Bataille v. Gallagher Bassett

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal by Judge Lewis T. Babcock on 4/1/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00371-GPG
PETERSON I. BATAILLE,
Plaintiff,
v.
GALLAGHER BASSETT, and
CONCENTRA MEDICAL CENTERS,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Peterson I. Bataille, resides in Aurora, Colorado. He initiated this action
by filing, pro se, a Complaint (ECF No. 1). Mr. Bataille has been granted leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On February 24, 2015, Magistrate Judge Gordon P. Gallagher reviewed the
Complaint and determined that it was deficient. Magistrate Judge Gallagher informed
Plaintiff that he had not completed several sections of the Complaint form and failed to
allege a jurisdictional basis for his state law medical malpractice claims. (ECF No. 5).
Magistrate Judge Gallagher ordered Plaintiff to file an Amended Complaint within 30
days of the February 24 Order that demonstrated the Court’s subject matter jurisdiction
over his claim(s) and complied with the pleading requirements of Rule 8 of the Federal
Rules of Civil Procedure. (Id.). Mr. Bataille filed an Amended Complaint on March 2,
2015. (ECF No. 6).
In the Amended Complaint, Plaintiff alleged the following:

On January 26, 2014, my worker comp insurance adjustor was conspired
with CONCENTRA to deny my benefits because the claim adjustor, Karen
Claussen, who work for GALLAGHER BASSETT SERVICES was making
judgments on the date of maximum to recovery to sa[v]e her company
money and stop all my worker comp benefit and on 1/27/15 she email that
my claim was initially denied and she date not respected the date the
podiatrist put on my file[] that was 3/13/2015 also the adjustor and
CONCENTRA remove me from care to early because of that I’m paying
out of pocket for my care the adjustor tell me she will not pay additional
treatment for me.
(ECF No. 6, at 3). The Amended Complaint is otherwise blank, except for the Plaintiff’s
signature.
The Court must construe the Amended Complaint liberally because Mr. Bataille
is not represented by counsel. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, a pro se party must follow the same procedural rules that govern other
litigants. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). For the reasons
discussed below, the Amended Complaint will be dismissed for lack of subject matter
jurisdiction.
“Federal courts are courts of limited jurisdiction; they must have a statutory basis
for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994).
There are two statutory bases for federal subject matter jurisdiction: diversity jurisdiction
under 28 U.S.C. § 1332 and federal question jurisdiction under 28 U.S.C. § 1331.
In the Complaint, Mr. Bataille does not allege a statutory basis to invoke the
Court’s federal question jurisdiction, pursuant to 28 U.S.C. § 1331. Moreover, to the
extent he would assert a federal cause of action under 42 U.S.C. § 1983, his allegations
do not support a claim under that federal statute. “[T]o state a § 1983 claim, a plaintiff
must ‘allege the violation of a right secured by the Constitution and laws of the United
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States, and must show that the alleged deprivation was committed by a person acting
under color of state law.’” Bruner v. Baker, 506 F.3d 1021, 1025-26 (10th Cir. 2007)
(quoting West v. Atkins, 487 U.S. 42, 48 (1988)). However, Mr. Bataille complains of
alleged misconduct by private entities that appears to implicate state medical
malpractice law.
“Like the state-action requirement of the Fourteenth Amendment, the
under-color-of-state-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co., 526 U.S. at
50 (internal quotation marks omitted). A private actor may be subject to liability under
§ 1983 if “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.” Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass'n., 531 U.S. 288, 295 (2001) (quotation
marks and citations omitted). However, if a plaintiff “attempts to assert the state action
required for a § 1983 claim against private actors based on a conspiracy with
government actors, mere conclusory allegations with no supporting factual averments
are insufficient. Rather, the plaintiff must specifically plead facts tending to show
agreement and concerted action.” See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir.
2005) (internal quotation marks omitted). Plaintiff does not allege any facts to suggest
that the private defendants acted in concert with government officials to violate his
constitutional rights.
The Court finds that Plaintiff has failed to allege facts in the Amended Complaint
to establish federal question jurisdiction under 28 U.S.C. § 1331. Mr. Bataille must

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therefore demonstrate that this Court has jurisdiction over his allegations under the
diversity jurisdiction statute.
A plaintiff properly invokes § 1332 jurisdiction when he or she presents a claim
between parties of diverse citizenship that exceeds the required jurisdictional amount,
currently $75,000. See 28 U.S.C. § 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S.
500, 513 (2006). To demonstrate federal jurisdiction pursuant to § 1332, allegations of
diversity must be pleaded affirmatively. See Penteco Corp. Ltd. Partnership-1985A v.
Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991) (citations omitted); see also
Fed. R. Civ. P. 8(a)(1) (pleading must contain "a short and plain statement of the
grounds for the court’s jurisdiction"). Plaintiff’s allegations in the Amended Complaint
that both he and the Defendant are residents of Colorado are insufficient to invoke this
Court’s diversity jurisdiction. Accordingly, it is
ORDERED that the Amended Complaint (ECF No. 6) and this action are
DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Plaintiff may
seek relief in the state courts. It is
FURTHER ORDERED leave to proceed in forma pauperis is denied for the
purpose of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Bataille files a notice of appeal he must also pay the
full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United

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States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed.
R. App. P. 24.
DATED April 1, 2015, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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