Mesecar #219602 v. Pennock Hospital
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NOLAND WADE MESECAR,
Plaintiff,
Case No. 1:15-cv-658
v.
Honorable Robert Holmes Bell
PENNOCK HOSPITAL,
Defendant.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such
relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro
se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, Plaintiff’s action will be dismissed for failure to state
a claim.
Factual Allegations
Plaintiff Noland Wade Mesecar presently is incarcerated with the Michigan
Department of Corrections (MDOC) at the Bellamy Creek Correctional Facility. He sues Pennock
Hospital in Hastings, Michigan.
According to the complaint, on an unspecified date, Plaintiff went to Pennock
Hospital complaining of severe pain in the back of his neck. He was forced to wait for two hours
before he was examined, and he subsequently was diagnosed with a pinched nerve, for which he was
prescribed anti-inflammatory medication. Approximately one month later, Plaintiff became fully
paralyzed. He was rushed to Borgess Hospital, where it was discovered that he had a broken neck,
which had been broken for about nine months. Plaintiff had been in the custody of the MDOC for
only six of those nine months.
Plaintiff’s neck was repaired through surgery, though Plaintiff suffers permanent
nerve damage that prevents him from standing for more than one minute at a time. He alleges that
his surgeon told him that, had the broken neck been discovered before he was paralyzed, he would
not have suffered permanent nerve damage. Plaintiff seeks $13 million in compensatory damages.
Discussion
I.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). In order for a private party’s conduct to be under
color of state law, it must be “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982); Street, 102 F.3d at 814. There must be “a sufficiently close nexus between the
State and the challenged action of [the defendant] so that the action of the latter may be fairly treated
as that of the State itself.” Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson
v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
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Plaintiff has not presented any allegations by which the inmate’s conduct could be
fairly attributed to the state. The fact that Defendant Pennock Hospital may receive public funding
and that the hospital may be licensed by the state does not render it a state actors for purposes of
§ 1983.
See Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982) (nonprofit, privately operated
school’s receipt of public funds did not make its employee discharge decisions acts of state subject
to suit under federal statute governing civil action for deprivation of rights); Kottmyer v. Maas, 436
F.3d 684, 688 (6th Cir. 2006) (allegation that hospital and social worker were subject to state
licensing was insufficient to support finding that defendants were acting under color of state law);
Adams v. Vandemark, 855 F.2d 312, 315-16 (6th Cir. 1988) (fact that nonprofit corporation was
funded almost entirely by public sources, and was subject to state regulation, without more, is
insufficient to make private entity’s decision to discharge employees attributable to state for purpose
of § 1983 action). Further, even if Defendant treated Petitioner at the state’s request and expense,
it did not thereby become a state actor. See Rendell-Baker, 457 U.S. at 841 (“private contractors do
not become the acts of the government by reason of their significant or even total engagement in
performing public contracts”); Bell v. Mgmt. and Training Corp., 112 F. App’x 219, 223 (6th Cir.
2005) (private company operating state corrections facilities is not a state actor). Because Defendant
Pennock Hospital is not a state actor, Plaintiff may not bring a § 1983 claim against it.
To the extent that Plaintiff asserts a state-law claim of medical malpractice, the Court
declines to exercise its supplemental jurisdiction over the claim. “Generally, once a federal court
has dismissed a plaintiff’s federal law claim, it should not reach state law claims.” Experimental
Holdings, Inc. v. Farris 503 F.3d 514, 521 (6th Cir. 2007) (citing United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966)); see also Landefeld v. Marion Gen. Hosp., 994 F.2d 1178, 1182
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(6th Cir. 1993). “Residual jurisdiction should be exercised only in cases where the interests of
judicial economy and the avoidance of multiplicity of litigation outweigh our concern over
needlessly deciding state law issues.” Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir.
2006). No such issues predominate in this case. Accordingly, Plaintiff’s medical-malpractice claim
will be dismissed without prejudice.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s § 1983 claim will be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b), and 42 U.S.C. § 1997e(c) for failure to state a federal claim. Plaintiff’s state-law claim
of medical malpractice will be dismissed without prejudice.
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
Dated: July 13, 2015
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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