Opinion
08-25-2013
WALTER COLUMBUS SIMMONS, Plaintiff, v. HUGH CHATHAM HOSPITAL, et al., Defendant(s).
ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Walter Columbus Simmons, submitted a pro se complaint under 42 U.S.C. § 1983 and requested permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Plaintiff names two private hospitals as Defendants. He alleges that Defendants did not properly treat his mother and that she died. He states that he seeks damages for wrongful death and malpractice, as well as the pain and suffering he experienced due to his mother's death. He also asks that the Court investigate any wrongdoing associated with her death.
Because Plaintiff is "a prisoner seek[ing] redress from a governmental entity or officer or employee of a governmental entity," this Court has an obligation to "review" this complaint. 28 U.S.C. § 1915A(a). "On review, the court shall ... dismiss the complaint, or any portion of the complaint, if [it] - (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).
As to the first basis for dismissal, the United States Supreme Court has explained that "a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). "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. Federal Med. Ctr. Burner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted).
The Supreme Court further has identified factually frivolous complaints as ones involving "allegations that are fanciful, fantastic, and delusional. As those words suggest, a finding of factual frivolousness is appropriate 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." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal citations and quotation marks omitted). In making such findings, this Court may "apply common sense." Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 954 (4th Cir. 1995) (en banc).
Alternatively, a plaintiff "fails to state a claim upon which relief may be granted," 28 U.S.C. § 1915A(b)(l), when the complaint does not "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) (emphasis added) (internal citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief.'"" Id. (quoting Twombly, 550 U.S. at 557). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. In other words, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The Court may also anticipate affirmative defenses that clearly appear on the face of the complaint. Nasim, 64 F.3d at 955: Todd v. Baskerville, 712 F.2d 70,74 (4th Cir. 1983).
Although the Supreme Court has reiterated that "[a] document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks omitted), the United States Court of Appeals for the Fourth Circuit has "not read Erickson to undermine Twombly's requirement that a pleading contain more than labels and conclusions," Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (internal quotation marks omitted) (applying Twombly, standard in dismissing pro se complaint); accord Atherton v. District of Columbia Off, of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) ("A pro se complaint... 'must be held to less stringent standards than formal pleadings drafted by lawyers.' But even a pro se complainant must plead 'factual matter' that permits the court to infer 'more than the mere possibility of misconduct.'" (quoting Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 697, respectively)).
Plaintiff attempts to bring an action under § 1983 based on medical malpractice against private parties. However, Section 1983 does not cover such claims. It covers only violations of federal rights by state actors. See, e.g., DeBauche v. Trani, 191 F.3d 499, 506-07 (4th Cir. 1999). Plaintiff makes no allegation that any of his federal rights were violated and names only private parties, not state actors, as Defendants. This does not state a cognizable claim under § 1983. Further, Plaintiff attempted to raise a similar claim in a previous suit and was told by the Court in that suit that he could not sue private parties under § 1983 for his mother's death based on negligence. See Simmons v. Hugh Chatham Hosptal, No. 1:13CV253, Docket Entry 3 (M.D.N.C. April 12, 2013) (unpublished Order and Recommendation). His continued efforts raise these claims despite the past notification by the Court renders his present Complaint frivolous. It should be dismissed.
As a result, Plaintiff's request to proceed in forma pauperis should not be countenanced, with the exception that in forma pauperis status shall be granted for the sole purpose of entering this Order and Recommendation.
Plaintiff has submitted the Complaint for filing, however, and, notwithstanding the preceding determination, § 1915(b)(1) requires that he make an initial payment of $2.00. Failure to comply with this Order will lead to dismissal of the complaint.
IT IS THEREFORE ORDERED that in forma pauperis status be granted for the sole purpose of entering this Order and Recommendation.
IT IS FURTHER ORDERED that within twenty (20) days from the date of this Order Plaintiff make an initial filing fee payment of $2.00.
IT IS FURTHER ORDERED that Plaintiff's trust officer shall be directed to pay to the Clerk of this Court 20% of all deposits to his account starting with the month of September of 2013, and thereafter each time that the amount in the account exceeds $10.00 until the $400.00 filing fee has been paid.
If an inmate has been ordered to make Prison Litigation Reform Act payments in more than one action or appeal in the federal courts, the total amount collected for all cases cannot exceed 20 percent of the inmate's preceding monthly income or trust account balance, as calculated under 28 U.S.C. § 1915(b)(2).
IT IS RECOMMENDED that this action be dismissed pursuantto28 U.S.C. § 1915A for being frivolous or for failing to state a claim upon which relief may be granted.
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Joe L. Webster
United States Magistrate Judge