Blasingim v. Interventional Pain Specialist

Filing 5

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 11/12/13. The Court will dismiss the action by separate Order. cc: Plaintiff (pro se); Defendant (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
TONY LEE BLASINGIM

PLAINTIFF

v.

CIVIL ACTION NO. 5:13CV-123-R

INTERVENTIONAL PAIN SPECIALIST

DEFENDANT

MEMORANDUM OPINION
Plaintiff Tony Lee Blasingim, from Paducah, Kentucky, filed a pro se complaint on a
general-complaint form against Interventional Pain Specialist (DN 1). Because Plaintiff is
proceeding in forma pauperis, this Court must review the complaint pursuant to 28 U.S.C.
§ 1915(e)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons that follow, the complaint will
be dismissed.
I.
As grounds for filing this action in federal court, Plaintiff states that he “was given an
appointment in Bowling green Ky. on July 3rd, 2013 After driving all the way there I was told
that because of my class D felony drug charge I couldn’t be a patient.”
As his statement of claim, Plaintiff advises as follows:
I drove all the way to Bowling Green Ky. for a dr’s Appointment and after having
to use my bill money for gas was told that because of my class D felony drug charge
I couldn’t be a Patient there but on June 25th they saw my Girlfriend [] who has the
same charge. I was discriminated against and I want something done about it.
As relief, Plaintiff seeks $15,000 “for being discriminated against but will settle for a
little less” and also wants an injunction ordering that Defendant be “shut down.”

II.
Upon review under 28 U.S.C. § 1915(e), a district court must dismiss a case at any time if
it determines that the action is frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B). A claim is legally frivolous when it lacks an arguable basis either in law
or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss
a claim as frivolous where it is based on an indisputably meritless legal theory or where the
factual contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to
state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2)
take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561
F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d
1101, 1109 (6th Cir. 1995)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555, 557).

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III.
It is axiomatic that federal district courts are courts of limited jurisdiction, and their
powers are enumerated in Article III of the Constitution and in statutes enacted by Congress.
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); see generally, 28 U.S.C.
§§ 1330-1364. Therefore, “[t]he first and fundamental question presented by every case brought
to the federal courts is whether it has jurisdiction to hear a case, even where the parties concede
or do not raise or address the issue.” Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604,
606-07 (6th Cir. 1998). Without jurisdiction, courts have no power to act. Id. at 606. The
burden of establishing jurisdiction rests with the plaintiff. Hedgepeth v. Tennessee, 215 F.3d
608, 611 (6th Cir. 2000); Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d at 606. “If 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).
Under the federal-question statute, codified at 28 U.S.C. § 1331, “[t]he district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.” Plaintiff does not specify any cause of action arising under the
Constitution, laws, or treaties of the United States. In liberally construing the complaint in a
light most favorable to Plaintiff, the Court finds that Plaintiff alleges that Defendant, a private
medical facility/physician, discriminated against him on the basis of gender by denying him
treatment.
By alleging discrimination by a private entity/actor, Plaintiff may be seeking to bring an
action under 42 U.S.C. § 1981. Section 1981, however, “prohibits racial discrimination in the
making and enforcement of contracts.” McCormick v. Miami Univ., 693 F.3d 654, 659 (6th Cir.

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2012) (citing Runyon v. McCrary, 427 U.S. 160, 168, (1976)) (emphasis added). As “[i]t is
well-settled that § 1981 redresses only racial discrimination,” Ana Leon T. v. Fed. Reserve Bank
of Chicago, 823 F.2d 928, 931 (6th Cir. 1987), and Plaintiff’s complaint contains no allegations
of discrimination on the basis of race, the Court cannot construe Plaintiff’s complaint as
asserting a § 1981 claim.
“To proceed on a claim under 42 U.S.C. § 1983, a plaintiff must show that a person
acting under color of state law deprived the plaintiff of a right secured by the Constitution or
laws of the United States.” Vistein v. Am. Registry of Radiologic Technologists, 342 F. App’x
113, 127 (6th Cir. 2009) (emphasis added). Further, while the Equal Protection Clause of the
Fourteenth Amendment prohibits discrimination, it prohibits discrimination by the state. See
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972) (noting that the Equal Protection Clause
prohibits discriminatory action by the state but “erects no shield” against private conduct,
“however discriminatory or wrongful”). Plaintiff, however, alleges no facts, even liberally
construed, suggesting any state action on the part of Defendant. Because Defendant is a private
entity/actor, § 1983 and the Equal Protection Clause provide no relief.
The Court, therefore, concludes that Plaintiff fails to allege facts establishing this Court’s
federal-question jurisdiction. See Bell v. Hood, 327 U.S. 678, 682-83 (1946) (explaining that a
jurisdictional dismissal may be appropriate where the federal claim “clearly appears to be
immaterial and made solely for the purpose of obtaining jurisdiction or where such claim is
wholly insubstantial and frivolous”).
Additionally, to the extent Plaintiff may be attempting to assert a state-law claim,
diversity jurisdiction under 28 U.S.C. § 1332 does not exist because Plaintiff alleges neither the

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requisite amount in controversy, see § 1332(a) (providing that “the matter in controversy exceeds
the sum or value of $75,000, exclusive of interest and costs”), nor that he and Defendant are
diverse in citizenship. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)
(“[D]iversity jurisdiction does not exist unless each defendant is a citizen of a different State
from each plaintiff.”).
For the foregoing reasons, the Court will enter a separate Order of dismissal.
Date:

November 12, 2013

cc:

Plaintiff, pro se
Defendant
4413.005

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