3:11-CV-0870-D and 3:10-CV-2618-D, 2012 WL 2864510, at *4 (N.D. Tex. July 12, 2012) (dismissing RICO conspiracy claim for lack of agreement to engage in a substantive RICO offense). 3. Plaintiff’s Civil Conspiracy Claims Under 42 U.S.C. Sections 1983 and 1985 Are Time-Barred. Plaintiff’s alleged conspiracy claims under 42 U.S.C. Section 1983 (“Section 1983”) and 42 U.S.C. Section 1985 (“Section 1985”) against Methodist are time-barred and should be dismissed as a matter of law. Because there is no federal statute of limitations for actions brought pursuant to Section 1983 and Section 1985, federal courts borrow the forum state’s general personal injury limitations period. See Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992) (addressing statute of limitations under Section 1983); Green v. Grampre, 388 Fed. App’x 437, 438 (5th Cir. 2010) (addressing statute of limitations under Section 1985). Texas has a two- year limitations period for personal injury actions. See Stanley v. Foster, 464 F.3d 565, 568 (5th Cir. 2006); Tex. Civ. Prac. & Rem. Code §16.003(a). A cause of action pursuant to either Section 1983 or Section 1985 “accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Jackson, 950 F.2d at 265 (citations omitted). Stated differently, the limitations period begins to run “when the plaintiff is in possession of the critical facts that he has been hurt and who has inflicted the injury.” Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994) (citations omitted); Russell v. Board of Trustees, 968 F.2d 489, 493 (5th Cir.1992). Here, Plaintiff first asserted his Section 1983 and Section 1985 claims against Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 26 of 31 PageID 4533 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 19 Methodist in his Third Amended Complaint, which was filed on June 1, 2016 [Doc. 62] and recognized and docketed by the Court on July 8, 2016 [Doc. 80]. Thus, claims arising from any alleged injuries known to Plaintiff prior to June 1, 2014 are time-barred. For his Section 1983 civil conspiracy claim, Plaintiff complains of alleged defamation in 2013 when Methodist submitted affidavits supporting its Motion for Summary Judgment in Plaintiff’s first lawsuit (which were later utilized as exhibits by the Texas Medical Board), the suspension of his license to practice medicine in Texas in 2013, and the filing of a second complaint by the Texas Medical Board in April 2014. [Fourth Amended Complaint, Doc. 171, ¶¶26-31; Public Verification/Physician Profiles for Jason Levon Simmons, attached hereto as Exhibit “1.”2] All of these alleged injuries occurred before June 1, 2014 and were known to Plaintiff. Any argument to the contrary is belied by Plaintiff’s history of complaints and litigation to redress his “rights.” Accordingly, Plaintiff’s Section 1983 civil conspiracy claim is time-barred and must be dismissed. Plaintiff’s Section 1985 civil conspiracy claims are likewise time-barred. These claims are premised on the alleged denial of “due process” in his legal proceedings before this Court (i.e., in his first two lawsuits against Methodist), the Texas Medical Board, and Travis County. [Fourth Amended Complaint, Doc. 171, ¶¶32-36] Like his Section 1983 allegations, these alleged “injuries” (with the exception of the dismissal of his second lawsuit in May 2015) were known to Plaintiff prior to June 1, 2014 and are thus outside of the limitations period. Consequently, Plaintiff’s Section 1985 civil conspiracy claims premised on injuries known before June 1, 2014, are also time-barred and must be dismissed. 2 The Court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment. See Lewis v. Wells Fargo Bank, N.A., 939 F.Supp.2d 634 (N.D. Tex. 2013). Plaintiff’s disciplinary action before the Texas Medical Board is a matter of public record. Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 27 of 31 PageID 4534 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 20 4. Plaintiff Fails to State Any Claim Against Methodist for Civil Conspiracy. Plaintiff’s Sections 1983 and 1985 civil conspiracy claims fail for the additional reason that Plaintiff fails to plead actual facts, as opposed to conclusory allegations, to support these claims. To establish a Section 1983 conspiracy claim, a plaintiff must show that the private and public actors entered into an agreement to commit an illegal act, and the plaintiff's constitutional rights were violated. See Lee v. Whispering Oaks Home Owners’ Ass’n, 797 F.Supp.2d 740 (W.D. Tex. 2011). To establish a Section 1985 conspiracy claim, a plaintiff must show that a racial or class-based discriminatory animus lay behind the conspiracy and the conspiracy aimed to violate rights protected against private infringement. See Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261 (5th Cir. 2001). Courts have recognized that conspiracy claims must be pled with some degree of specificity, and vague and conclusory allegations unsupported by material facts are not sufficient to state a claim. See e.g. Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Suber v. Guinta, 902 F.Supp.2d 591, 608 (E.D. Penn. 2012) (holding an allegation of conspiracy is insufficient to sustain a cause of action under section 1985 and that it is not enough to use the term “conspiracy” without setting forth supporting facts that tend to show an unlawful agreement). Plaintiff’s Fourth Amended Complaint merely highlights the speculative nature of his alleged civil conspiracy claims. For example, for his Section 1985 conspiracy claim, Plaintiff merely asserts Methodist “was involved in a conspiracy.” [Fourth Amended Complaint, Doc. 171, ¶32] Plaintiff, however, fails to identify any co-conspirator or allege any facts of an agreement. For his Section 1983 conspiracy claim, Plaintiff fails to allege any specific agreement between Methodist and Jordan, the alleged person acting under color of law. These Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 28 of 31 PageID 4535 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 21 are key, essential elements of Plaintiff’s civil conspiracy claims. See Hunt v. City of Toledo Law Dept., 881 F.Supp.2d 854 (N.D. Ohio 2012) (recognizing the elements of a civil conspiracy claim include an agreement between two individuals); Stepnes v. Ritschel, 771 F.Supp.2d 1019 (D. Minn. 2011). The failure to sufficiently plead the required elements is fatal to Plaintiff’s civil conspiracy claims and those claims must therefore be dismissed. See e.g. Small v. Dallas County, Tex., 170 Fed. App’x 943 (5th Cir. 2006) (affirming dismissal of civil rights conspiracy claims that were based on nothing more than conclusory allegations); Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982) (holding that mere conclusory allegations of conspiracy cannot, absent reference to material facts, state substantial claim of civil conspiracy under Section 1983); Wilson v. Jackson, 14-CV-3748, 2014 WL 6901810 (N.D. Tex. Dec. 8, 2014) (“[B]y the mere mention of conspiracy, [p]laintiff has not pled an agreement between the [d]efendants to inflict a wrong or injury and an overt act that results in damages.”). 5. Plaintiff’s Breach of Contract Claims Are Time-Barred. Plaintiff alleges eleven “counts” of breach of contract against Methodist - all of which allegedly occurred in conjunction with his separation from Methodist in May 2010. [Fourth Amended Complaint, Doc. 171, ¶¶39-52] Even if Plaintiff could establish an enforceable contract/agreement (which he has not), all of Plaintiff’s breach of contract claims are barred by the statute of limitations. Under Texas law, breach of contract claims are subject to a four-year statute of limitations. See Tex. Civ. Prac. & Rem. Code § 16.004; see also Smith v. Intern., Inc. v. Egle Group, LLC, 490 F.3d 380 (5th Cir. 2007). A breach of contract claim “accrues” when the contract is breached. See Capstone Healthcare Equipment Services, Inc. ex rel. Health System Group, L.L.C. v. Quality Home Health Care, Inc., 295 S.W.3d 696 (Tex.App.-Dallas 2009, pet. denied). Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 29 of 31 PageID 4536 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 22 Here, the earliest Plaintiff filed his breach of contract claims against Methodist was June 1, 2016. Thus, any alleged breach of contract prior to June 1, 2012 is time barred. Because all of Plaintiff’s breach of contract claims accrued prior to June 1, 2012, they are each time-barred and must be dismissed. IV. CONCLUSION For the foregoing reasons, Methodist respectfully requests that the Court grant this Motion to Dismiss in its entirety and dismiss all of Plaintiff’s claims against Methodist with prejudice. Respectfully submitted, /s/ Stephanie Johnson Manning Sean C. Urich Texas Bar No. 24033287 sean.urich@ogletreedeakins.com Stephanie Johnson Manning Texas Bar No. 24099422 stephanie.manning@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Preston Commons West 8117 Preston Road, Suite 500 Dallas, Texas 75225 (214) 987-3800 (214) 987-3927 (Fax) ATTORNEYS FOR DEFENDANT METHODIST HOSPITALS OF DALLAS Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 30 of 31 PageID 4537 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINTAND BRIEF IN SUPPORT Page 23 CERTIFICATE OF SERVICE I hereby certify that on January 23, 2017, the following document was electronically transmitted to the Clerk of the Court using the ECF system of filing. A Notice of Electronic Filing will be sent by operation of the ECF system to the following ECF registrants: Jason Simmons - jsimmsmd@gmail.com Ray Jackson - rjackson@jacksonfirm.net Alison H. Moore - amoore@thompsoncoe.com Oscar San Miguel - Oscar@osmlaw.com /s/ Stephanie Johnson Manning STEPHANIE JOHNSON MANNING 28381838.1 Case 3:15-cv-01700-D Document 173 Filed 01/23/17 Page 31 of 31 PageID 4538 EXHIBIT 1 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 1 of 11 PageID 4539 Welcome to the TMB Website Page 1 of 7 PUBLIC VERIFICA PHYSICIAN PROFILE PHYSICIAN NAME: JASON LEVON SIMMONS MD DATE: 09/13/2016 THE INFORMATION IN THIS BOX HAS BEEN VERIFIED BY THE TEXAS MEDICAL BOARD Date of Birth: 1978 License Number: N4103 Full Medical License Issuance Date: 08/21/2009 Expiration Date of Physician's Registration Permit: 05/31/2013 Registration Status: CANC NON-PAYMENT Disciplinary Status: ORDER TERMINATED BECAUSE LICENSE 1S NO LONGER ACTIVE Licensure Status: NONE Registration Date: 06/11/2014 Disciplinary Date: 06/11/2014 Licensure Date: NONE Medical School of Graduation: At the time of licensure, TMB verified the physician's graduation from medical school as follows: UNIV OF SOUTH CAROLINA SCH OF MED, COLUMBIA Medical School Graduation Year: 2007 TMB Filings, Actions and License Restrictions The Texas Medical Board has the following board actions against this physician. (This may include any formal complaints filed by TMB, as well as petitions and/or responses related to licensure contested matters, at the State Office of Administrative Hearings.) View the documents containing action taken by the Board against this individual. View Board Actions Get Adobe Reader Action Date: 07/21/2014 Description: ON JULY 21, 2014, FORMAL COMPLAINT DISMISSED BY SOAH AS A RESULT OF BOARD DISMISSAL WITHOUT PREJUDICE JUNE 27, 2014. Action Date: 06/11/2014 http://reg.tmb.state.tx.us/OnLineVerif/Phys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 2 of 11 PageID 4540 Welcome to the TMB Website Page 2 of 7 Description: ORDER TERMINATED BECAUSE LICENSE NO LONGER ACTIVE. EFFECTIVE 06/11/2014 Action Date: 04/29/2014 Description: ON APRIL 29, 2014, A FORMAL COMPLAINT WAS FILED BY THE BOARD. Action Date: 07/15/2013 Description: ON JULY 15, 2013, THE BOARD ENTERED A FINAL ORDER REGARDING JASON LEVON SIMMONS, M.D., PUBLICLY REPRIMANDING DR. SIMMONS AND REQUIRING DR. SIMMONS TO NOT PRACTICE MEDICINE IN TEXAS UNTIL DR. SIMMONS FULFILLS THE FOLLOWING TERMS: UNDERGOES AN INDEPENDENT MEDICAL EVALUATION WITH A PSYCHIATRIST AND COMPLIES WITH ALL RECOMMENDATIONS FOR CARE AND TREATMENT, PASSES WITHIN ONE YEAR THE MEDICAL JURISPRUDENCE EXAM WITHIN THREE ATTEMPTS, WITHIN ONE YEAR COMPLETES THE VANDERBILT DISRUPTIVE PHYSICIAN'S COURSE, WITHIN ONE YEAR COMPLETES THE ANGER MANAGEMENT COURSE OFFERED BY THE UNIVERSITY OF CALIFORNIA SAN DIEGO PHYSICIAN ASSESSMENT AND CLINICAL EDUCATION (PACE) PROGRAM, WITHIN ONE YEAR COMPLETES 16 HOURS OF CME INCLUDING EIGHT HOURS IN ETHICS AND EIGHT HOURS IN PROFESSIONALISM AND PAYS AN ADMINISTRATIVE PENALTY OF $15,000 WITHIN SIX MONTHS, THIS ORDER RESOLVES A FORMAL COMPLAINT FILED AT THE STATE BOARD OF ADMINISTRATIVE HEARINGS. THE BOARD FOUND DR. SIMMONS ENGAGED IN DISRUPTIVE BEHAVIOR, WAS DISCIPLINED BY HIS PEERS, AND FAILED TO PRACTICE MEDICINE IN AN ACCEPTABLE PROFESSIONAL MANNER. DR. SIMMONS HAS 20 DAYS FROM THE SERVICE OF THE ORDER TO FILE A MOTION FOR REHEARING. NO MOTION FOR REHEARING FILED WITH THE BOARD, THEREFORE THE ORDER DATED JUNE 14, 2013 IS EFFECTIVE JULY 15, 2013. Action Date: 01/03/2013 Description: ON JANUARY 3, 2013, A FIRST AMENDED COMPLAINT WAS FILED BY THE BOARD REFERENCE SOAH DOCKET 503-12-2428.MD Action Date: 11/08/2011 Description: ON NOVEMBER 8, 2011, A FORMAL COMPLAINT WAS FILED BY THE BOARD, SOAH DOCKET 503-12-2428.MD Action Date: 11/04/2011 Description: ON NOVEMBER 4, 2011, DEFAULT ORDER DENIED BY FULL BOARD. SOAH DOCKET 503-11-9087. Action Date: 10/14/2011 Description: ON OCTOBER 14, 2011, ORDER OF DISMISSAL BY SOAH DUE TO MOTION TO REMAND. SOAH DOCKET 503-11-9087.MD Action Date: 08/16/2011 Description: ON AUGUST 16, 2011, A FORMAL COMPLAINT WAS FILED BY THE BOARD SOAH DOCKET 503-11-9087 MD Investigations by TMB of Medical Malpractice Section 164.201 of the Act requires that: the board review information relating to a physician against whom three or more malpractice claims have been reported within a five year period. Based on these reviews, the following investigations were conducted with the listed resolutions. http://reg.tmb.state.tx.us/OnLineVerif/Phys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 3 of 11 PageID 4541 Welcome to the TMB Website NONE Page 3 of 7 Status History Status history contains entries for any updates to the individual's registration, licensure or disciplinary status types (beginning with 1/1/78, when the board's records were first automated). Entries are in reverse chronological order; new entries of each type supersede the previous entry of that same type. These records do not display status type. Should you have any questions, please contact our Customer Information Center at 512-305-7030 or verifcictmb.state.tx.us Status Code: CD Effective Date: 07/21/2014 Description: COMPLAINT DISMISSED Status Code: CN Effective Date: 06/11/2014 Description: CANC NON-PAYMENT Status Code: OT Effective Date: 06/11/2014 Description: ORDER TERMINATED BECAUSE LICENSE IS NO LONGER ACTIVE Status Code: FB Effective Date: 04/29/2014 Description: COMPLAINT FILED Status Code: RB Effective Date: 07/15/2013 Description: UNDER BOARD ORDER Status Code: DQ Effective Date: 06/30/2013 Description: DELINQUENT-NON PAYMENT Status Code: FB Effective Date: 01/03/2013 Description: COMPLAINT FILED Status Code: FB Effective Date: 11/08/2011 Description: COMPLAINT FILED Status Code: FB Effective Date: 08/16/2011 Description: COMPLAINT FILED Status Code: AC Effective Date: 11/13/2009 Description: ACTIVE Status Code: LI Effective Date: 08/21/2009 Description: LICENSE ISSUED THE INFORMATION IN THIS BOX WAS REPORTED BY THE LICENSEE AND HAS NOT BEEN VERIFIED BY THE TEXAS MEDICAL BOARD http://reg.tmb.state.tx.us/OnLineVerifiPhys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 4 of 11 PageID 4542 Welcome to the TMB Website Page 4 of 7 Gender: MALE Current Primary Practice Address: 2309 ARTHUR AVE. BRONX, NY Years of Active Practice in the U.S. or Canada: The physician reports that he/she has actively practiced medicine in the United States or Canada for 3 year(s). Years of Active Practice in Texas: The physician reports that, of the above years he/she has actively practiced in the State of Texas for 3 year(s). Specialty Board Certification The physician reports that he/she holds the following specialty certifications issued by a board that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists: NONE Primary Specialty The physician reports his/her primary practice is in the area of INTERNAL MEDICINE. Secondary Specialty The physician did not report a secondary practice area. Name, Location and Graduation Date of All Medical Schools Attended Name: U. OF S. CAROLINA SCHOOL OF MEDICINE Location: COLUMBIA/SC/USA Graduation Date: 05/2007 Graduate Medical Education in The United States Or Canada Program Name: DALLAS METHODIST HOSPITAL Location: DALLAS Begin Date: 07/2007 Type: INTERNSHIP End Date: 06/2008 Specialty: INTERNAL MEDICINE Program Name: DALLAS METHODIST HOSPITAL Location: DALLAS/TX Begin Date: 07/2008 Type: RESIDENCY End Date: 05/2010 Specialty: INTERNAL MEDICINE http://reg.tmb.state.tx.us/OnLineVerif/Phys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 5 of 11 PageID 4543 Welcome to the TMB Website Page 5 of 7 Hospital Privileges The physician reports that he/she has hospital privileges in the following in the State of Texas: NONE Utilization Review The physician did not report whether he/she provides utilization review. NONE REPORTED Patient Services Accessibility: The physician reports that the patient service area is not accessible to persons with disabilities as defined by federal law. Language Translation Services: The physician reports that the following language translation services are provided for patients: SPANISH. HEARING IMPAIRED Medicaid Participant: The physician reports that he/she does participate in the Medicaid program. Awards, Honors, Publications and Academic Appointments Optional Information The physician may optionally report descriptions of up to five such honors and has reported the following: Description: GOLD HUMANISM HONOR SOCIETY-AP GOLD FOUNDATION HUMANISM & EXCELLENCE IN TEACHING AWARD 2009 Malpractice Information Section 154.006(b)(16) of the Act requires that: a physician profile display a description of any medical malpractice claim against the physician, not including a description of any offers by the physician to settle the claim, for which the physician was found liable, a jury awarded monetary damages to the claimant, and the award has been determined to be final and not subject to further appeal. The physician has the following reportable claims. Description: NONE Criminal History Self-Reported Criminal Offenses:The physician is required to report a description of (1) "any conviction for an offense constituting a felony, a Class A or Class B misdemeanor, or a Class C misdemeanor involving moral turpitude" and (2) "any http://reg.tmb.state.tx.us/OnLineVerif/Phys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 6 of 11 PageID 4544 Welcome to the TMB Website Page 6 of 7 charges reported to the board to which the physician has pleaded no contest, for which the physician is the subject of deferred adjudication or pretrial diversion, or in which sufficient facts of guilt were found and the matter was continued by a court of competent jurisdiction." The physician has reported the following: Description: NONE Criminal history information is also obtained by TMB from the Texas Department of Public Safety. Resulting action, if any, will be reported under the TMB Action and Non-Disciplinary Restrictions section above. Disciplinary Actions By Other State Medical Boards The physician has reported the following: Description: NONE Physician Assistant Supervision Description: NONE Advanced Practice Nurse Delegation Description: NONE Summary of all License/Permit Types To obtain primary source verifications, click name To obtain primary source verifications, click name Issue Date: 07/01/2007 Type: PHYSICIAN IN TRAINING PERMIT 08/21/2009 LICENSED PHYSICIAN 07/01/2009 PHYSICIAN TEMPORARY LICENSE Contact Us 1 Privacy Policy I Accessibility Policy i Compact with Texans I Website Linking Policy Please contact Pre-Licensure, Registration and Consumer Services at (512) 305-7030 t4.4 for assistance. http://reg,Lmb.state.tx.us/OnLineVerif/Phys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 7 of 11 PageID 4545 Welcome to the TMB Website Page 7 of 7 http://reg.tmb. state. tx.us/OnLineVerif/Phys_ReportVerif new. asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 8 of 11 PageID 4546 Welcome to the TMB Website Page 1 of 3 PUBLIC VERIFICATION I PHYSICIAN PROFILE '1.- YSICIAN IN TRAINING PERMIT NAME: JASON LEVON SIMMONS MD DATE: 09/13/2016 THE INFORMATION IN THIS BOX HAS BEEN VERIFIED BY THE TEXAS MEDICAL BOARD Date of Birth: 1978 Permit Number: BP10027620 Permit Type: PHYSICIAN IN TRAINING PERMIT Permit Status: PERMIT TERMINATED Permit Status Date: 8/21/2009 Begin Date: 07/01/2007 Expiration Date: 06/30/2010 End Date: 06/30/2010 Terminated Date: 08/21/2009 Board Action (includes all actions regardless of license/permit type) View the documents containing action taken by the Board against this individual. [ View Board Actions Get Adobe Reader Action Date: 07/21/2014 Description: ON JULY 21, 2014, FORMAL COMPLAINT DISMISSED BY SOAH AS A RESULT OF BOARD DISMISSAL WITHOUT PREJUDICE JUNE 27, 2014. Action Date: 06/11/2014 Description: ORDER TERMINATED BECAUSE LICENSE NO LONGER ACTIVE. EFFECTIVE 06/11/2014 Action Date: 04/29/2014 Description: ON APRIL 29, 2014, A FORMAL COMPLAINT WAS FILED BY THE BOARD. Action Date: 07/15/2013 Description: ON JULY 15, 2013, THE BOARD ENTERED A FINAL ORDER REGARDING JASON LEVON SIMMONS, M.D., PUBLICLY REPRIMANDING DR. SIMMONS AND REQUIRING DR. SIMMONS TO NOT PRACTICE MEDICINE IN TEXAS UNTIL DR. SIMMONS FULFILLS THE FOLLOWING TERMS: UNDERGOES AN INDEPENDENT MEDICAL EVALUATION WITH A http://reg.tmb.state.tx.us/OnLineVerif/Phys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 9 of 11 PageID 4547 Welcome to the TMB Website Page 2 of 3 PSYCHIATRIST AND COMPLIES WITH ALL RECOMMENDATIONS FOR CARE AND TREATMENT, PASSES WITHIN ONE YEAR THE MEDICAL JURISPRUDENCE EXAM WITHIN THREE ATTEMPTS, WITHIN ONE YEAR COMPLETES THE VANDERBILT DISRUPTIVE PHYSICIAN'S COURSE, WITHIN ONE YEAR COMPLETES THE ANGER MANAGEMENT COURSE OFFERED BY THE UNIVERSITY OF CALIFORNIA SAN DIEGO PHYSICIAN ASSESSMENT AND CLINICAL EDUCATION (PACE) PROGRAM, WITHIN ONE YEAR COMPLETES 16 HOURS OF CME INCLUDING EIGHT HOURS IN ETHICS AND EIGHT HOURS IN PROFESSIONALISM AND PAYS AN ADMINISTRATIVE PENALTY OF $15,000 WITHIN SIX MONTHS. THIS ORDER RESOLVES A FORMAL COMPLAINT FILED AT THE STATE BOARD OF ADMINISTRATIVE HEARINGS. THE BOARD FOUND DR. SIMMONS ENGAGED IN DISRUPTIVE BEHAVIOR, WAS DISCIPLINED BY HIS PEERS, AND FAILED TO PRACTICE MEDICINE IN AN ACCEPTABLE PROFESSIONAL MANNER. DR. SIMMONS HAS 20 DAYS FROM THE SERVICE OF THE ORDER TO FILE A MOTION FOR REHEARING. NO MOTION FOR REHEARING FILED WITH THE BOARD, THEREFORE THE ORDER DATED JUNE 14, 2013 IS EFFECTIVE JULY 15, 2013. Action Date: 01/03/2013 Description: ON JANUARY 3, 2013, A FIRST AMENDED COMPLAINT WAS FILED BY THE BOARD REFERENCE SOAH DOCKET 503-12-2428.MD Action Date: 11/08/2011 Description: ON NOVEMBER 8, 2011, A FORMAL COMPLAINT WAS FILED BY THE BOARD. SOAH DOCKET 503-12-2428.MD Action Date: 11/04/2011 Description: ON NOVEMBER 4, 2011, DEFAULT ORDER DENIED BY FULL BOARD. SOAH DOCKET 503-11-9087. Action Date: 10/14/2011 Description: ON OCTOBER 14, 2011, ORDER OF DISMISSAL BY SOAH DUE TO MOTION TO REMAND. SOAH DOCKET 503-11-9087.MD Action Date: 08/16/2011 Description: ON AUGUST 16, 2011, A FORMAL COMPLAINT WAS FILED BY THE BOARD SOAH DOCKET 503-11-9087.M D THE INFORMATION IN THIS BOX WAS REPORTED BY THE LICENSEE AND HAS NOT BEEN VERIFIED BY THE TEXAS MEDICAL BOARD Gender: MALE Current Primary Practice Address: 2309 ARTHUR AVE. BRONX , NY Education Graduation Year: 2007 http://reg.tmb.state.tx.us/OnLineVerif/Phys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 10 of 11 PageID 4548 Welcome to the TMB Website Page 3 of 3 Medical School: UNIV OF SOUTH CAROLINA SCH OF MED, COLUMBIA Program Type: RESIDENT Training Institution: METHODIST HOSPITAL DALLAS (3 YR PROGRAM) Program Specialty: INTERNAL MEDICINE Summary of all License/Permit Types Type: PHYSICIAN IN TRAINING PERMIT LICENSED PHYSICIAN PHYSICIAN TEMPORARY LICENSE Contact Us! Privacy Policy I Accessibility Policy I Compact with Texans I Website Linking Policy Please contact Pre-Licensure, Registration and Consumer Services at (512) 305-7030 # for assistance, Issue Date: 07/01/2007 08/21/2009 07/01/2009 http://reg.tmb,state.tx.ns/OnLineVerif/Phys_ReportVerif new.asp 9/13/2016 Case 3:15-cv-01700-D Document 173-1 Filed 01/23/17 Page 11 of 11 PageID 4549