Mitchell v. Nortons Neuroscience Inst.

Filing 5

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 08/5/2014; The Court will dismiss this action by separate Order. cc:Plaintiff, pro se; Defendants(EM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CINDY MITCHELL

PLAINTIFF

v.

CIVIL ACTION NO. 5:14CV-44-R

NORTONS NEUROSCIENCE INST. et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff, Cindy Mitchell, proceeding in forma pauperis, filed a pro se complaint alleging
medical negligence on the part of Defendants (DN 1). Rule 12(h)(3) of the Federal Rules of
Civil Procedure provides, “Whenever it appears by suggestion of the parties or otherwise that the
court lacks jurisdiction of the subject matter, the court shall dismiss the action.” As a review of
the complaint reveals that this Court lacks jurisdiction over the subject matter contained therein,
the Court will dismiss the action.
I.
Plaintiff brings this action against two Defendants: Dr. Alan Gocio and Nortons
Neuroscience Institute [NNI]. Plaintiff represents that Defendant Gocio worked for NNI when
he negligently performed surgery on her neck. Plaintiff is seeking monetary damages.
According to the complaint, on November 30, 2011, Defendant Gocio performed surgery
on Plaintiff’s neck to repair a “severe ruptured disc.” Plaintiff states that the surgery was
performed at Lourdes Hospital in Paducah, Kentucky. According to the complaint, after the
surgery, Defendant Gocio “lied” to Plaintiff’s mother and friend by telling them that he had
performed “a cervical fusion and remov[ed] ostheo arthritic bone spurrs” thereby fixing
Plaintiff’s neck. Plaintiff states that after seeing a new doctor because of continued pain and
suffering, “he did not remove the bone spurrs.” According to Plaintiff, she “must have 2 more

neck surgeries to correct his surgery.” Plaintiff states that her spine is growing crooked because
of Defendant Gocio’s surgery.
II.
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.
Plaintiff has failed to meet her burden. For instance, under 28 U.S.C. § 1332, the
diversity-of-citizenship statute, “The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between . . . citizens of different States; . . . .” There must be “complete
diversity between the plaintiffs and defendants, i.e., ‘diversity jurisdiction does not exist unless
each defendant is a citizen of a different State from each plaintiff.’” Medlen v. Estate of Meyers,
273 F. App’x 464, 469 (6th Cir. 2008) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 373 (1978)) (emphasis in Owen). Plaintiff alleges an amount in controversy of $65,000.
This amount does not meet the statutory requirement of $75,000. Further, according to the
complaint, both Plaintiff and Defendants are citizens of Kentucky. Thus, the complaint fails to

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satisfy the complete diversity-of-citizenship requirement. For these reasons, Plaintiff cannot
bring any state-law claims by way of the federal diversity statute.
Additionally, under the federal-question statute, 28 U.S.C. § 1331, “district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.” Plaintiff is alleging medical negligence on the part of Defendants. She does not
allege any violation of the Constitution, laws or treaties of the United States. Thus, this Court
does not have federal-question jurisdiction over this complaint.
Although this Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519 (1972), the
duty “does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979). Additionally, this Court is not required to create a claim for Plaintiff. Clark v.
Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). In fact, to do so would require
the “courts to explore exhaustively all potential claims of a pro se plaintiff, [and] would also
transform the district court from its legitimate advisory role to the improper role of an advocate
seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Plaintiff having failed to establish this Court’s jurisdiction, the instant action must be
dismissed. The Court will enter an Order consistent with this Memorandum Opinion.
Date:

August 5, 2014

cc:

Plaintiff, pro se
Defendants
4413.003

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