Opinion
7:22-CV-185-D
11-27-2023
SONYA PATRICK, ET AL, Plaintiffs, v. ANDRE BOYD, ET AL, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers, United States Magistrate Judge
This pro se case is before the court for a frivolity review and to determine whether plaintiffs have corrected their service of process deficiencies. [DE-13]. These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1). Id. As set forth below, the undersigned finds that plaintiffs have not corrected their service of process deficiencies and, therefore, RECOMMENDS that the court DISMISS plaintiffs' complaint for lack of jurisdiction. As also discussed below, even if plaintiffs made proper service in this case, the undersigned RECOMMENDS that the court DISMISS plaintiffs' complaint for failure to state a claim on which relief may be granted.
I. PLAINTIFFS' ALLEGATIONS
On October 28, 2022, plaintiffs, Sonya Patrick (“Patrick”) and the Estate of Ricky Patrick (the “Estate,” and together with Patrick, “plaintiffs”) filed a complaint regarding the alleged wrongful death of Ricky Patrick. [DE-1]. Plaintiffs list two defendants in her complaint: (1) Andre Boyd, Chief Operating Officer (“Mr. Boyd”); and New Hanover Regional Hospital, which is now Novant Health New Hanover Regional Medical Center (“Novant Health”). Plaintiffs' complaint in its entirety reads as follows:
COMPLAINT (WRONGFUL DEATH) (to file 10/28/22 for 10/28/20, more to be added
soon) COMES NOW the Plaintiff(s), SONYA PATRICK ET AT, wife of decease [sic] Ricky Patrick Complaint against Defendant(s) Andre Boyd et. al. NOVANT HEALTH New Hanover Medical Center formerly known as New Hanover Regional Hospital alleges and states; violated the standard of care, the civil, the constitutional and human rights of Ricky Patrick.Compl. [DE-1].
II. PROCEDURAL BACKGROUND
On October 28, 2022, the clerk issued the summons for service [DE-4]. On February 2, 2023, the court ordered plaintiffs to show good cause for failure to serve defendants. [DE-5]. On, February 7, 2023, the clerk reissued the summons for service. [DE-6]. On February 16, 2023, the unserved summons for service on Mr. Boyd was filed with this court. [DE-7]. The New Hanover Sheriff's Department [DE-9], who had attempted to serve the summons, noted that Mr. Boyd was “no longer employed with Novant per Maria Stello and Lt. King Hospital Police[, and] DMV has license transferring to Ohio.” [DE-7]. On March 15, 2023, the court ordered plaintiffs to file proof of proper service by April 10, 2023, or the clerk would close the case. [DE-8]. On April 6, 2023, plaintiffs moved for an extension of time to effect service [DE-9], which the court granted, extending the time to effect service of the summonses until May 12, 2023.
III. ANALYSIS
A. Insufficient Service
On May 12, 2023, Patrick filed a return of service with the court where Patrick provides that “[s]ervice of the [s]ummons and complaint was made by me.” [DE-11] at 1. Specifically, plaintiffs' fillings include proof of delivery via United Parcel Service (“UPS”), indicating that Patrick mailed the summons to “Novant Health New Hanover Chief Operating Officer” on May 9, 2023. [DE-11] at 1-3, 7.
Plaintiffs only filed one summons with the court. [DE-4, 6]. It is unclear whether this summons is intended for Mr. Boyd in his official capacity or as a recipient of service of process for Novant Health. See Fed. R. Civ. Proc. 4(h)(1).
According to the Federal Rules of a Civil Procedure, only a “person who is . . . not a party may serve a summons and complaint.” Fed.R.Civ.P. 4(c)(2) (emphasis added). “Even when service is effected by use of the mail[.] [O]nly a nonparty can place the summons and complaint in the mail....[T]he rule contains no mailing exception to the nonparty requirement for service.” Wen Chiann Yeh v. N. Carolina State Univ., No. 5:18-CV-397-D, 2019 WL 2385899, at *2 (E.D. N.C. June 5, 2019) (alterations in original) (quoting Constien v. United States, 628 F.3d 1207, 1213-14 (10th Cir. 2010)).
Accordingly, the undersigned finds that plaintiffs have not properly served the defendants in this case. See id. (“Even pro se plaintiffs must comply with the Federal Rules of Civil Procedure.”) (quoting Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-52 (1984) (per curiam)). As the plaintiffs have failed to properly serve the defendants, this court does not have personal jurisdiction over the defendants. See Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998) (“Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant.”).
B. Frivolity Review
1. Applicable Legal Standards for Frivolity Review
The court also requested that the undersigned conduct a frivolity review. [DE-13]. This case is subject to a frivolity review pursuant to the inherent authority of the court to conduct such reviews. See Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid.”); Mills v. Greenville Cty., 586 F.Supp.2d 480, 487 (D.S.C. 2008) (“Further, even (noting that an officer may receive service on behalf of its corporation, partnership or unincorporated association that is subject to suit under a common name.) In either event, the service of process fails for the reasons discussed herein. 3 though the full filing fee has been paid, the pro se and non-prisoner [plaintiff's] claims are also subject to an initial sua sponte review by the Court pursuant to the Court's inherent authority to ensure that a plaintiff has standing, that subject matter jurisdiction exists, and that a case is not frivolous.”); see also Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 307 (1989) (“Statutory provisions may simply codify existing rights or powers. Section 1915(d), for example, authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.” (dicta)).
While not controlling, Section 1915(e)(2)(B), as well as the case law interpreting it, offers useful guidance on the standards that should govern a frivolity review conducted, as here, pursuant to the court's inherent authority. Section 1915(e)(2)(B) provides that the court must dismiss a case 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 frivolousness).
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. Ct. 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 4 (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 also 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. Jan. 8, 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 the plaintiffs. 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 the court determines 5 that it lacks subject matter jurisdiction, it 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). There are also statutes conferring jurisdiction for particular types of cases.
2. Failure to State a Claim
Even if plaintiffs had properly served the defendants, the claim, as currently drafted, fails due to deficient pleading and a failure to state a claim on which relief may be granted. 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). Plaintiffs' complaint does neither.
Plaintiffs do not invoke diversity jurisdiction in their claim, nor do they plead any facts supporting diversity jurisdiction. See [D.E. 1-1] (indicating that all plaintiffs and defendants are domiciled in North Carolina).
To establish federal question jurisdiction plaintiffs must show that their claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Plaintiffs allege violations of, inter alia, “civil, constitutional, and human rights.” Compl. [DE-1]. The undersigned liberally construes this statement as attempt to bring a general constitutional claim under 42 U.S.C. § 1983, which is the statute that provides a cause of action for alleged constitutional violations. To establish a claim under § 1983, a plaintiff must prove: “(1) the 6 violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under the color of state law.” Hill v. Revells, No. 4:20-CV-233-FL, 2021 WL 312621, at *2 (E.D. N.C. Jan. 6, 2021), report and recommendation adopted, No. 4:20-CV-233-FL, 2021 WL 308592 (E.D. N.C. Jan. 29, 2021), aff'd, No. 21-2110, 2021 WL 5985559 (4th Cir. Dec. 17, 2021) (quoting Williams v. Studivent, No. 1:09CV414, 2012 WL 1230833, at *4 (M.D. N.C. 12 Apr. 2012)) (internal citations omitted) (internal quotation marks omitted). The deficient pleading in plaintiffs' complaint precludes any meaningful analysis on either of these questions.
However, based on the limited information alleged, plaintiffs' complaint would appear to represent a wrongful death claim, possibly in conjunction with a medical malpractice tort claim, which each arise under North Carolina state law, not federal law. See [DE-1-1]; see also Bell v. HCR Manor Care Facility of Winter Park, No. 610CV523ORL22KRS, 2010 WL 11519394, at *3 (M.D. Fla. Aug. 6, 2010) (“[Plaintiff] . . . has not articulated any reason for the Court to consider [plaintiff's wrongful death claim against a nursing home] anything but a medical malpractice tort claim.”); Morris v. UT Sw. Med. Ctr. Hosp. Dallas, No. 3:15-CV-0305-B-BK, 2015 WL 13735860, at *4 (N.D. Tex. Sept. 23, 2015), report and recommendation adopted, No. 3:15-CV-0305-B-BK, 2015 WL 7184878 (N.D. Tex. Nov. 16, 2015) (“[T]he bare allegations of medical mistakes, negligence, and medical malpractice . . . do not rise to the level of a constitutional violation.”); see also Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979) (“Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.”).
Plaintiffs have not alleged any facts explaining how they are entitled to relief under any federal statute or constitutional provision. Furthermore, even assuming that there was an applicable constitutional provision, if plaintiffs' wrongful death fact pattern is based on a theory of mere negligence (see Compl. [DE-1] (alleging violations of the standard of care)), it would thereby fail to state a cognizable claim under 42 U.S.C. § 1983. See Poling v. Cumberland Cnty. Det. Ctr., No. 5:23-CT-3186-BO, 2023 WL 6469474, at *2 (E.D. N.C. Oct. 4, 2023) (“It is well established that allegations of mere negligence are insufficient to state a claim under § 1983.”) (citing Coleman v. Poff, 497 Fed.Appx. 337, 338 (4th Cir. 2012)).
Even if plaintiffs had alleged a cognizable constitutional violation, plaintiffs have not alleged how the defendants were persons acting under the color of state law. First, it is unclear whether defendants were a private hospital or run by a county or municipality at the relevant time. In the case of the former, “private hospitals are generally not state actors.” McCall v. Cape Fear Valley Med. Ctr., No. 5:23-CV-00228-BO-RN, 2023 WL 4062835, at *2 (E.D. N.C. May 23, 2023), report and recommendation adopted, No. 5:23-CV-228-BO-RN, 2023 WL 4492427 (E.D. N.C. July 12, 2023) (citing Modaber v. Culpepper Mem'l Hosp., Inc., 674 F.2d 1023, 1026 (4th Cir. 1982)).
Numerous courts across the country have found that county and municipal hospitals are not persons under 42. U.S.C. § 1983. See Milliken v. Reid, No. 1:07-115-RBH, 2007 WL 601627, at *7 (D.S.C. Feb. 21, 2007) (“Barnwell County Hospital [is not] properly sued under 42 U.S.C. § 1983 because [it is] a group of buildings and/or facilities, not persons.”) (citing Allison v. California Adult Auth., 419 F.2d 822, 823 (9th Cir.1969); DeCuir v. Sacramento Cnty. Jail Hosp., No. CIV S-11-2333 DAD P, 2011 WL 4566071, at *2 (E.D. Cal. Sept. 29, 2011) (“The Sacramento County Jail Hospital is not a ‘person' and is not a proper defendant in this action.”); Wolverton v. Hardin Mem'l Hosp., No. 3:19-CV-320-DJH, 2019 WL 4045653, at *2 (W.D. Ky. Aug. 27, 2019) (“the Hardin Memorial Hospital[, which is owned and operated by Hardin county is not] an entity 8 capable of being sued under § 1983.”). However, it remains an open question whether the county or municipality can be sued for a hospital that it owns and runs. See Arora v. James, No. 5:14-CV-00018-JMC, 2015 WL 5616260, at *22 (D.S.C. Sept. 24, 2015), aff'd in part, vacated in part on other grounds, remanded, 689 Fed.Appx. 190 (4th Cir. 2017); (suggesting that Regional Medical Center of Orangeburg could be properly sued under 42 U.S.C. § 1983 if municipal policies or customs were shown to cause the constitutional violation); Ketron v. Chattanooga-Hamilton Cnty. Hosp. Auth., 919 F.Supp. 280, 284 (E.D. Tenn. 1996) (finding Chattanooga-Hamilton County Hospital Authority to be a political subdivision of the state of Tennessee); see also Phipps v. Grady, No. 7:17-CV-78-H, 2018 WL 1144976, at *2 (E.D. N.C. Mar. 2, 2018) (“By statute, the city or county is the legal entity which can sue and be sued, not the sheriff's department or police department of a county or city.”).
However, even if plaintiff had sued New Hanover county, the Fourth Circuit has held that “the governmental entity must play a role in the specific decision that led to the deprivations complained of by an aggrieved person.” Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 183 (4th Cir. 2009). “[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). In other words, there is no respondeat superior liability under § 1983 claims. Instead, “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. An official policy may arise from written ordinances and regulations, Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (citing Monell, 436 U.S. at 690), affirmative decisions of policymaking individuals, id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)), or omissions of policymakers manifesting “deliberate indifference 9 to the rights of citizens,” id. (citing Canton v. City of Harris, 489 U.S. 378, 388-89 (1989)). An official custom is said to exist where “a practice is ‘so persistent and widespread' and ‘so permanent and well settled as to constitute a custom or usage with the force of law.'” Id. (quoting Monell, 436 U.S. at 691). Failure to train may rise to the level of an unconstitutional custom or policy, but only where there is a history of widespread abuse. Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983). To establish liability under § 1983, plaintiffs would need to show that such “person” or “persons” caused the offenses through an official policy or custom, or in the case of Mr. Boyd, that he inflicted the injury personally.
Accordingly, for the reasons discussed above, the undersigned RECOMMENDS that plaintiffs' complaint be DISMISSED for failure to state a claim on which relief may be granted.
IV. CONCLUSION
For the reasons set forth above, the undersigned finds that plaintiffs have not corrected their service of process deficiencies and, therefore, RECOMMENDS that the court DISMISS plaintiffs' complaint for lack of jurisdiction. As also discussed above, even if plaintiffs made proper service in this case, the undersigned RECOMMENDS that the court DISMISS plaintiffs' complaint for failure to state a claim on which relief may be granted.
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiffs or, if represented, their counsel. Plaintiffs shall have until December 15, 2023, to file written objections to this 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 a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will bar plaintiffs 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).