Md, Msee, Jd Gabriel G. Atamian v. Assadzadeh, et al., E.D. Pa. Civ. No. 00-cv-03182, 2002 WL 538977 E.D. Pa. Apr. 9,…

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4386
___________
MD, MSEE, JD GABRIEL G. ATAMIAN,
Appellant
vs.
DDS JAMES J. GENTILE; SECRETARY JANE DOE,
ALSO KNOWN AS MS. SHELBY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civil Action No. 07-cv-00241)
District Judge: Honorable John P. Fullam
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 12, 2009
Before: SCIRICA, Chief Judge, CHAGARES and WEIS , Circuit Judges
( Opinion filed July 15, 2009 )
___________
OPINION
___________
PER CURIAM.
Gabriel G. Atamian, proceeding pro se and in forma pauperis, appeals the
District Court’s entry of judgment in favor of appellees. We will affirm.

-- 1 of 7 --

2
Invoking the District Court’s diversity jurisdiction pursuant to 28 U.S.C. §
1332, Atamian brought a complaint against Dr. James Gentile, DDS, and Dr. Gentile’s
secretary, Jane Doe a/k/a Ms. Shelby, in the United States District Court for the District
of Delaware. Apparently dissatisfied with the dental care and treatment provided to him
by Dr. Gentile and his staff beginning on August 17, 2004, Atamian asserted a number of
claims under Pennsylvania law and raised several others based on federal law.
Atamian alleged, inter alia, that Dr. Gentile refused to provide him with
copies of his medical records. Atamian claimed specifically that he was refused a
treatment plan (count I), refused findings of his oral exam (count III) and of a mounted
diagnostic cast (count IV), and that a Pennsylvania detective called and advised him not
to make any additional record requests from Dr. Gentile (count VIII). Atamian further
asserted a state law claim based upon “informed consent” (count II), the existence of a
common law conspiracy by Jewish physicians (count V), dental malpractice based upon
Dr. Gentile’s fabrication of defective and faulty temporaries (count VI), and his failure to
polish and smooth the occlusal surface of a tooth (count VII). Atamian’s final state law
claim alleged that he was slandered by appellees when they told him he was an anti-
Semite (count XI). As for his federal claims, Atamian alleged that appellees engaged in a
conspiracy to deprive him of his “rights and privileges” by telling him they would not
tolerate his anti-Semitism and by giving him “make-believe” dental treatment (count IX).
Atamian also asserted a claim pursuant to Title VI of the Civil Rights Act of 1964 (count

-- 2 of 7 --

3
X). In particular, he alleged that appellees violated his civil rights by discriminating
against him and labeling him as “anti-Semitism.” Atamian sought compensatory and
punitive damages.
In a Memorandum Opinion and Order issued on June 5, 2006, the District
Court for the District of New Jersey dismissed counts V, IX and X of the complaint as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). With respect to the common law
conspiracy claim, the District Court noted that Atamian raised an almost identical claim in
a previous action docketed and dismissed with prejudice at Atamian v. Assadzadeh, et al.,
E.D. Pa. Civ. No. 00-cv-03182, 2002 WL 538977 (E.D. Pa. Apr. 9, 2002), aff’d, C.A. No.
02-2046, 64 Fed. Appx. 348 (3d Cir. Feb. 4, 2003). According to the District Court,
Atamian merely continued his “litany of complaints” from 2002 to 2005, with the sole
allegation against appellees being that his anti-Semitism would not be tolerated. As there
was nothing in Atamian’s complaint to suggest that appellees conspired with others to
deny him dental care or that the alleged anti-Semitism comment was made with the sole
intent of refusing to treat some dental condition, the District Court concluded that the
claim was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). See D.Ct. Mem.
Op. at 4, citing Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1979).
Atamian’s federal conspiracy claim under 42 U.S.C. § 1985(3) fared no
better given his failure to allege that appellees deprived him of equal protection or a
constitutional right. Id., at 6, citing Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).

-- 3 of 7 --

4
Likewise, Atamian’s claim of a violation of the Civil Rights Act of 1964 was missing the
required allegation that he was discriminated against by a program receiving federal
financial assistance. Id., quoting 42 U.S.C. § 2000d; citing Alexander v. Sandoval, 532
U.S. 275, 278 (2001). Accordingly, the District Court concluded that this claim presented
no arguable basis in law or fact, and was likewise subject to dismissal as frivolous under
§ 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 325 (1989). The remaining
claims of the complaint were found to contain cognizable diversity state claims based on
Pennsylvania law, and were ultimately transferred to the United States District Court for
the Eastern District of Pennsylvania at Atamian’s request.
Appellees sought to have the complaint dismissed for Atamian’s failure to
file a certificate of merit, as is required by Pennsylvania Rule of Civil Procedure 1042.3
in a professional liability action. The District Court for the Eastern District of
Pennsylvania originally denied appellees’ motion on the basis of Atamian’s assertion that
he is a fully qualified and duly licensed, albeit non-practicing, physician, and given the
court’s conclusion that some of his claims did not involve professional malpractice.
Appellees thereafter answered the complaint and eventually filed a motion for summary
judgment on the remaining counts.
In a Memorandum Opinion and Order entered on October 17, 2008, the
District Court concluded that its earlier ruling was “unduly generous” to Atamian
considering certain developments which revealed that Atamian is not currently licensed to

-- 4 of 7 --

5
practice medicine in any state, that he has been under psychiatric care for many years, and
has been precluded from practicing medicine because of certain psychiatric issues. After
a hearing, the District Court concluded that its earlier decision was, in fact, “erroneous”
not only because Atamian is not a practicing physician, but because he is not competent to
testify about the practice of dentistry in any event. According to the District Court, not
only should Atamian have been required to provide a certificate of merit, he also violated
Fed. R. Civ. P. 26(a)(2)(C) by failing to disclose the name of any expert witness he
intended to call – the only expert referenced by Atamian was Dr. Gentile himself – and by
failing to provide any expert reports as required by the court’s discovery order. Without
expert testimony, the District Court concluded that Atamian could not possibly succeed in
his action. The District Court further noted that the allegations of dental malpractice
asserted against Dr. Gentile and his secretary are precisely the same as those asserted
against another dentist in the action filed at Atamian v. Assadzadeh, et al., E.D. Pa. Civ.
No. 00-cv-03182 in 2000. For these reasons, the District Court determined that
Atamian’s claims of professional malpractice had to be dismissed.
The remaining claims were likewise found to be lacking in merit and
subject to dismissal. The District Court noted that appellees were under no legal
obligation to continue to provide Atamian dental treatment and that, since they are not
state actors, they are not legally obligated to avoid discrimination against others. Finally,
the District Court concluded that Atamian’s claim that he was defamed because of

-- 5 of 7 --

6
appellees’ accusations that he was anti-Semitic could not be taken seriously given
Atamian’s history of anti-Semitic actions. Accordingly, the District Court granted
appellees’ motion and entered judgment in their favor on October 20, 2008. This timely
appeal followed.
After a careful and independent review of the record, we find that the
District Court properly resolved Atamian’s claims and that appellees were entitled to
judgment as a matter of law for essentially the reasons provided by the District Court.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Brooks v. Kyler, 204 F.3d
102, 105 n. 5 (3d Cir. 2000). To the extent the bulk of his claims are even cognizable as
professional malpractice claims, Atamian clearly failed to demonstrate an ability to
present a prima facie case of dental negligence or lack of informed consent given his
failure to submit any expert evidence or, for that matter, so much as the name of an expert
– other than Dr. Gentile – whose opinion he planned to offer at trial. See Mitzelfelt v.
Kamrin, 584 A.2d 888, 891 (Pa. 1990) (listing elements of medical malpractice claim).
See also Yee v. Roberts, 878 A.2d 906, 912 (Pa. Super. 2005) (requiring expert report to
prove medical malpractice not within ordinary knowledge and experience of lay persons);
Festa v. Greenberg, 511 A.2d 1371, 1376 (Pa. Super. 1986) (requiring same for informed
consent claim).
Additionally, we do not hesitate to agree with the District Court’s
conclusion that Atamian’s defamation claim lacks any and all merit given his history of

-- 6 of 7 --

anti-Semitic statements and actions, many of which have been recounted in pleadings
filed by Atamian himself. See, e.g., D.Ct. Mem. Op. dated 4/09/02 in Atamian v.
Assadzadeh, et al., E.D. Pa. Civ. No. 00-cv-03182, 2002 WL 538977, *4. Regardless of
whether such an allegation even states a claim, see Rybas v. Wapner, 457 A.2d 108, 110
(Pa. Super. 1983)(characterizing person as anti-Semitic is not defamatory), “[t]ruth is an
absolute defense to a claim for defamation in Pennsylvania.” Bobb v. Kraybill, 511 A.2d
1379, 1379 n. 1 (Pa. Super. Ct. 1986) (citation omitted). To the extent Atamian rests his
defamation claim on some other particular part of the letter Dr. Gentile wrote at the
direction of a member of the Nether Providence Police Department – a letter which
memorializes his interactions with Atamian and expresses concern for his personal safety,
as well as that of his wife and staff – Atamian has likewise failed to show that judgment
in favor of appellees was not warranted. Atamian offers no support for the
characterization of any other part of the contents of Dr. Gentile’s letter as defamatory and
none is obvious to us.
We have considered the remaining arguments that Atamian raises on
appeal, and find that they lack merit and warrant no further discussion. Accordingly, we
will affirm the District Court’s entry of judgment in favor of Dr. Gentile and Jane Doe
a/k/a/ Ms. Shelby. Atamian’s request for the imposition of sanctions against appellees is
denied as it is clearly unwarranted. The same holds true for his request that appellees’
“second response” be dismissed, which we likewise deny.
7

-- 7 of 7 --