Opinion
1:21-cv-00022
07-01-2021
JOHN WINTERS, JR., Plaintiff v. ORTHOPEDIC SPORT MEDICINE; MRS. CHAILENE and PHYSCIAL THERAPIST ANDREW HAY, Defendants
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS-ECF NO. 14
HON. RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 14) be GRANTED.
II. Report
A. Background
Plaintiff John Winters Jr. (Winters) representing himself, has filed a Complaint against Defendants Orthopedic Sports Medicine, Mrs. Chailene and Physical Therapist Andrew Hay (collectively, Defendants) alleging medical negligence in connection with an injury he received during physical therapy treatment. ECF No. 5, p. 5. Winters' Complaint identifies a federal question as the basis for this Court's jurisdiction. Id., p. 4.
Defendants identify this Defendant as Mrs. Charlene Kellerman. See ECF No. 14, p. 1. In the section of the form Complaint asking Winters to identify the defendants, he additionally lists Dr. Patrick Williams, an orthopedic surgeon, as a defendant. See ECF No. 5, p. 5.
Defendants have filed a Motion to Dismiss and a Brief in Support. See ECF Nos. 14, 15. Winters was ordered to Respond to Defendants' motion, but he failed to do so. See ECF No. 16. Defendants then supplemented their motion to dismiss, arguing an additional basis for dismissal now exists based on Winter's failure to prosecute. See ECF No. 17.
B. Standard of Decision for Motions to Dismiss
Defendants move for dismissal based on Federal Rule of Civil Procedure 12(b)(1) and Fed.R.Civ.P. 12(b)(6).
In reviewing a Rule 12(b)(1) motion, the Court must determine whether the attack on its jurisdiction is facial or factual. Kajmowicz v. Whitaker, 2021 WL 2200795, at *2 (W.D. Pa. June 1, 2021) (citing Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)). See also Rauterkus v. United States by & through Vilsack, 2021 WL 795998, at *2 (W.D. Pa. Mar. 2, 2021). A facial attack challenges the Court's jurisdiction without disputing the facts alleged in the complaint and requires the Court to treat those averments as true. Id. Here, Defendants make a facial challenge because they have not disputed the validity of Winter's factual claims, vague as they are. Instead, Defendants contend that these allegations, even accepted as true, are insufficient to establish federal question jurisdiction. ECF No. 14, ¶5-6. In considering a facial challenge, courts are to apply the same standard that they use when reviewing a Rule 12(b)(6) motion for failure to state a claim. See Petruska, 462 F.3d at 299 n.l (explaining "that the standard is the same when considering a facial attack under Rule 12(b)(1) or a motion to dismiss for failure to state a claim under Rule 12(b)(6)" (citation omitted)).
A Rule 12(b)(6) motion tests the legal sufficiency of a plaintiffs claim. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A complaint must allege facts "sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). When determining whether dismissal is appropriate, the Court must: (1) identify the elements of the claim; (2) review the complaint to strike conclusory allegations; and (3) look at the well-pleaded components of the complaint and evaluate whether all the elements identified in part one of the inquiry are sufficiently alleged. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). The Court "accept[s] all factual allegations as true, construe[s] the complaint in the light most favorable to the plaintiff, and determinefs] whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Blanyar v. Genova Prods. Inc., 861 F.3d 426, 431 (3d Cir. 2017) (citation omitted).
C. Discussion
1. Winters has failed to allege state action on the part of the Defendants or any other basis to support federal question jurisdiction.
Winter's Complaint is a form complaint and, as noted above, he checked the "federal question" box as the basis for this Court's jurisdiction over his claim. ECF No. 5, p. 4. The only claim he asserts against the Defendants, however, is one of "malpractice/negligence." Id. This claim appears to arise exclusively under state law. Winters has not identified any federal law upon which his claim is based or arises, and the Court likewise finds none potentially implicated by his allegations. Nevertheless, given Winters' pro se status, the Court will construe his Complaint generously as asserting a federal constitutional claim. See Can v. "Philadelphia Police Department, 2021 WL 22351687, *1 (E.D. Pa. June 9, 2021). So construed, Winters' Complaint still fails to state a claim upon relief can be granted, The vehicle by which federal constitutional claims may be brought in federal court is Section 1983 of Tide 42 of the United States Code, which provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. Thus, "to state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); see also Can, 2021 WL 2351687, at *2.
Here, Winters has failed to plead facts suggesting that the Defendants are state actors. See, e.g., Sauers v. Oak Property Management LP, 2021 WL 1017109, *1 (3d Cir. Mar. 17, 2021). In determining whether there is state action, the primary question is "whether there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Id. (internal quotation marks and citation omitted). "In other words, the government must be 'responsible for the specific conduct of which the plaintiff complains."' Sauers, 2021 WL 1017109, at *2 (citing Borrell v. Bloomsburg Univ., 870 F.3d 154, 160 (3d Cir. 2017) (other citation omitted)). The challenged action in this case is the Defendants' alleged failure to use reasonable care during physical therapy after his surgery and the Defendants' alleged refusal to treat Winters' injury. ECF No. 5, p. 5.
In the "Statement of Claim" section of Winters' form Complaint, he alleges "negligence - injured after surgery during physical therapy treatment, and refused treatment to the injury." ECF No. 5, p. 5.
The Court applies three tests to determine whether state action exists: "(1) whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the [s]tate has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity." Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotation marks and citation omitted).
None of those tests are met here. As to the first test, the Complaint does not allege that the Defendants were performing an exclusive government function in treating Winters. See id., at 648. Nor has Winters pleaded any facts to show that the Defendants acted "with the help of in concert" with government officials or that the government insinuated itself into int a position of interdependence with the Defendants' medical practice that the government must be recognized as a "joint participant" in the Defendants' challenged actions or inactions. Kach, 589 F.3d at 646. Absent such factual averments, no basis exists to infer that Defendants acted under color of state law. Because Winters' allegations support no other plausible basis for federal question jurisdiction, Defendants' Motion to Dismiss should be granted.
2. Negligence Claims Not Recognized Under Section 1983
Further, even were the Court to find that Defendants acted under color of state law, Winter's claim would still fail as a matter of law because § 1983 claims may not be predicated on mere negligence. See Canton v. Harris, 489 U.S. 378, 387 (1989) (holding that mere negligence in training cannot form the basis for § 1983 liability). See also Ruben Velez-Maldonado v. Cemor, et al, 2021 WL 2473944, at *2 (E.D. Pa. June 17, 2021) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding that official's mere negligence is not actionable under § 1983). While vaguely stated, Winters' claim alleges no more than simple negligence on the part of the Defendants. Such allegations do not support a constitutional violation. Accordingly, Winter's Complaint is subject to dismissal on this alternative ground. See Velez-Maldonado, 2021 WL 2473944, *2.
3. Supplemental Jurisdiction and Amendment
Because the Complaint alleges no plausible basis for federal court jurisdiction, the Court has no authority to exercise supplemental jurisdiction over his state law claim under 28 U.S.C. § 1367(c). Winters may refile his claim in an appropriate state court.
Dismissal of Winter's action should be without prejudice so that he may pursue his claim in state court, but also without leave to amend in this action. Although the Court will typically grant a pro se plaintiff leave to amend before dismissing his or her action, the Court may decline to do so where amendment would be futile. Dickson v. Ennis, et al, 2021 WL 2322403, at *6 (W.D. Pa. June 7, 2021) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, Winter's claim sounds solely in state law, and no plausible basis exists for his invocation of this Court's subject matter jurisdiction. Thus, any attempt by Winters to amend his Complaint would be futile.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the Court grant Defendants' Motion to Dismiss (ECF No. 14) pursuant to Rule 12(b)(1) and, alternatively, Rule 12(b)(6). It is further recommended that the Court dismiss Winter's Complaint, without prejudice, but without leave to amend as amendment to support subject matter jurisdiction would be futile in this case.
IV. Notice to the Parties
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, the Plaintiff shall have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. Plaintiffs failure to file timely objections will constitute a waiver of his appellate rights.