Opinion
5:18-CV-276-D
02-13-2019
FAHAD KHAN, Plaintiff, v. WAKEMED, Defendant.
ORDER and MEMORANDUM AND RECOMMENDATION
This pro se case is before the court on the motion to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) (D.E. 1) by plaintiff Fahad Kahn ("plaintiff") and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). The motion to proceed in forma pauperis was referred to the undersigned magistrate judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A) and the frivolity review for issuance of a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See D.E. 4. As set out below, the motion to proceed in forma pauperis will be allowed; and it will be recommended that plaintiff's claims be dismissed for lack of subject matter jurisdiction.
ORDER ON IN FORMA PA UPERIS MOTION
The court finds that plaintiff has adequately demonstrated his inability to prepay the required court costs. His motion to proceed in forma pauperis is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. BACKGROUND
In this action, commenced on 13 June 2018, plaintiff alleges in a preprinted complaint form medical malpractice arising from his visit to the emergency room at the Raleigh campus of WakeMed ("defendant") on an unspecified date after his water bottle was tampered with at a grocery store. Compl. (D.E. 1-1) 2. He alleges that the doctor and nurse he saw in the emergency room lied about his drug screen. Id. Specifically, he contends that the nurse initially informed him that his drug screen was clear, but when plaintiff advised that he had used marijuana recreationally several days earlier, the nurse came back a few minutes later and said that the drug screen was positive for marijuana. Id. Plaintiff alleges that he possesses video evidence of the nurse admitting to lying about his drug screen and refusing to administer a blood test. Id.
Plaintiff's entire description of the "acts complained of in this suit" reads:
The Doctor and nurse lied about my drug screen, i was rushed to the emergency room because someone at Food Lion tampered with my Water bottle. The nurse informed me that there was nothing in my drug screen but when i informed him that i used marijuana recreationally the night before he came back a few minuets later and said there was marijuana in my system. I have a video of the nurse admitting to lying about my drug screen and refusing to give me a blood test.Compl. 2 (spelling and grammar original). The address plaintiff provides for defendant, 3000 New Bern Ave., Raleigh, North Carolina, is the address of the Raleigh campus of WakeMed. See WakeMed, Raleigh Campus, https://www.wakemed.org/raleigh-campus (last visited 13 Feb. 2019); see Fed. R. Ev. 201 (providing for judicial notice of adjudicative facts).
In his complaint, plaintiff alleges that jurisdiction is based on "Medical Malpractice" (id.), although in the civil cover sheet he indicates the jurisdictional basis is federal question jurisdiction (D.E. 1-2 § II.3). He seeks $300,000.00 in compensatory damages for "loss of enjoyment of life, emotional distress, [and] humiliation," and $1.35 billion in punitive damages. Id. at 2.
The civil cover sheet identifies "§ 90-21.1" as the federal civil statute under which plaintiff was filing. Civ. Cover Sheet § VI. Plaintiff appears to be referring to N.C. Gen. Stat. § 90-21.1. It concerns when physicians may treat minors without the consent of a parent, guardian, or person in loco parentis, a matter which appears inapposite to plaintiff's allegations.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must dismiss the complaint if it determines that the action is frivolous or malicious, 28 U.S.C. § 1915(e)(2)(B)(i); fails to state a claim upon which relief can be granted, id. § 1915(e)(2)(B)(ii); or seeks monetary relief from an immune defendant, id. § 1915(e)(2)(B)(ii). See Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolity).
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the complaint must "'state[ ] a plausible claim for relief that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to "less stringent standards" than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that "[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). "Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress." Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) ("The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction."). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If in a frivolity review the court determines that it lacks subject matter jurisdiction, it must dismiss the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). More generally, "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Another basis is diversity of citizenship or so-called diversity jurisdiction, which requires that the citizenship of each plaintiff be different from that of each defendant. Id. § 1332; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978); Turner v. Cooper, No. 2:13-CV-02017-JMC, 2013 WL 5587856, at *3 (D.S.C. 16 Aug. 2013) ("Complete diversity of parties in a case means that no party on one side may be a citizen of the same State as any party on the other side."), rep. & recomm. adopted, 2013 WL 5587856, at *1 (10 Oct. 2013). For purposes of diversity jurisdiction, an individual is deemed to be a citizen of the state in which he is domiciled. Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998) ("As the Supreme Court has consistently held, however, state citizenship for purposes of diversity jurisdiction depends not on residence, but on national citizenship and domicile, . . . and the existence of such citizenship cannot be inferred from allegations of mere residence, standing alone."); Comm'r v. Nubar, 185 F.2d 584, 587 (4th Cir. 1950) ("'Residence' means living in a particular locality, but 'domicile' means living in that locality with intent to make it a fixed and permanent home." (internal quotation marks omitted)). A corporation is deemed a citizen of the state in which it is incorporated and the state in which it has its principal place of business. 28 U.S.C. § 1332(c)(1). There are also statutes conferring jurisdiction for particular types of cases.
III. DISCUSSION
The court finds that there is no federal jurisdictional basis for plaintiff's action against defendant. It should accordingly be dismissed.
Plaintiff has not demonstrated the existence of diversity jurisdiction. He does not allege the citizenship of either himself or defendant. The address he lists for himself is in this district, which is consistent with his being a citizen of North Carolina. See Compl. 1. Defendant's Raleigh campus is, of course, in North Carolina, and plaintiff does not assert allegations showing that defendant's principal place of business is outside of North Carolina. Defendant is a nonprofit corporation incorporated in North Carolina. See N.C. Secretary of State, Business Entity Search, entry for WakeMed, https://www.sosnc.gov/?id= (last visited 13 Feb. 2019); Fed. R. Ev. 201. Plaintiff has therefore not shown in his complaint that the parties are citizens of different states. See Juste v. McDonald Rest. Corp., No. 3:15-CV-54, 2015 WL 3939669, at *6 (N.D.W. Va. 25 June 2015) (dismissing claim on frivolity review, noting "[t]he burden is on Plaintiff, as the party seeking to invoke the jurisdiction of the federal court, to establish domicile for the purposes of diversity jurisdiction"), rep. & recomm. adopted, 2015 WL 3939669, at *1 (25 June 2015).
Plaintiff's complaint also fails to demonstrate federal question jurisdiction. As discussed, the complaint alleges medical malpractice. It is a claim based on state law. Blackstock v. Magnolia Health Care, No. 4:17-CV-03068-RBH-KDW, 2018 WL 541759, at *3 (D.S.C. 2 Jan. 2018) ("That is, the Complaint does not state a claim cognizable under this court's 'federal question' jurisdiction. Plaintiff's Complaint involves a routine medical malpractice dispute. Generally, such disputes are a matter of state law to be heard in the state courts, unless diversity of citizenship is present."), rep. & recomm. adopted, 2018 WL 515763 (22 Jan. 2018); Turner, 2013 WL 5587856, at *4 (recommending dismissal of plaintiff's medical malpractice case for failure to establish the existence of a federal question to support jurisdiction); Harrison v. Rogers, No. C.A. 3:08-1000-PMD, 2008 WL 1816464, at *3 (D.S.C. 22 Apr. 2008) ("The undersigned gleans from the complaint that the plaintiff is asserting claims of medical malpractice and/or outrage, both of which are based in state law. A civil action for plaintiff's state law claims would be cognizable in this Court under the diversity statute if that statute's requirements are satisfied."). Plaintiff's naked assertion in the civil cover sheet that jurisdiction is based on the presence of a federal question is insufficient to establish such jurisdiction.
Given the lack of federal jurisdiction, the court expresses no opinion on whether, if jurisdiction existed, plaintiff's claim would survive further evaluation for frivolity.
IV. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the complaint be dismissed for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until 27 February 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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 plaintiff does not file written objections to the Memorandum and Recommendation by the foregoing deadline, 27 February 2019, plaintiff 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, plaintiff's failure to file written objections by the foregoing deadline will bar him 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).
SO ORDERED, this 13th day of February 2019.
/s/_________
James E. Gates
United States Magistrate Judge