Craven v. Boston Health Net Insurance Co.
Filing
4
Magistrate Judge Jennifer C. Boal: MEMORANDUM AND ORDER entered: Within 21 days of the date of this Memorandum and Order, Plaintiff Alfred Craven shall pay his proportionate share of the civil action filing fee or he shall file a Motion for Leave to Proceed in forma pauperis accompanied by his certified prison account statement for the six-month period preceding the filing of the Complaint;Within 21 days of the date of this Memorandum and Order, Plaintiff James Craven shall pay his proportionate share of the civil action filing fee or he shall file a Motion for Leave to Proceed in forma pauperis; Within 42 days of the date of this Memorandum and Order, Plaintiffs shall demonstrate good cause in writing why this action should not be dismisse d for the reasons stated herein; Within 42 days of the date of this Memorandum and Order, Plaintiffs shall file an Amended Complaint, signed by both parties or their duly-licensed representative(s), that comports with Rule 8, setting forth plausible claims upon which relief may be granted, and setting forth the basis for this Courts subject matter jurisdiction; Plaintiffs' Motion for Appointment of Pro Bono Counsel (Docket No. 2) is DENIED; Plaintiffs may not represent the interests of others pro se; and Within 35 days of the date of this Memorandum and Order, Plaintiffs shall notify the Court in writing advising whether they consent or refuse to consent to proceed before a Magistrate Judge for all purposes. (PSSA, 1)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALFRED CRAVEN, ET AL., on behalf of
mother Joan Henry,
Plaintiff,
CIVIL ACTION NO.
12-12064-JCB
v.
BOSTON HEALTH NET INSURANCE CO.,
ET AL.,
Defendants.
MEMORANDUM AND ORDER
BOAL, M.J.
BACKGROUND
On November 2, 2012, Plaintiffs Alfred Craven, a prisoner at FMC Devens, and his
brother, James Craven, of Wilmington, Vermont,1 filed a civil action on behalf of their mother,
Joan Henry (“Joan”). Plaintiffs identify the Defendants as Boston Health Net Insurance Co.
(“BHN”) and other unknown and unnamed defendants (staff of BHN), located in Boston,
Massachusetts. In the body of the Complaint, however, Plaintiffs name Dr. McNamee as a
Defendant as well. Plaintiffs purport to bring this action for civil rights violations pursuant to 42
U.S.C. § 1983, for the alleged deliberate indifference to their mother’s urgent medical needs,
resulting in Joan’s death from liver cancer.
Specifically, Plaintiffs claim that on or about June 6, 2012, Dr. McNamee made a request
to BHN for a PET Scan for Joan, following surgery on February 21, 2012 for lung cancer. BHN
denied two earlier requests for PET Scans, but on August 10, 2012, after three appeals to the
Contract Administrator, BNH granted the request. With respect to Dr. McNamee, Plaintiffs
contend that he waited too long to detect Joan’s cancer, and was negligent in failing to order a
1
James Craven has not stated his current mailing address. Based on attachments to the
Complaint, it appears he resides in Wilmington, VT.
blood test or other test that would have detected cancer sooner. Further, they contend that Dr.
McNamee told Joan that her cancer was not life threatening and that she could wait a week to
discuss her options; however, Dr. Kalva, a liver specialist, advised Joan that her cancer was
discovered too late to save her life.
With respect to BHN, Plaintiffs claim that it was grossly negligent because it waited too
long to approve insurance coverage for a PET Scan, and there were no reasonable grounds to
deny coverage. Plaintiffs also claim that it (and Dr. McNamee) should have known Joan’s
medical history of cancer treatment and surgery, and should have known that urgent medical
follow-up was necessary to determine if the cancer had reappeared. They also claim that the
supervisor at BHN, and other unnamed staff, caused Joan to suffer pain. They allege the
Defendants’ inactions constituted cruel and unusual punishment under the Eighth Amendment.
They also allege the conduct of the Defendants involved gross negligence, discrimination,
deliberate indifference, and malpractice. Plaintiffs seek monetary damages.
Plaintiffs attached to the Complaint an Affidavit of Joan detailing her battle with cancer,
dated October 12, 2012. They also attached various medical reports and test results, and a
document titled as a motion, but actually presenting further arguments in support of Plaintiffs’
claims.
In addition to filing the Complaint and exhibits, Plaintiffs filed a Motion for Appointment
of Pro Bono Counsel (Docket No. 2) alleging counsel is needed in order to protect civil rights.2
Plaintiffs failed to pay the $350.00 filing fee for civil actions, or to seek a waiver of the
2
Plaintiffs erroneously seek appointment of counsel under the Criminal Justice Act, 18
U.S.C. § 3006A. This statute does not provide for appointment of pro bono counsel and does not
apply to civil actions such as the type presented here. Rather, the District Court has a separate
Pro Bono Plan for appointment of pro bono counsel in civil cases.
2
filing fee due to indigency.
DISCUSSION
I.
The Filing Fee
A party (or parties) bringing a civil action must either (1) pay the $350.00 filing fee,
see 28 U.S.C. § 1914(a); or (2) seek leave to proceed without prepayment of the filing fee, see 28
U.S.C. § 1915 (proceedings in forma pauperis). Where, as here, Plaintiff Alfred Craven is a
prisoner (as defined by 28 U.S.C. § 1915(h)), a motion for waiver of prepayment of the filing fee
must be accompanied by “a certified copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period immediately preceding the filing of the
complaint ... obtained from the appropriate official of each prison at which the prisoner is or was
confined.” 28 U.S.C. § 1915(a)(2).3
In this District, it is the practice to apportion the filing fee between or among plaintiffs,
because only one filing fee of $350.00 may be collected. Here, Alfred Craven would be
responsible for paying $175.00, and James Craven would be responsible for paying $175.00.
In light of the above, Alfred Craven is directed either to pay his proportionate share of
the filing fee within 21 days of this Memorandum and Order or in the alternative, file an
application to proceed in forma pauperis accompanied by his certified prison account statement.
3
Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the
$350.00 filing fee, notwithstanding the grant of in forma pauperis status. Based on the
information contained in the prison account statement, the Court will direct the appropriate
prison official to withdraw an initial partial payment from the plaintiff’s account, followed by
payments on a monthly basis until the entire filing fee obligation is paid in full. See 28 U.S.C.
§ 1915(b)(1)-(2). Even if the action is dismissed upon a preliminary screening, see 28 U.S.C.
§§ 1915(e)(2), 1915A, the plaintiff remains obligated to pay the fee, see McGore v.
Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997) (§ 1915(b)(1) compels the payment of the fee
at the moment the complaint is filed).
3
Additionally, James Craven is directed either to pay his proportionate share of the filing fee
within 21 days or file an application to proceed in forma pauperis. Failure to comply with this
directive may result in the dismissal of claims.4
The Clerk shall also send a copy of this Memorandum and Order to the Treasurer’s
Office at FMC Devens in order to facilitate any request by Alfred Craven for a certified prison
account statement. The Court requests that the Treasurer’s Office include in any prison account
statement Alfred Craven’s average monthly deposits for the six-month period preceding the date
the Complaint was filed, as well as the average monthly balance for that same period.
II.
Failure of James Craven to Sign Complaint
Notwithstanding the above, this Court notes that James Craven has not signed the
Complaint as required by Rule 11(a) of the Federal Rules of Civil Procedure. See Fed. R.Civ. P.
11(a). Under Rule 11(a), a court may strike an unsigned paper unless the omission is promptly
corrected after being called to the party’s attention. Id.
Accordingly, unless James Craven signs an Amended Complaint pursuant to this
Memorandum and Order, all claims asserted by him will be dismissed.5
III.
Screening of the Complaint
Because Alfred Craven is a prisoner, he is subject to the provisions of the Prison
Litigation Reform Act. The Prison Litigation Reform Act of 1995 (“PLRA”), Title VIII of
Pub.L. 104-134, 110 Stat. 1321-1375 (1996), enacted several provisions which grant the court
4
For the convenience of litigants, this Court provides a form application to seek leave to
proceed in forma pauperis. The Clerk shall provide Plaintiffs with standard applications.
5
If this action or any claims are subject to dismissal, the case may be assigned to a
District Judge for further proceedings.
4
the authority to screen and dismiss prisoner complaints. See 28 U.S.C. § 1915 (proceedings in
forma pauperis); 28 U.S.C. § 1915A (screening of suits against governmental officers and
entities).6
Here, the Plaintiffs have not yet been allowed to proceed in forma pauperis and therefore
the screening of the Complaint under 28 U.S.C. § 1915(e) is not authorized. Moreover, because
it does not appear that the Defendants are governmental entities, no preliminary screening is
authorized under 28 U.S.C. § 1915A. Nevertheless, this Court has inherent authority to manage
its own cases and to review a case to determine, among other things, whether or not it is
frivolous as that term is used in legal parlance. See Bustos v. Chamberlain, 2009 WL 2782238,
*2 (D.S.C. 2009) (noting that the court has inherent authority “to ensure a plaintiff has standing,
that subject matter jurisdiction exists, and that a case is not frivolous”) citing, inter alia, Mallard
v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 307-308 (1989);
Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (where a § 1915 screening was not applicable
because a pro se party paid the filing fee, the Court still had inherent authority “wholly aside
from any statutory warrant” to act sua sponte); and Rolle v. Berkowitz, 2004 WL 287678, *1
(S.D.N.Y. 2004) (sua sponte dismissal in fee-paying pro se case is warranted where the claims
presented no arguably meritorious issue to consider). See also Gaffney v. State Farm Fire and
Cas. Co., 294 Fed. Appx. 975, 977 (5th Cir. 2008) (unpublished) (“This court has on numerous
occasions recognized the inherent authority of a district court to dismiss a complaint on its own
6
Section 1915A authorizes the Court to review prisoner complaints in civil actions in
which a prisoner seeks redress from a governmental entity, or officers or employees of a
governmental entity, and to dismiss the action regardless of whether or not the plaintiff has paid
the filing fee, if the complaint lacks an arguable basis in law or fact, fails to state a claim, or
seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A.
5
motion for failure to state a claim.”).
In addition to the statutory screening provisions and the inherent authority of the Court to
manage its cases, this Court has an independent obligation to inquire, sua sponte, into its subject
matter jurisdiction. See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004); Fed. R. Civ. P.
12(h)(3) (“If the court determines ... it lacks subject matter jurisdiction, the court must dismiss
the action.”). See also In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988) (“It is too
elementary to warrant citation of authority that a court has an obligation to inquire sua sponte
into its subject matter jurisdiction, and to proceed no further if such jurisdiction is wanting.”).
In connection with the preliminary screening conducted here, the Plaintiffs’ Complaint is
construed generously because they are proceeding pro se. Hughes v. Rowe, 449 U.S. 5, 9
(1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v.
U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000). However, even under a broad reading,
the claims presented in this action are subject to dismissal for the reasons set forth below.
A.
Lack of Respondeat Superior Liability of BNH or Its Unnamed Supervisor
Plaintiffs seek to hold BNH and its Supervisor liable for civil rights violations
presumably based on actions or inactions of its employees. Their constitutional claims are not
plausible, however, because there is no vicarious liability (i.e., no respondeat superior liability)
for claims arising under 42 U.S.C. § 1983.7 See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). “It
7
Section 1983 of Title 42 creates a cause of action for persons who are denied a federally
protected right by a person acting under color of state law. See, e.g., Baker v. McCollan, 443
U.S. 137 (1979) (constitutional deprivations); Maine v. Thiboutot, 448 U.S. 1 (1980) (statutory
deprivations). “Section 1983 ‘is not itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere conferred.’” Felton v. Lincoln, 429 F. Supp. 2d
226, 238 (D. Mass. 2006) (quoting Graham v. Connor, 490 U.S. 386, 393-94 (1989)); 42
U.S.C.A. § 1983. “It is well established that ‘a litigant complaining of a violation of a
6
is well-established that ‘only those individuals who participated in the conduct that deprived the
plaintiff of his rights can be held liable’” under § 1983. Velez-Rivera v. Agosto-Alicea, 437
F.3d 145, 156 (1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir.
2005)). Accordingly, to the extent Plaintiffs seek to hold BNH and its Supervisor liable for the
civil rights violations of its employees, such claims would fail.
B.
Failure to State Plausible Claims in Compliance With Fed. R. Civ. P. 8
Next, to the extent that Plaintiffs seeks to hold liable any unnamed individual employees
of BNH, they fail to state plausible claims in accordance with Rule 8 of the Federal Rules of
Civil Procedure. Rule 8(a) requires a plaintiff to include in the complaint, inter alia, “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). This statement must “‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests,’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration in original)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see Rivera v. Rhode
Island, 402 F.3d 27, 33 (1st Cir. 2005). It must afford the defendant(s) a “[‘]meaningful
opportunity to mount a defense,’” Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 123 (1st Cir.
2004) (quoting Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)). See
also Redondo-Borges v. U.S. Dept. of Housing and Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005).
“In a civil rights action as in any other action ...., the complaint should at least set forth minimal
facts as to who did what to whom, when, where, and why.” Educadores Puertorriqueños en
constitutional right does not have a direct cause of action under the United States Constitution
but [rather] must utilize 42 U.S.C. § 1983.’” Wilson v. Moreau, 440 F. Supp. 2d 81, 92 (D.R.I.
2006) (alteration in original) (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d
912, 925 (9th Cir. 2001)).
7
Acción v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004). Although “the requirements of Rule
8(a)(2) are minimal . . .[,] ‘minimal requirements are not tantamount to nonexistent
requirements.’” Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)).
Here, apart from alleging that unspecified BNH employees were negligent, the Complaint
fails to set forth the necessary “who did what to whom, when, where, and why” that would
provide the Defendants with sufficient notice of the constitutional and/or negligence claims.
Moreover, by pleading in the manner they have, i.e., collectively asserting claims against the
Defendants, Plaintiffs have failed to meet Rule 8 pleading requirements. See Bagheri v.
Galligan, 160 Fed. Appx. 4, 5, 2005 WL 3536555, *1 (1st Cir. 2005) (unpublished) (finding
complaint deficient because, inter alia, it failed to state clearly which defendant or defendants
committed each of the alleged wrongful acts; “[the district court’s requirement of an amended
complaint] to remedy this deficiency did not demand more than the minimum necessary to
satisfy notice pleading standards.”). See also Atuahene v. City of Hartford, 10 Fed. Appx. 33,
*34, 2001 WL 604902, *1 (2d Cir. 2001) (unpublished) (“By lumping all the defendants together
in each claim and providing no factual basis to distinguish their conduct, [plaintiff’s] complaint
failed to satisfy this minimum standard....”).8
8
“District courts are not required to conjure up questions never squarely presented to
them or to construct full blown claims from sentence fragments.” Terrance v. Cuyahoga County,
2005 WL 2491531 at *1 (N.D. Ohio 2005) citing Beaudett v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985). See McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979) (court is not required
to “conjure up unpled allegations,” notwithstanding duty to be less stringent with pro se
complaints). Such an exercise would “require ... [the courts] to explore exhaustively all
potential claims of a pro se plaintiff, ... [and] would ... 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.” Terrance, 2005 WL 2491531, at *1, quoting
Beaudett, 775 F.2d at 1278. See also Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (“It is
certainly reasonable to ask that all plaintiffs, even pro se plaintiffs,.... alert party defendants that
8
Moreover, with respect to their Eighth Amendment claims under § 1983 for deliberate
indifference to Joan’s serious medical need, the Plaintiffs fail to set forth underlying facts to state
plausible claims upon which relief may be granted. In order to state a § 1983 claim, a plaintiff
must allege: (1) that the conduct complained of was committed by a person acting under color of
state law; and (2) that this conduct deprived the plaintiff of rights, privileges or immunities
secured by the Constitution or laws of the United States. Rumford Pharmacy, Inc. v. City of East
Providence, 970 F.2d 996, 998 (1st Cir. 1992); Velez-Rivera, 437 F.3d at 151-52.
At the outset, Plaintiffs fail meet the first element noted above, because there are no
underlying facts set forth that would denote state action by any Defendant. Rather, it appears
that Dr. McNamee is a private physician, and that BNH is a private, for-profit company. Thus,
their constitutional claims fail at the outset.9
they may be individually responsible in damages. The trial and appellate courts should not have
to guess at the nature of the claim asserted.”).
9
It is “[o]nly in rare circumstances” that private parties can be viewed as state actors.
Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005) (quoting
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)). The First Circuit employs a three-part
test to determine whether a private party can be characterized as a state actor: the state
compulsion test, the nexus/joint action test, and the public function test. Id. at 5 citing Rockwell
v. Cape Cod Hospital, 26 F.3d 254, 257 (1st Cir. 1994) and Perkins v. Londonderry Basketball
Club, 196 F.3d 13, 18-21 (1st Cir.1999). “Under the state compulsion test a private party is
fairly characterized as a state actor when the state ‘has exercised coercive power or has provided
such significant encouragement, either overt or covert, that the [challenged conduct] must in law
be deemed to be that of the State.’’” Estades-Negroni, 412 F.3d at 5 (quoting Blum v. Yaretsky,
457 U.S. 991, 1004 (1982)). Under the nexus/joint action test, a private party can be
characterized as a state actor “where an examination of the totality of the circumstances reveals
that the state has ‘so far insinuated itself into a position of interdependence with the [private
party] that it was a joint participant in [the challenged activity].’” Id. (quoting Bass v. Parkwood
Hospital, 180 F.3d 234, 242 (5th Cir. 1999)). Finally, under the public function test, a private
party can be characterized as a state actor “if the plaintiff establishes that, in engaging in the
challenged conduct, the private party performed a public function that has been ‘traditionally the
exclusive prerogative of the State.’” Id. (quoting Blum, 457 U.S. at 1005). Here, there is nothing
9
Additionally, Plaintiffs’ assertion of Eighth Amendment violations and their assertion of
cruel and unusual punishment because of the pain Joan suffered are not cognizable. The Eighth
Amendment imposes a duty to attend to the “serious medical needs of prisoners.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976). Because Joan was not a prisoner, the Eighth Amendment
simply does not apply. See, e.g., Montes v. Ponce Municipality, 79 Fed. Appx. 448, 450, 2003
WL 22461540, *2 (1st Cir. 2003) (unpublished) (noting that since pretrial detainees technically
were not being “punished,” the Eighth Amendment did not apply; rather, for non-prisoners, the
liberty component of the Fourteenth Amendment’s Due Process Clause applied).
Even assuming that the same or similar standards for due process claims were applied in
this case, Plaintiffs still fail to set forth plausible due process claims. The First Circuit has stated
that “[d]eliberate indifference is conduct that offends evolving standards of decency in a
civilized society.” DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991). It is more than mere
negligence; it requires that a defendant have a “culpable state of mind and intended wantonly to
inflict pain.” Id. at 19. Here, Plaintiffs allege that the Defendants’ actions or inactions
constituted negligence, gross negligence, malfeasance, and medical malpractice. Despite
Plaintiffs’ contention that this negligent conduct amounts to deliberate indifference, their
arguments are misplaced. In legal effect, all of these assertions denote a state of mind less than
that required to set forth constitutional deliberate indifference/denial of due process claims.
There is no indication of any intention of any Defendant to wantonly inflict pain. Simply put,
Plaintiffs’ allegations amount to nothing more than state law claims based on negligence,
medical malpractice, and wrongful death. See Mass. Gen. Laws ch. 229, § 2 (Wrongful death;
alleged that suggests the Defendants’ actions fall within any of these three categories.
10
damages).10 They do not present federal civil rights claims.
C.
Wrongful Death Claims Cannot Be Raised By Plaintiffs
In addition to the legal impediments discussed above, this Court notes that under the
Massachusetts law of wrongful death, only the executor/trix or administrator/trix may bring a
wrongful death action. See Mass. Gen. Laws ch. 229, § 2 (providing that “[d]amages under this
section shall be recovered in an action of tort by the executor or administrator of the deceased”).
“The wrongful death statute provides for a single action brought by the decedent’s executor or
administrator. The executor or administrator presents all claims by the designated beneficiaries
for damages flowing from the wrongful death.” Hallett v. Town of Wrentham, 398 Mass. 550,
555, 499 N.E.2d 1189, 1192 (Mass. 1986) (citing Gaudette v. Webb, 362 Mass. 60, 72, 284
N.E.2d 222 (Mass. 1972) for the proposition that the “administratrix ... acts merely as a
representative or conduit for the children’s recovery”); see Anagnos v. Hultgren, 445 F. Supp. 2d
184, 190 (D. Mass. 2006) (stating that actions for wrongful death against a municipality must be
brought by the executor or administrator of the decedent).
Here, neither Plaintiff has alleged that he is the authorized Executor or Administrator of
the Estate of Joan Henry. Thus, any claim for wrongful death is not cognizable in this Court.
D.
Plaintiffs May Not Represent the Estate of Joan Henry as Pro Se Litigants
Even if Plaintiffs were the Co-Executors or Administrators of Joan’s estate, they may not
10
This state statute imposes liability on a person who, among other things, negligently
causes the death of another person. “The statute largely incorporates common law tort
principles.” Davis v. United States, 670 F.3d 48, 53 (1st Cir. 2012) citing Matsuyama v.
Birnbaum, 452 Mass. 1, 890 N.E.2d 819, 836–38 (2008).
11
bring this wrongful death action in their pro se capacity. Rather, the action must be filed by an
attorney who is duly-licensed to appear in this Court.
A plaintiff’s capacity to bring suit for wrongful death “is generally controlled by state
law governing survivorship and wrongful death actions.” Nordberg v. Town of Charlton, 2012
WL 2990763 at *3 (D. Mass. Jul. 19, 2012) (Saylor, J.). As District Judge Saylor of this Court
recently has stated:
Capacity to bring an action for wrongful death is similarly limited by a
requirement that “the ‘executor or administrator of the deceased,’ rather than any
beneficiary of the estate as such, act as the plaintiff in a wrongful death action
brought on behalf of the designated categories of beneficiaries.” Marco v. Green,
415 Mass. 732, 735–36, 615 N.E.2d 928 (1993). See Mass. Gen. Laws ch. 229, §
2. Thus, even the legal beneficiary of a wrongful death action may not assert that
claim in his or her individual capacity. See Bennett v. United States, 389 F. Supp.
2d 121, 124 (D. Mass. 2005).
***
Survival and wrongful death actions are especially problematic when they are pursued
pro se. By law, there are only two ways which an individual may appear in federal court:
either personally, or by counsel. 28 U.S.C. § 1654. Accordingly, “an individual who is
not an attorney admitted to practice before this court is not authorized to submit
pleadings (including a complaint) or in any other manner appear on behalf of another
person or entity.” Matthews v. Cordeiro, 144 F. Supp. 2d 37, 38 (D. Mass. 2001); see
also Herrera–Venegas v. Sanchez–Rivera, 681 F.2d 41 (1st Cir. 1982). Under Local Rule
83.5.3(c), “a person who is not a member of the bar of this court ... will be allowed to
appear and practice before the court only in his own behalf.” (emphasis added). The
estate of a decedent is a separate legal entity from an individual plaintiff. Thus,
even if a plaintiff is the executor of an estate or is otherwise authorized to pursue a
decedent’s legal claim, he may not do so pro se.
Nordberg, 2012 WL 2990763 at *4 (emphasis in bold added); see also Cohen v. Attorney
General of Massachusetts, 2011 WL 5008088, at * 7 (D. Mass. 2011) (“Notwithstanding that
[plaintiff] may have authority to act based on her appointment as Administratrix, that is not
sufficient to permit her to represent the interest of the Estate, where she is not a duly-licensed
12
attorney admitted to practice in this Court”); cf. Pridgen v. Anderson, 113 F.3d 391, 393 (2d Cir.
1997) (holding that “an administratrix or executrix of an estate may not proceed pro se when the
estate has beneficiaries or creditors other than the litigant.”).
Without further information as to the Plaintiffs’ legal status vis-a-vis the Estate, and
without further information whether there are any other beneficiaries or creditors other than
Plaintiffs, this Court presumes that Plaintiffs may not proceed with a wrongful death claim unless
the claim is brought by duly-licensed counsel acting on behalf of the Estate.
E.
Plaintiff Alfred Craven May Not Pursue Claims on Behalf of His Brother James
Similarly, it appears that Alfred Craven also is seeking to assert claims of his brother
James (since James has not signed the Complaint). As a non-attorney, he may not do so. See
Local Rule 83.5.3(c).
IV.
Lack of Subject Matter Jurisdiction
In addition, this Court is not satisfied that Plaintiffs have set forth any claims sufficient to
invoke the subject matter jurisdiction of this Court. In order to proceed with this action in federal
court, Plaintiffs must demonstrate that there is either: (1) federal question jurisdiction; or (2)
diversity jurisdiction. See 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 1332
(diversity jurisdiction). As detailed below, Plaintiffs have not set forth either basis.
A.
No Federal Bona Fide Federal Question Presented
Federal district courts have original jurisdiction over “federal question” cases. A federal
question “aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331; Viqueira v. First Bank, 140 F.3d 12, 17 (1st Cir. 1998). A claim arises under federal law
within the meaning of § 1331 if a federal cause of action emerges from the face of a well-pleaded
13
complaint. See City of Chicago v. International College of Surgeons, 522 U.S. 156, 163 (1997).
The well-pleaded complaint rule generally restricts the exercise of federal question jurisdiction to
instances in which a federal claim is made manifest within the four corners of a plaintiff’s
complaint. Viqueira, 140 F.3d at 17.
In this case, as noted above, although Plaintiffs couch their claims in terms of civil rights
violations under § 1983, the Court finds that, as pled, no bona fide federal civil rights claim is
presented within the four corners of the Complaint; only state law claims for negligence,
malpractice, and wrongful death reasonably can be construed to be presented. Thus, there is no
bona fide basis for the assertion of jurisdiction based on § 1331 (federal question).
Absent an independent basis for federal question subject matter jurisdiction, this Court
would decline to exercise its discretion to invoke supplemental jurisdiction over the state law
claims. Under 28 U.S.C. § 1367, a “district court may decline to exercise supplemental
jurisdiction” if “the district court has dismissed all claims under which it has original
jurisdiction.” 28 U.S.C. § 1367(c)); see Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375
F.3d 99, 104-105 (1st Cir. 2004); Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st
Cir. 1995) (“As a general principle, the unfavorable disposition of a plaintiff’s federal claims at
the early stages of a suit, well before the commencement of trial, will trigger the dismissal
without prejudice of any supplemental state-law claims.”).
B.
No Diversity Jurisdiction
Next, in addition to federal question jurisdiction, district courts have original jurisdiction
over civil actions between citizens of different states where the amount in controversy exceeds
$75,000.00. 28 U.S.C. § 1332(a). Diversity must be complete: the citizenship of each plaintiff
14
must be shown to be diverse from that of each defendant. Owen Equip. & Erection Co. v. Kroger,
437 U.S. 365, 373-74 (1978).
In this case, Alfred Craven, as a prisoner in custody in Ayer, Massachusetts, is, absent any
other evidence to the contrary, presumed to be a citizen of Massachusetts for purposes of the
diversity analysis. The Defendant BNH is alleged to be located in Boston, Massachusetts, and
thus it, and its employees, also are presumed to be citizens of Massachusetts for this analysis.
Thus, on this record, it appears that at least one Plaintiff and one Defendant are citizens of the
same state, and therefore complete diversity is destroyed. In short, there is nothing in the
Complaint from which this Court could reasonably infer diversity of citizenship exists so that this
Court could entertain Plaintiffs’ state law claims under 28 U.S.C. § 1332.
In light of the above, in addition to the legal impediments subjecting this action to
dismissal for failure to state a claim upon which relief may be granted, this action also is subject
to dismissal for lack of jurisdiction.
V.
Declination to Appoint Pro Bono Counsel
Plaintiffs seek appointment of pro bono counsel to protect civil rights. The decision to
appoint counsel is discretionary, and a plaintiff does not have a constitutional or statutory right to
appointed counsel. Dellenbach v. Hanks, 76 F.3d 820, 823 (7th Cir. 1996) cert. denied, 519 U.S.
894 (1996). In order to qualify for appointment of counsel, a party must be indigent and
exceptional circumstances must exist such that the denial of counsel will result in a fundamental
unfairness impinging on the party’s due process rights. See DesRosiers, 949 F. 2d at 23. See also
Manisy v. Maloney, 283 F. Supp. 2d. 307, 317 (D. Mass. 2003). Here, Plaintiffs have not
demonstrated through financial disclosures that they are indigent and unable to afford to retain
15
counsel on their own. Moreover, even if Plaintiffs may not be able to afford counsel at a set fee,
they have not shown that counsel could not be secured on a contingency fee basis.
More importantly, however, for all the reasons set forth above outlining the numerous
legal impediments to this action, this Court finds that, at least as pled, the likelihood of success on
the merits is highly questionable. Therefore, this is not the type of case that warrants the
expenditure of the scarce pro bono resources of the District Court. Accordingly, the Plaintiffs’
Motion for Appointment of Pro Bono Counsel (Docket No. 2) is DENIED.
VI.
Order to Show Cause and File an Amended Complaint
In light of the above, the Court will recommend that the action be dismissed unless, within
42 days of the date of this Memorandum and Order, Plaintiffs demonstrate good cause in writing
why the claims should not be dismissed. In filing a show cause response, Plaintiffs should not
reiterate their claims; rather, they should address the legal impediments discussed above (i.e., lack
of respondeat superior liability, failure to comply with Rule 8, failure to set forth state action by
the Defendants, inability to proceed with wrongful death claims pro se, and lack of subject matter
jurisdiction over this action).
Additionally, Plaintiffs must file, within the 42 day period, an Amended Complaint that
comports with Rule 8 (setting forth plausible claims upon which relief may be granted) and
demonstrating the subject matter jurisdiction of this Court. Failure to comply with these
directives will result in a dismissal of this action.
VII.
Consent Pending
This action was assigned to the undersigned pursuant to the Court’s Program for Random
16
Assignment of Civil Cases to Magistrate Judges. The Clerk shall send to Plaintiffs this
Memorandum and Order along with the standard consent package with information and
instructions so that they may choose whether or not to elect to proceed before a Magistrate Judge
for all purposes. Within 35 days of the date of this Memorandum and Order, Plaintiffs shall
advise the Court whether or not they consent. Should they elect not to consent, this Court will
direct the reassignment of this case to a District Judge for further proceedings.
CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.
Within 21 days of the date of this Memorandum and Order, Plaintiff Alfred Craven shall
pay his proportionate share of the civil action filing fee or he shall file a Motion for Leave
to Proceed in forma pauperis accompanied by his certified prison account statement for
the six-month period preceding the filing of the Complaint;
2.
Within 21 days of the date of this Memorandum and Order, Plaintiff James Craven shall
pay his proportionate share of the civil action filing fee or he shall file a Motion for Leave
to Proceed in forma pauperis;
3.
Within 42 days of the date of this Memorandum and Order, Plaintiffs shall demonstrate
good cause in writing why this action should not be dismissed for the reasons stated
herein;
4.
Within 42 days of the date of this Memorandum and Order, Plaintiffs shall file an
Amended Complaint, signed by both parties or their duly-licensed representative(s), that
comports with Rule 8, setting forth plausible claims upon which relief may be granted,
and setting forth the basis for this Court’s subject matter jurisdiction;
5.
Plaintiffs’ Motion for Appointment of Pro Bono Counsel (Docket No. 2) is DENIED;
6.
Plaintiffs may not represent the interests of others pro se; and
7.
Within 35 days of the date of this Memorandum and Order, Plaintiffs shall notify the
Court in writing advising whether they consent or refuse to consent to proceed before a
Magistrate Judge for all purposes.
17
SO ORDERED.
DATED: December 6, 2012
/s/ Jennifer C. Boal
JENNIFER C. BOAL
UNITED STATES MAGISTRATE JUDGE
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?