Opinion
5:21-CV-490-FL
01-27-2022
LEAH CARSON, Plaintiff, v. COMMWELL HEALTH, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., Judge.
This matter is before the court on Plaintiff's (lpplication to proceed informa pauperis [DE-1] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed for lack of jurisdiction.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S . at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327- 28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition .... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256- 57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Corr., 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level ...."' Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding prose, and pleadings drafted by a prose litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. DISCUSSION
Plaintiff Leah Carson, a resident of Cary, North Carolina, brings this action against Defendant Commwell Health, located in Newton Grove, North Carolina. Compl. [DE-1-1) at 1. In response to the prompt, "Jurisdiction in this court is based on," Plaintiff wrote, "This is a Torte [sic] claim, regarding medical malpractice done by Commwell Health. I filed a federal complaint to DHHS which created an additional statute of limitations that was not met." Id. at 2. Plaintiff alleges that a dentist perforated her teeth and gums requiring major surgery and soft tissue grafting. Id. Plaintiff attempted to obtain compensation for her costs through North Carolina malpractice law but has been unable to find legal representation. Id. The North Carolina Dental Board interviewed the dentist, and she admitted to the malpractice and no longer works for Commwell Health. Id. Plaintiff seeks $20,000.00 from Commwell Health for the cost of surgeries, cost of dental work, and loss of employment. Id. at 3. Alternatively, Plaintiff asks the court to waive the just-expired six-month statute oflimitations under federal law, which has prevented Plaintiff from obtaining counsel to pursue a medical malpractice claim. Id.
Having carefully reviewed the allegations of Plaintiffs complaint, there is no discernible federal question presented. The court may exercise jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Here, however, Plaintiffs complaint alleges garden-variety medical malpractice claim governed by state law, and there is no basis on the face of the complaint for federal question jurisdiction. See Hill v. Se. Med. Clinic Red Springs, No. 7:18-CV-158-D, 2019 WL 2111528, at *2 (E.D. N.C. Apr. 22, 2019) ("Plaintiffs medical malpractice dispute is[] 'a claim based on state law,' to be heard in the state courts absent diversity of citizenship jurisdiction." (citing Khan v. WakeMed, No. 5:18-CV-276-D, 2019 WL 1053645, at *3 (E.D. N.C. Feb. 13, 2019))), adopted by 2019 WL 1052000 (E.D. N.C. Mar. 5, 2019).
Plaintiffs complaint does refer to a federal six-month statute of limitations, which may be a reference to the Federal Tort Claims Act ("FTCA") requirement that a plaintiff must first file an administrative claim within two years of the date her claim accrues and then file an action within six months of the federal agency mailing its notice of denial of the administrative claim. 28 U.S.C. § 2401 (b). However, the FTCA provides the exclusive remedy for common law negligence claims against federal employees acting within the scope of their employment. see 28 U.S.C. §§ 1346, 2671- 80. There are no allegations in the complaint from which the court can infer that Comm well Health or the dentist who allegedly committed malpractice are federal employees. Moreover, "the court lacks jurisdiction over a[n] FTCA claim against defendants other than the United States." Carter v. Pellicane, No. 3:19-104-CMC-SVH, 2019 WL 8012206, at *3 (W.D. N.C. Nov. 6, 2019), and Plaintiff has not named the United States as a defendant. see Woods v. Cnty. of Wilson, No. 5:10-CT-3118-BO, 2012 WL 777152, at *3 (E.D. N.C. Mar. 8, 2012) (holding that an FTCA claim "must be brought against the United States of America") (citation omitted); Graham v. Stansberry, No. 5:07-CT-3015-FL, 2008 WL 3910689, at *8 (E.D. N.C. Aug. 20, 2008) ("Even if plaintiff had alleged a claim pursuant to the FTCA, he would be unable to proceed on that claim because he has not named the proper party. The proper party for a suit brought under the FTCA is the United States of America."). Accordingly, there is no basis for the court to exercise its federal question jurisdiction.
Alternatively, there is no basis for the court to exercise its diversity jurisdiction. An action lies within the federal district court's diversity jurisdiction "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . .. citizens of different States" 28 U.S.C. § 1332(a)(1). Complete diversity among the parties is required, which means that no defendant can have the same citizenship as any plaintiff. Wisconsin Dep 't of Corrs. v. Schacht, 524 U.S. 381, 388 (1998); Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935 F.3d 211, 222 (4th Cir. 2019). The plaintiff is required to affirmatively allege facts demonstrating the court's jurisdiction in the complaint. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999). Here, both parties are alleged to be citizens of North Carolina, Compl. [DE-1-1] at 1, and the amount in controversy is below the $75,000.00 threshold. Accordingly, the court cannot exercise jurisdiction on the basis of diversity of citizenship.
Accordingly, it is recommended that Plaintiff's complaint be dismissed without prejudice for lack of subject matter jurisdiction.
III. CONCLUSION
For the reasons stated herein, Plaintiff's application to proceed in forma pauperis 1s ALLOWED, and it is RECOMMENDED that the complaint be dismissed without prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until February 10, 2022, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).