Opinion
Case No. 03-4184-JAR
April 21, 2004
MEMORANDUM AND ORDER GRANTING MOTIONS TO DISMISS
Plaintiff Dorothy Lewis, proceeding pro se, brings this medical malpractice and wrongful death action on behalf of her father, Vernon Lewis. Plaintiff alleges that her father received inadequate medical care from Doctors Edward Kent Stevenson and Christopher Murray that eventually led to his death. Defendants Stevenson and Murray have both filed a Motion to Dismiss (Docs. 1 5 and 13 respectively) plaintiffs First Amended Complaint (Doc. 5) pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, defendants' motions are granted. The Court further denies plaintiff's Motion for Summary Judgment (Doc. 23), as this motion is in essence a response to defendants' motions to dismiss, and the Court has fully considered the summary judgment motion as a substantive response.
At the outset, the Court recognizes that it should construe a pro se litigant's pleadings liberally, with a less stringent standard than pleadings drawn by attorneys. If the pro se plaintiff's complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [the court] should do so despite the plaintiff's failure to cite proper legal authority, [her] confusion of various legal theories, [her] poor syntax and sentence construction, or [her] unfamiliarity with pleading requirements." At the same time, it is not the proper function of the district court to assume the role of advocate for the pro se litigant. Nor will the court "supply additional factual allegations to round out plaintiff's complaint." With this standard in mind, the Court addresses each of defendants' arguments in turn.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Id.
Id.; see Drake v. City of Fort Coiling, 927 F.2d 1156, 1159 (10th Cir. 1991) ("Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues.")
Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
A. Motions to Dismiss Pursuant to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction
Defendants Stevenson and Murray request that the Court dismiss plaintiff's First Amended Complaint for lack of subject matter jurisdiction. Specifically, defendants allege that plaintiff's claims of medical malpractice and wrongful death are state law claims that do not constitute federal civil rights violations. Plaintiff responds that federal jurisdiction is proper under 28 U.S.C. § 1343, because by their actions, defendants violated the civil rights of her father, and that federal jurisdiction is preferable to state jurisdiction.
Federal courts are courts of limited jurisdiction and, as such, must have a statutory or Constitutional basis to exercise jurisdiction. A court lacking jurisdiction must dismiss the case regardless of the stage of the proceeding when it becomes apparent that jurisdiction is lacking. There is a presumption against federal jurisdiction, and the party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. Mere conclusory allegations of jurisdiction are not enough. Instead, a plaintiff must present facts to show jurisdiction and support those facts with competent evidence.
Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see United States v. Hardage, 58 F.3d 569, 574 (10th Cir. 1995) ("Federal courts have limited jurisdiction, and they are not omnipotent. They draw their jurisdiction from the powers specifically granted by Congress, and the Constitution, Article III, Section 2, Clause 1.") (internal citations omitted).
Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995).
Marcus v. Kansas Dept. of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999).
Montoya, 296 F.3d at 955.
United States ex rel. Rafter, D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999).
Id.
Plaintiff's claim of medical malpractice and wrongful death must be dismissed for lack of subject matter jurisdiction. The only jurisdictional basis suggested by plaintiff is 28 U.S.C. § 1343. However, § 1343 creates no separate rights, but rather confers a remedy for the enforcement of rights arising under the Constitution or federal law. Jurisdiction is only proper under § 1343, if plaintiff alleged conspiracy as mentioned in 42 U.S.C. § 1985, a deprivation of her father's rights under color of state law, or a violation of any Act of Congress providing for the protection of civil rights.
Howard v. State Dept. of Highways of Colorado, 478 F.2d 581, 585 (10th Cir. 1973); Karlin v. Clayton, 506 F. Supp. 642, 646 (D. Kan. 1981).
See 28 U.S.C. § 1343; Karlin, 506 F. Supp. at 646 ("The Court finds that plaintiff has alleged no conspiracy as mentioned in 42 U.S.C. § 1985, no deprivation of his rights under color of state law, and no violation of any Act of Congress providing for the protection of civil rights. Therefore, this Court does not have jurisdiction pursuant to 28 U.S.C. § 1343.").
While plaintiff's Complaint is not a model of clarity, it appears she asserts jurisdiction based on the violation of her father's civil rights. Plaintiff states in her response to defendants' motions, "Murray and Stevenson are not state or government officials in which Color of State Law would apply, but their actions did violate the civil rights of Vernon Lewis under the fifth amendment." Although plaintiff is correct that § 1343 provides federal question jurisdiction for persons to redress deprivations of their civil rights, she has failed to allege a civil rights violation. Rather, plaintiff argues that the medical malpractice and wrongful death claims are proper under Kansas tort law. Numerous courts have held, however, that ordinary tort claims do not rise to the level of constitutional civil rights violations. Because plaintiff has alleged ordinary tort claims, rather than civil rights violations, jurisdiction under § 1343 is lacking and defendants' motions to dismiss must be granted.
E.g., Scott v. Home Choice, Inc., 252 F. Supp.2d 1 129, 1 132 (D. Kan. 2003).
See Buerger v. Southwestern Bell Tel. Co., 982 F. Supp. 1253, 1255-56 (E. D. Tex. 1997) (holding that no civil rights statutes are implicated by the tort of medical malpractice); Meyers v. Trinity Med. Ctr., 983 F.2d 905, 907-08 (8th Cir. 1993) (holding that § 1343 does not contain an affirmative grant of jurisdiction for a state malpractice and wrongful death claim, and affirming district court dismissal on that basis); Rogers v. Provident Hosp., 241 F. Supp. 633, 638-39 (D. N.D. 1965) (where the court rejected the plaintiff's attempt "to clothe [a] garden variety tort claim in the garb of `civil rights' in order to invoke Federal jurisdiction not otherwise available in the absence of diversity of citizenship."); Archuleta v. McShan, 897 F.2d 495, 496 (10th Cir. 1990) (The Civil Rights Act "imposes liability for violations of rights protected by the constitution or laws of the United States, not for violations of duties of care arising out of tort law. Remedies for the latter type of injury must be sought in the state court under the traditional tort-law principles").
B. Motions to Dismiss Pursuant to Rule 12(b)(6) for Failure to State a Claim
Defendants also seek to dismiss plaintiff's case for failure to state a claim upon which relief can be granted. Both Defendants Stevenson and Murray argue that the statute of limitations applicable to plaintiff's state law claims has expired. In addition, defendant Stevenson argues that plaintiff has no standing to bring a survival action. Defendant Murray further contends that the Court must give preclusive effect to certain determinations made in plaintiff's prior lawsuits filed in Wyandotte County, under the doctrine of res judicata. The Court concludes that each of defendant's arguments provides additional grounds for dismissal of plaintiff's case.
1. Statute of Limitations
Defendants argue that plaintiff's claims of medical malpractice and wrongful death are time barred. Plaintiff responds that a four year statute of limitations should apply to her claims based on K.S.A. 60-513(c), and that the savings statute, K.S.A. 60-518, prevents her suit from being untimely. Additionally, plaintiff argues that the instant suit is timely because when she re-filed her Petition in Wyandotte County court on March 1, 2001, she was only one day late and that her lateness of one day "should not bar the statute of limitations" and "one day is not far beyond the expiration of the statute of limitations, still within due time."
The statute of limitations applicable to a claim for wrongful death or a claim for medical malpractice is two years. Plaintiff's argument that a four year statute of limitations applies pursuant to K.S.A. 60-513(c) is misplaced. K.S.A. 60-513(c) establishes when a cause of action accrues:
A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.
K.S.A. 60-513(a)(5) (a)(7) ("The following actions shall be brought within two years: (5) [a]n action for wrongful death [and] (7) [a]n action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.").
Swafford v. Wortman, 2 F. Supp.2d 1429, 1433 (D. Kan. 1998).
Simply, § 60-513(c) operates as a statute of repose, barring any action for medical malpractice brought more than four years after the act constituting malpractice occurred. However, the lawsuit must still be brought within two years from when the fact of injury becomes reasonably ascertainable.
Swafford, 2 F. Supp.2d at 1433.
A review of the chronology of events illustrates that neither the statute of limitations nor the statute of repose saves plaintiff's claims. Plaintiff's father died on August 4, 1998 and defendants last provided care to plaintiff's father on February 22, 1998. Thus, the act giving rise to the lawsuit occurred either on August 4, 1998, or on February 22, 1998, but in any event, occurred more than four years ago, foreclosing plaintiff's argument that the statute of repose makes her claims timely. Moreover, the fact of the injury may have been reasonably ascertainable on August 4, 1998, the day of plaintiff's father's death, and was certainly reasonably ascertainable on September 21, 1998 when plaintiff's original attorney was provided three letters by a medical expert detailing criticisms of care by defendants. Thus, plaintiff must have filed her lawsuit by September 21, 2000 for the suit to be timely. Instead, plaintiff filed the pending case on October 9, 2003, over five years after both the death of her father and the time when plaintiff's medical expert provided detailed reports of findings and conclusions, and the case must be dismissed as untimely.
Plaintiffs argument that her claim is timely pursuant to K.S.A. 60-518 is also inapposite. K.S.A. 60-518 provides:
If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.
Plaintiff essentially argues that because her prior Wyandotte County District Court suit, which was dismissed as untimely, was filed only one day after the six month savings period expired, her prior suit was timely filed. However, this Court may not review the decision of the Wyandotte County District Court to dismiss plaintiff's case. Moreover, whether her prior state lawsuit was properly dismissed has no bearing on whether this suit was timely filed, because her claims still must be filed within the applicable two year statute of limitations and four year statute of repose. Finally, plaintiff may not invoke the savings clause to make the instant lawsuit timely because it has been more than six months since the dismissal of the Wyandotte County District Court suit.
See Kenmen Eng'g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002) (Under the Rooker-Feldman doctrine, "lower federal courts possess no power whatever to sit in direct review of state court decisions"); Johnson v. Riddle, 305 F.3d 1107, 1116 (10th Cir. 2002) ("The Rooker-Feldman doctrine bars a party losing in state court from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights.").
2. Standing
In addition to dismissal for lack of subject matter jurisdiction and an expired statute of limitations period, Defendant Stevenson argues that plaintiff's claims should be dismissed because she has no standing to bring civil rights claims on behalf of her deceased father. Plaintiff responds that "at least two causes of action can arise when a person dies [due] to [the] alleged negligence of another . . . [an] heir of the decedent may bring a wrongful death action . . . [and] Kansas law [allows a] survival action."
Standing under the Civil Rights Statutes is governed by 42 U.S.C. § 1988, which provides that state common law is used to fill the gaps in the administration of civil rights lawsuits. Therefore, plaintiff must have standing under the state wrongful death and survival statutes to bring claim her claims. In Kansas, a wrongful death action may be brought only by the decedent's heirs-at-law for damages suffered by all heirs as a result of the wrongful death. As decedent's daughter, plaintiff qualifies as an heir-at-law and has standing to bring a wrongful death lawsuit. A survival action for injuries suffered by the deceased prior to death must be brought pursuant to K.S.A. 60-1801, not by the heirs-at-law, but rather by the administrator of the estate. However, decedent's estate is not a party to the instant lawsuit, nor has plaintiff pled the requisite administrative capacity. In fact, it appears that the administrator of the decedent's estate is not plaintiff, but Anthony Lewis. Plaintiff's lack of standing to pursue a survival action, thus marks another reason why her Complaint must be dismissed.
See Cossio v. City County of Denver, Colo., 986 F. Supp. 1340, 1344 (D. Kan. 1997), aff'd 139 F.3d 911 (10th Cir. 1998); Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004).
See Cossio, 986 F. Supp. at 1344; Carter v. City of Emporia, Kan., 543 F. Supp. 354, 356 (D. Kan. 1982); Pluet, 355 F.3d at 383.
K.S.A. 60-1902; Tank v. Chronister, 160 F.3d 597, 599 (10th Cir. 1998); Marler v. Hiebert, 960 F. Supp. 253, 254 (D. Kan. 1997).
See K.S.A. 59-504; Johnson v. McArthur 596 P.2d 148, 153 (Kan. 1979).
K.S.A. 60-1801; Marler, 960 F. Supp. at 254.
Plaintiff's prior Petition filed in Wyandotte County District Court on March 1, 2001, (Case No. 01C789), identifies Anthony Lewis as the administrator of the estate.
3. Res Judicata
Finally, defendant Murray argues that the doctrine of res judicata precludes plaintiff from relitigating her claims because the Wyandotte County District Court issued a final and binding decision holding that plaintiff's claims were barred by the statute of limitations. Plaintiff responds that a dismissal on the basis of the statute of limitations is not a dismissal on the merits, so that the doctrine of res judicata does not apply.
Res judicata prevents parties from relitigating a cause of action that has been finally adjudicated. It is founded upon the principle that the party has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction. An issue is res judicata only when there is a concurrence of four conditions, namely, "(1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to action, and (4) identity in quality of the persons for or against whom the claim is made." In this case, there is a concurrence of the four conditions because plaintiff and defendant Murray were parties to the Wyandotte County District Court lawsuit in the same capacities, the earlier action included claims for medical malpractice and wrongful death as does the instant lawsuit, and the same type of relief was requested in the earlier action. Additionally, there was a final adjudication on the merits pursuant to K.S.A. 60-241(b) because the dismissal order in the Wyandotte County District Court case did not state that it was "without prejudice."
Jackson Trak Group By and Through Jackson Jordan, Inc. v. Mid States Port Auth., 751 P.2d 122, 128 (Kan. 1988).
Id.
Id.
See K.S.A. 60-241(b); Crockett v. Medicalodges, Inc., 799 P.2d 1022, 1026 (Kan 1990) ("The first case filed . . . was dismissed involuntarily upon motion of the defendant. This dismissal was an adjudication on the merits under K.S.A. 60-241(b). Since it was not appealed, it is res judicata.").
C. Conclusion
Because federal subject matter jurisdiction is lacking, the statute of limitations on plaintiff's claims has long since expired, plaintiff lacks standing to bring a survival action, and the doctrine of res judicata precludes plaintiff from relitigating her claims, defendants' motions to dismiss must be granted.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Stevenson's Motion to Dismiss (Doc. 15) and Defendant Murray's Motion to Dismiss (Doc. 13) plaintiff's First Amended Complaint (Doc. 5) shall be GRANTED.
IT IS FURTHER ORDERED BY THE COURT that plaintiff's Motion for Summary Judgment (Doc. 23) shall be DENIED.
IT IS SO ORDERED.