Powers v. Depuy Orthopaedics Inc
Filing
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MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 03/25/2014. SEE WRITTEN OPINION. This case is, therefore, closed, and the clerk isdirected to enter a judgment pursuant to Federal Rule of CivilProcedure 58. All pending motions are DENIED as moot. (DM, ilcd)
E-FILED
Tuesday, 25 March, 2014 03:20:42 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
THOMAS POWERS,
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) No.: 14-3061-SEM
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Plaintiff,
v.
DEPUY ORTHOPAEDICS, INC.,
Defendants.
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff Thomas Powers, proceeding pro se from his detention
in the Rushville Treatment and Detention Center, pursues a claim
under 42 U.S.C. § 1983 against Depuy Orthopaedics, Inc., for
allegedly providing him with a defective hip replacement.
The “privilege to proceed without posting security for costs and
fees is reserved to the many truly impoverished litigants who,
within the District Court’s sound discretion, would remain without
legal remedy if such privilege were not afforded to them.” Brewster
v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
Additionally, a court must dismiss cases proceeding in forma
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pauperis “at any time” if the action is frivolous, malicious, or fails to
state a claim, even if part of the filing fee has been paid. 28 U.S.C. §
1915(d)(2). Accordingly, this Court grants leave to proceed in forma
pauperis only if the complaint states a federal claim.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff’s favor.
Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
must be provided to “state a claim for relief that is plausible on its
face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)
(internal quotation omitted).
As noted supra, Powers has filed this suit under 42 U.S.C. §
1983. Title 42 U.S.C. § 1983 provides a cause of action to redress
the violation of federally secured rights by a person acting under
color of state law. Burrell v. City of Mattoon, 378 F.3d 642, 647 (7th
Cir. 2004). To state a claim under § 1983, a plaintiff must allege a
violation of rights secured by the Constitution and laws of the
United States and must show that a person acting under color of
state law committed the alleged deprivation. West v. Atkins, 487
U.S. 42, 49-50 (1988). The first inquiry in every § 1983 case is
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whether a state actor has deprived the plaintiff of a right secured by
the Constitution or laws of the United States. Pramuk v.
Northwestern Med. Imaging, 2013 WL 6827816, * 2 (N.D. Ind. Dec.
23, 2013).
To state a claim under § 1983, it is essential that the person
who committed the alleged wrongful conduct was “acting under
color of state law.” Yang v. Hardin, 37 F.3d 282, 284 (7th Cir. 1994).
If the person did not act “under color of state law,” the action
against him must be dismissed. Rendell–Baker v. Kohn, 457 U.S.
830, 838 (1982).
The United States Supreme Court defined the phrase “acting
under color of state law” as “misuse of power, possessed by virtue of
state law and made possible only because the wrongdoer is clothed
with the authority of state law.” Monroe v. Pape, 365 U.S. 167, 184
(1961)(citations omitted). The purpose of § 1983 is to deter state
actors, and private individuals in collaboration with state officials,
from using a “badge of authority” to deprive individuals of rights
guaranteed by the Constitution. Wyatt v. Cole, 504 U.S. 158, 161
(1992).
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In other words, Powers’ Complaint must plausibly allege that
Depuy Orthopaedics is a state actor. Hu v. American Bar Ass’n.,
2009 WL 1796441, * 1 (7th Cir. June 22, 2009). Powers’ Complaint
does not make this allegation. Without a state actor, there is no
subject matter jurisdiction to maintain a § 1983 claim.
Even giving the Complaint the liberal interpretation to which it
is entitled, Powers’ Complaint does not allege enough facts to state
a claim to relief that is plausible on its face. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). Depuy Orthopaedics is a private corporation, and
Powers has not alleged that Depuy Orthopaedics maintains any
relationship—contractual or otherwise—that would subject them to
a determination that it was acting under the color of law in
supplying a hip replacement device to Powers.
Powers simply alleges that Depuy Orthopaedics manufactured
a defective hip replacement that he received in July 2013. Powers’
claim, to the extent that he possesses one, is based in state tort
law, not federal constitutional law. Title 42 U.S.C. § 1983 does not
impose liability for violations of duties of care arising under state
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law. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S.
189 (1989).
Accordingly, the Court must dismiss Powers’ Complaint
because it fails to state a cause of action upon which relief can be
granted and for lack of jurisdiction. The Court cannot even ask the
multidistrict litigation panel in the Northern District of Texas to
accept jurisdiction over this case because this Court lacks the
subject matter jurisdiction to do so.
IT IS, THEREFORE, ORDERED:
1.
This case is dismissed, without prejudice, for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)
and for lack of subject matter jurisdiction. Any further amendment
to the Complaint would be futile because Plaintiff’s claim is not
cognizable.
2.
If Plaintiff wishes to appeal this dismissal, he must file a
notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a).
A motion for leave to appeal in
forma pauperis should set forth the issues he plans to present on
appeal. Fed. R. App. P. 24(a)(1)(C).
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If Plaintiff does choose to
appeal, he will be liable for the $505 appellate filing fee irrespective
of the outcome of the appeal.
3.
This case is, therefore, closed, and the clerk is
directed to enter a judgment pursuant to Federal Rule of Civil
Procedure 58. All pending motions are DENIED as moot.
ENTER: 03/25/2014
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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