Opinion
Case No. 1:13-cv-673
11-18-2013
AMAR GUEYE, Plaintiff, v. U.C. HEALTH, et al., Defendants.
Weber, J.
Bowman, M.J.
ORDER AND REPORT
AND RECOMMENDATION
Plaintiff, a resident of Cincinnati, Ohio, brings this action under 42 U.S.C. § 1983 against defendants U.C. Health, "the Joint Commission," Ace Property and Casualty Insurance and all U.C. Health Insurance Carriers, the U.S. Department of Health and Human Services, and "Obama and Obama Careless." By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review of plaintiff's complaint to determine whether the complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
In enacting the original in forma pauperis statute, Congress recognized that a "litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or "wholly incredible." Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are "fantastic or delusional" in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A complaint filed by a pro se plaintiff must be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 ("dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim" under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
"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." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded factual allegations as true, but need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although a complaint need not contain "detailed factual allegations," it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. The complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (citations omitted).
Plaintiff, who is proceeding pro se, includes six causes of action in his complaint, all generally relating to the medical care he received at University of Cincinnati Hospital. Plaintiff has included several pages of email correspondence with his complaint. From these documents, it appears that on or about September 3, 2013 plaintiff was being treated for an eye injury at the hospital. During his pre-admission testing, plaintiff was apparently sent to the emergency room due to concerns about his "heart rate and elevations and pressure." (Doc. 1, Complaint, p. 7). Plaintiff disagreed with the need for additional tests and alleges that the tests were ordered because of his race and religious beliefs. Ultimately, it appears that on September 18, 2013 the University of Cincinnati Medical Center terminated their outpatient physician-patient relationship with plaintiff. (See id. at 31). By letter on that date, plaintiff was informed that he would no longer receive continuing treatment at any of the UC Health/University of Cincinnati Medical Center Outpatient clinics and Ambulatory practices; that in order to provide him with the time to find another practitioner, that he could receive continuing services for up to thirty days through the University Hospital Emergency Department; and that plaintiff was not to physically enter the hospital or seek treatment options other than through "legitimate use of the Emergency Department." Id. Plaintiff alleges that he never received the letter and was only informed of the decision to terminate his treatment after arriving at the hospital for an appointment.
In a September 11, 2013 letter attached to the complaint, plaintiff includes an email he sent to a hospital staff member stating "I need to have this procedure done tomorrow or else the Cincinnati University Hospital will have to explain its racist games in court for denying a black man and a Muslim medical treatment on a September 11 day as some type of retaliation against an innocent Muslim." Id. at 6.
In the complaint, plaintiff first brings a claim of discrimination. Id. at I. Second, plaintiff alleges retaliation. In this cause of action, plaintiff claims that his treatment was arbitrarily terminated after plaintiff contacted the media and human rights watch groups "to protect his life from unnecessary and unauthorized experimentations about some fake heart problems Plaintiff never had." Id. at I. In his third cause of action, plaintiff brings a defamation claim in connection with the termination of his treatment. Plaintiff appears to contend that University of Cincinnati Hospital falsely cited his "aggressive behavior" as reason for terminating his treatment. In cause of action four, without further specification, plaintiff claims that the above facts constitute a violation of the Patient Protection and Affordable Care Act. Id. at II. Next, plaintiff claims that the termination of his treatment constituted cruel and unusual punishment in violation of his Eighth Amendment rights. Id. Finally, in cause of action number six, plaintiff alleges "violations of Section 4.2.1" for the negligent and intentional infliction of emotional pain, suffering and loss of earning. Id.
For relief, plaintiff seeks fifteen million dollars in damages. He further requests a federal investigation of all experimentations on patients with heart diseases and high blood pressure.
Liberally construed, plaintiff has stated claims of discrimination and First Amendment retaliation against defendant U.C. Health. Plaintiff has alleged that he was denied medical treatment due to his race and religious beliefs and in retaliation for exercising his First Amendment rights. At this juncture, these claims as well as plaintiff's state law claims against U.C. Health may proceed.
Plaintiff remaining claims should be dismissed. First, plaintiff's Eighth Amendment claim against all defendants should be dismissed because plaintiff has failed to state a claim upon which relief may be granted. "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law." City of Revere v. Mass. General Hosp., 436 U.S. 239, 244 (1983) (quoting Ingraham v. Wright, 430 U.S. 651, 671-672, n.40 (1977)). Because the complaint does not reveal that there had been any formal adjudication of guilt against plaintiff at the time he sought medical care the Eighth Amendment is inapplicable. Id.
Plaintiff has also failed to state a claim for relief against defendants Ace Property & Casualty Insurance and all U.C. Health Insurance Carriers. In order to maintain an action under 42 U.S.C. § 1983, which provides a civil remedy for constitutional rights violations, plaintiff must allege that the defendants acted under color of state law and that their conduct deprived plaintiff of some right secured by the Constitution or laws of the United States. Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 957 (6th Cir. 1986) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986)). Plaintiff's complaint fails to allege facts showing these defendants acted under color of state law.
A private entity or private individual acting on his own cannot deprive a citizen of his constitutional rights. See Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000) (citing Flagg Brothers Inc. v. Brooks, 436 U.S. 149 (1978); Hudgens v. NLRB, 424 U.S. 507 (1976)). Section 1983 does not create a cause of action against a private actor "'no matter how discriminatory or wrongful' the party's conduct." Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). Plaintiff's constitutional claims against the Ace Property & Casualty Insurance and all U.C. Health insurance carriers must be dismissed because plaintiff alleges no facts whatsoever showing the actions of these private defendants "so approximate state action that they may be fairly attributed to the State." Lansing, 202 F.3d at 828 (citation omitted).
To satisfy the "color of state law" prong of Section 1983, plaintiff must allege facts showing that defendants were either 1) acting under the compulsion of the state (state compulsion test); 2) engaged in an activity traditionally reserved to the state (public function test); or 3) its activities were sufficiently close and/or controlled by the state that its actions could fairly be attributed to it (nexus test). See Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003); see also Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003). Plaintiff's complaint fails to allege facts meeting any of the three tests.
"The state compulsion test requires that a state 'exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state.'" Lansing v. City of Memphis, 202 F.3d 821, 829 (6th Cir. 2000) (citation omitted).
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Plaintiff has alleged no facts showing that state law or a state entity significantly encouraged or coerced the defendants' actions such that these defendants may be deemed state actors under the state compulsion test. See Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776, 784 (6th Cir. 2007) (citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (finding no state action even though the state provided a significant portion of the funding of a private corporation, because the state did not appoint board members, select personnel, or make decisions for the organization)). Plaintiff has not alleged facts showing the defendants' activities were ones traditionally reserved to the state. See, e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 157-58 (1978) (holding elections is public function); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-53 (1974) (eminent domain is public function); Marsh v. Alabama, 326 U.S. 501, 505-09 (1946) (company-owned town is public function). Nor has plaintiff alleged facts showing the state had a sufficiently close relationship to the defendants as to be a joint participant and/or interdependent with these defendants. See Campbell, 509 F.3d at 784 (no state action where government entities did nothing more than authorize and approve a contract that provided tax benefits to defendant). Finally, plaintiff has not alleged facts showing defendants either conspired or acted in concert with state officials. Cf. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Plaintiff has failed to allege facts suggesting a sufficient intermingling of state involvement with defendants to support a finding of state action. Therefore, based on the factual allegations presented in the complaint Ace Property & Casualty Insurance and all U.C. Health Insurance Carriers cannot be deemed state actors and plaintiff's constitutional claims under 42 U.S.C. § 1983 against these defendants must be dismissed.
Plaintiff's claims against the remaining defendants, the Joint Commission, U.S. Department of Health, and President Obama, as well as his claim asserting a violation of the Patient Protection and Affordable Care Act (PPACA) must also be dismissed for failure to state a claim. First, plaintiff's sole factual allegation against the Joint Commission is that this defendant is equally as liable as UC Hospital "for their involvement in the operation of its business." Against the U.S. Department of Health, plaintiff claims without elaboration that defendant failed to prosecute the claim number they provided plaintiff. Against "Obama and Obama Careless," plaintiff alleges that defendant "never paid Plaintiff for saving his head in Ohio 2008, he failed to respond to plaintiff['s] multiple emails to inform him about various moratoriums written by Plaintiff for the change he run for, finally he went to Senegal with Michelle Obama, come back and did not bring any 'Sarithia[.]' That is unacceptable!" Finally, plaintiff has provided no factual allegations in support of his PPACA claim.
The complaint provides no factual content or context from which the Court may reasonably infer that these defendants violated plaintiff's rights. The allegations against these defendants amount to legal conclusions couched as factual allegations that fail to state a plausible claim for relief. Twombly, 550 U.S. at 555. The legal conclusions set forth in the complaint need not be accepted as true, and plaintiff must set forth some factual basis for his claims. Id. Plaintiff has failed to do so in this case.
IT IS THEREFORE RECOMMENDED THAT:
The following claims be DISMISSED on the ground that plaintiff has failed to state a claim upon which relief may be granted: (1) plaintiff's claims against the Joint Commission, Ace Property and Casualty Insurance and all U.C. Health Insurance Carriers, the Department of Health and Human Services; and Obama and Obama Careless; and (2) plaintiff's Eighth Amendment and PPACA claims against all defendants. See 28 U.S.C. § 1915(e)(2)(B).
IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the complaint, summons, the separate Order issued this date granting prisoner in forma pauperis status, and this Order and Report and Recommendation upon defendant U.C. Health as directed by plaintiff. All costs of service shall be advanced by the United States.
2. Plaintiff shall serve upon the defendant or, if appearance has been entered by counsel, upon the defendant's attorney, a copy of every further pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the date a true and correct copy of any document was mailed to defendants or their counsel. Any paper received by a district judge or magistrate judge which has not been filed with the clerk or which fails to include a certificate of service will be disregarded by the Court.
3. Plaintiff shall inform the Court promptly of any changes in his address which may occur during the pendency of this lawsuit.
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Stephanie K. Bowman
United States Magistrate Judge
AMAR GUEYE, Plaintiff,
vs. U.C. HEALTH, et al., Defendants.
Case No. 1:13-cv-673
Weber, J.
Bowman, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS after being served with a copy thereof. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent's objections within FOURTEEN DAYS after being served with a copy of those objections. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).