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finding that pro se plaintiff failed to state a claim against Fresenius under § 1983 because Fresenius was a private entity and there were no allegations in the complaint to "support treating Fresenius as a state actor"
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No. 5:19-CV-350-FL
08-21-2019
DOUGLAS E. MCPHAIL, Plaintiff, v. FRESENIUS HEALTH PARTNERS, INC., d/b/a Fresenius Care Navigation Network, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's application to proceed in forma pauperis [DE-1], for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and on Plaintiff's Motion for Temporary Restraining Order ("TRO") and Preliminary Injunction [DE-1-4]. 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 and the motion for a TRO and preliminary injunction be denied.
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 pro se and pleadings drafted by a pro se 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
McPhail, a resident and citizen of Fayetteville, Cumberland County, North Carolina, brings this action against Fresenius Health Partners, Inc. ("Fresenius"), a North Carolina corporation providing transportation services for dialysis patients. Compl. [DE-1-1] ¶¶ 5-6, 12. McPhail is a dialysis patient and has received dialysis treatment for over two years at the Fresenius Dialysis Center located in Spout Springs, Harnett County, North Carolina. Id. ¶¶ 12-13, 20. In 2018, McPhail experienced transportation problems, and he began utilizing Fresenius for transportation to his dialysis treatments in Harnett County. Id. ¶¶ 7, 9. Fresenius is compensated for McPhail's transportation to the dialysis clinic through the Medicaid program. Id. ¶¶ 23-33. On an unspecified date, Plaintiff was "tentatively notified" that the transportation provided by Fresenius "would be ending soon" because Fresenius planned to terminate transportation to dialysis treatment centers located in "an adjoining county." Id. ¶¶ 10-11. McPhail contends that the transportation provided by Fresenius is a government entitlement that cannot be terminated without due process, i.e., a hearing. Id. ¶¶ 15, 34-43. McPhail alleges violations of the Equal Protection and Due Process Clauses of the United States Constitution; 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, and 1988; Title VI of the Civil Rights Act of 1964; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101(b)(4); and state law claims of negligent retention, training, and supervision; negligence; intentional infliction of emotional distress; and negligent infliction of emotional distress. Compl. [DE-1-1] ¶¶ 48-234. McPhail seeks entry of a TRO and permanent injunction prohibiting Fresenius from discontinuing his dialysis transportation, entry of a declaratory judgment that Fresenius violated his civil rights and the United States and North Carolina Constitutions, and compensatory and punitive damages. Id. at 36-38 ¶¶ 1-17.
A. Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Stop Reckless Econ. Instability Caused by Democrats v. Fed. Election Comm'n, 814 F.3d 221, 233 (4th Cir. 2016) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)); see also Robinson v. E. Carolina Univ., 329 F. Supp. 3d 156, 181 (E.D.N.C. 2018). McPhail has failed to allege any facts that would demonstrate he received unequal treatment from others similarly situated for discriminatory reasons. McPhail's allegations that Fresenius notified him of its intent to stop providing transportation service to adjoining counties suggests no intent to discriminate on the part of Fresenius. Accordingly, McPhail has failed to allege sufficient facts to state an Equal Protection claim.
B. Procedural Due Process Claim
The Due Process Clause of the Fourteenth Amendment prevents a state from "depriv[ing] any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV. To succeed on a procedural due process claim, a plaintiff must satisfy three elements: he had a constitutionally cognizable interest, the deprivation of that interest was caused by a form of state action, and the procedures were constitutionally inadequate. See Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013); McKernan v. Hayes, No. 4:18-CV-27-FL, 2019 WL 1767563, at *11 (E.D.N.C. Apr. 22, 2019).
Assuming McPhail has alleged a constitutionally cognizable property interest, he has failed to allege facts that would demonstrate the deprivation of that interest was caused by state action. Private action may be found to constitute state action "(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen." Rodgers v. Waste Indus., Inc., No. 4:12-CV-294-FL, 2013 WL 4460265, at *4 (E.D.N.C. Aug. 19, 2013) (quoting Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993)), aff'd, 553 F. App'x 332 (4th Cir. 2014); see also Mentavlos v. Anderson, 249 F.3d 301, 314 (4th Cir. 2001) (asking whether "there a sufficiently close nexus between the challenged actions of the defendants and the state "such that their actions may be fairly treated as that of the State itself.") (quotations omitted). Additionally, "[a] private party may be considered a state actor by 'conspiring with' a party acting under color of state law." Brown v. Phylbeck, No. 4:18-CV-202-FL, 2019 WL 2745758, at *3 (E.D.N.C. July 1, 2019) (quoting Dennis v. Sparks, 449 U.S. 24, 28 (1980)).
There are no facts alleged that would support a finding that the actions of Fresenius constitute state action. There are no allegations that Fresenius was coerced by or conspired with the state, that the state sought to evade a constitutional duty by delegating it to Fresenius, or that Fresenius performs a function traditionally reserved to the state. See Canfield v. Baylor Med. Ctr., No. 3:05-CV-1828-D, 2006 WL 2460554, at *4 (N.D. Tex. Aug. 23, 2006) (finding a private provider of services (a hospital) was not a state actor where there were no facts alleged to support a conspiracy between the hospital and the state, the hospital did not perform a function traditionally reserved to the state, and there was no nexus between the state and the hospital's actions). McPhail's allegations that Fresenius "is vested with state authority by virtue of NCGS § 131E-177," Fresenius is acting under the color of state law, and Fresenius is a state actor, Compl. [DE-1-1] ¶ 16-17, 113, are conclusory and thus insufficient to state a claim under Twombly, 550 U.S. at 555. Accordingly, because McPhail has not alleged facts from which the court could infer that Fresenius's alleged actions should be construed as state action, he has failed to state a Procedural Due Process claim.
North Carolina General Statute § 131E-177 designates the Department of Health and Human Services as the State Health Planning and Development Agency for the State of North Carolina and empowers it to exercise various powers and duties related to health service facilities.
C. 42 U.S.C. §§ 1981 , 1983, 1986, and 1988
Section 1981 provides protection from racial discrimination in making and enforcing contracts. Hudson v. Volunteers of Am. of Carolinas, No. 5:18-CV-191-FL, 2019 WL 1767564, at *4 (E.D.N.C. Apr. 22, 2019) (citing Woods v. City of Greensboro, 855 F.3d 639, 645 (4th Cir. 2017)). McPhail has alleged no facts that would indicate Fresenius's actions were racially motivated. Accordingly, McPhail has failed to state a § 1981 claim.
Section 1983 provides protection against "deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . by a person acting under color of state law." Brown, 2019 WL 2745758, at *3 (citations omitted). As discussed above, Fresenius is a private entity and there are no allegations that would support treating Fresenius as a state actor. Accordingly, McPhail has failed to state a § 1983 claim.
Section 1985(3) prohibits "two or more persons" from conspiring "for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . ." 42 U.S.C. § 1985(3). "It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation." Everett v. Redmon, No. 7:18-CV-91-FL, 2019 WL 1714455, at *5 (E.D.N.C. Apr. 17, 2019) (quoting Buschi v. Kirven, 775 F.2d 1240, 1251-52 (4th Cir. 1985) (applying the intracorporate conspiracy doctrine to a claim under § 1985)). McPhail alleges that Fresenius alone plans to terminate transportation service and has not alleged any facts that would support a conspiracy for purposes of § 1985(3). McPhail's allegation that "[e]ach defendant by and through its officers, managing agents and/or its supervisors, are jointly and severally liable for their part in this unspoken conspiracy to deprive the plaintiff of his civil rights," Compl. [DE-1-1] ¶ 62, is conclusory and thus insufficient to state a conspiracy claim. Further, there are no allegations that Fresenius's employees "possesse[d] a personal stake independent of [their] relationship to the corporation," or that their "acts were not authorized by the corporation" to justify treating their acts as separate from those of the corporation. Everett, 2019 WL 1714455, at *5 (citing Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 353 (4th Cir. 2013)). Accordingly, McPhail has failed to state a § 1985(3) claim.
Section 1986 makes liable persons who have the power to prevent or aid in preventing a conspiracy under § 1985 but neglect or refuse to do so. 42 U.S.C. § 1986. "A cause of action based upon § 1986 is dependent upon the existence of a claim under § 1985." Everett, 2019 WL 1714455, at *6 (quoting Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985)). Because McPhail has failed to state a § 1985 claim, he consequently has failed to state a § 1986 claim.
Section 1988 provides that the prevailing party in an action to enforce certain statutes, including Sections 1981, 1983, 1985, and 1986, may recover his costs and a reasonable attorney's fee. 42 U.S.C. § 1988. Because McPhail has failed to state a claim under one of these statutes, he is not a "prevailing party" and is not entitled to relief under § 1988. See Remington v. Dipierro, No. 5:17-CV-00374-BR, 2018 WL 3636538, at *3 (E.D.N.C. July 31, 2018), aff'd, 754 F. App'x 201 (4th Cir. 2019).
D. Title VI of the Civil Rights Act of 1964
Section 601 of Title VI of the Civil Rights Act of 1964 provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C.§ 2000d. Title VI prohibits only intentional discrimination. Hawkins v. Cohen, 327 F.R.D. 64, 75 (E.D.N.C. 2018) (citing Alexander v. Sandoval, 532 U.S. 275, 280 (2001)). There are no facts alleged from which the court could infer that Fresenius's plan to terminate transportation services to adjoining counties was motivated by discriminatory intent. Accordingly, McPhail has failed to state a claim under Title VI.
E. Americans with Disabilities Act, 42 U.S.C. § 12101(b)(4)
Section 12101(b)(4) does not itself provide a cause of action, but rather explains one of the ADA's purposes. "The ADA lists among its purposes 'to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment [and to regulate commerce], in order to address the major areas of discrimination faced day-to-day by people with disabilities.'" Brown v. N.C. Div. of Motor Vehicles, 166 F.3d 698, 705 (4th Cir. 1999) (quoting 42 U.S.C. § 12101(b)(4)). Construing McPhail's complaint liberally, to the extent he alleges that Fresenius plans to terminate his transportation to adjoining counties because he is disabled, he has failed to allege any facts from which the court could infer that his disability played a motivating role in Fresenius's action. See J.D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 669-70 (4th Cir. 2019) ("To prevail under Title III of the ADA, a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant owns, leases, or operates a place of public accommodation; and (3) the defendant discriminated against him because of his disability.") (citing Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 502-03 (4th Cir. 2016)(laying out similar standards under Title II of the ADA)); Hawkins, 327 F.R.D. at 73-74 (finding Medicaid recipients failed to state a claim under Title II, 42 U.S.C. § 12132, of the ADA that they were excluded from benefits on account of their disability because they did not allege "sufficient facts to permit an inference that the disability of any of the plaintiffs 'was a motivating factor' in the denial"), modified on recon., No. 5:17-CV-581-FL, 2018 WL 6445416 (E.D.N.C. Dec. 10, 2018). Accordingly, McPhail has failed to state a claim under the ADA.
F. State Law Claims
McPhail alleges state law claims of negligent retention, training, and supervision; negligence; intentional infliction of emotional distress; and negligent infliction of emotional distress. Where it is recommended that McPhail's federal claims be dismissed, the court may decline to exercise supplemental jurisdiction over any remaining state law claims. See 28 U.S.C. § 1367(c)(3) (providing that a court may decline to exercise supplemental jurisdiction if "the district court has dismissed all claims over which it has original jurisdiction"); Chesapeake Ranch Water Co. v. Bd. of Comm'rs of Calvert Cnty., 401 F.3d 274, 277 (4th Cir. 2005) (concluding that having dismissed federal claims, the district court properly declined supplemental jurisdiction of state claims); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (recognizing that under § 1367(c), the district courts "enjoy wide latitude in determining whether or not to retain [supplemental] jurisdiction over state claims when all federal claims have been extinguished") (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Accordingly, it is recommended that the remaining state law claims be dismissed.
G. Motion for TRO and Preliminary Injunction
McPhail seeks entry of a TRO and preliminary injunction pursuant to Fed. R. Civ. P. 65, prohibiting Fresenius from discontinuing his dialysis transportation. [DE-1-4]. "Injunctive relief is a remedy, not a cause of action." Blankenship v. Consolidation Coal Co., 850 F.3d 630, 640 (4th Cir. 2017). Where it is recommended that McPhail's federal claims be dismissed for failure to state a claim and that the court decline to exercise jurisdiction over the state law claims, there are no claims remaining to provide a basis for injunctive relief. See Allen v. Mitchell, No. 1:18-CV-65-FDW, 2018 WL 4494988, at *3 (W.D.N.C. Sept. 19, 2018) (denying motion for TRO where the plaintiff failed to state a cognizable claim for relief). Accordingly, it is recommended that the motion for TRO and preliminary injunction be denied.
III. CONCLUSION
For the reasons stated herein, Plaintiff's application to proceed in forma pauperis is 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 September 4, 2019, 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).
Submitted, this the 21st day of August 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge