Langama v. Buchwald et al

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 3 Report and Recommendation, 2 Application to Proceed in District Court without Prepaying Fees or Costs filed by Tanya R Langama, 6 Application to Proceed to Appeal In Forma Pauperis on Appeal filed by Tanya R Langama (Written Opinion). Signed by Judge Donovan W. Frank on 12/31/2014. (RLB) CC: Langama. (kt)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Tanya Langama,

Civil 14-4562 (DWF/FLN)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Dr. Buchwald, Fairview Hospital;
North Memorial Hospital;
Dr. Gregory J. Vitas; and
Dr. Nathan Noznesky,
Defendants.

I.

Report and Recommendation
The above matter comes before the Court upon the Report and Recommendation

(“R&R”) of United States Magistrate Judge Franklin L. Noel dated November 14, 2014.
(Doc. No. 3.) No objections have been filed to that Report and Recommendation in the
time period permitted. 1 However, on December 15, 2014, Plaintiff Tanya R. Langama
(“Plaintiff”) filed a self-styled Amended Complaint. (Doc. No. 4.) Plaintiff has also
filed a Notice of Appeal to the Eighth Circuit Court of Appeals (Doc. No. 5) and an
Application to Proceed In Forma Pauperis (“IFP”) on Appeal (Doc. No. 6). 2
The factual background for the above-entitled matter is clearly and precisely set
forth in the Report and Recommendation and is incorporated by reference.

1

Per the R&R, objections were due by December 1, 2014. (Doc. No. 3 at 5.)

The Court has carefully examined the filings in this matter, including Plaintiff’s
Amended Complaint. The Court concludes that, despite Plaintiff’s unfortunate alleged
medical issues, her case cannot proceed in federal court due to lack of subject matter
jurisdiction. As the Magistrate Judge found, the parties to the case are all citizens of
Minnesota and, therefore, the Court does not have jurisdiction on diversity of citizenship
grounds. (See Doc. No. 3 at 2-3.) Additionally, as the Magistrate Judge also found,
Plaintiff’s claims are state law negligence-based claims and, therefore, cannot provide the
basis for federal question jurisdiction. (See id. at 3.) Even taking into consideration the
additional allegations contained within Plaintiff’s self-styled Amended Complaint (see
Doc. No. 4), Plaintiff’s complaint would still not survive a motion to dismiss for the
reasons stated in the R&R. Therefore, Plaintiff’s claims must be dismissed for lack of
subject-matter jurisdiction, and the Court adopts the Magistrate Judge’s
recommendations.
II.

In Forma Pauperis on Appeal
Plaintiff has also filed a notice of appeal and an application to proceed

in forma pauperis (“IFP”) on appeal. (Doc. Nos. 5 & 6.) Plaintiff appears to be
attempting to appeal the November 14, 2014 R&R to the extent it recommends the
dismissal of her case (without prejudice). (See Doc. No. 3.) With this Order, the Court
adopts the Magistrate Judge’s November 14, 2014 R&R. Thus, with this Order, all
claims are dismissed, and the Court enters Judgment as to the entire case. As a result,
2

Doc. Nos. 5 and 6 were both filed on December 15, 2014.
2

any IFP on appeal application filed after this Order would be properly before the Court.
To conserve resources, the Court considers Plaintiff’s already-filed IFP application at this
time and does so as if it was filed in light of this Order, which disposes of the case in its
entirety.
A litigant who seeks to be excused from paying the $455 filing fee for an appeal in
a federal case may apply for IFP status under 28 U.S.C. § 1915. See also Fed. R. App.
P. 24(a). To qualify for IFP status, the litigant must demonstrate that he or she cannot
afford to pay the full filing fee. 28 U.S.C. § 1915(a)(1). Even if a litigant is found to be
indigent, however, IFP status will be denied if the Court finds that the litigant’s appeal is
not taken “in good faith.” 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). An appeal
is not taken in good faith if the claims to be raised on appeal are factually or legally
frivolous. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). An appeal is
frivolous, and therefore cannot be taken in good faith, “where it lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Federal courts
cannot summarily dismiss an action commenced by an IFP applicant if the facts alleged in
the applicant’s complaint are merely “unlikely.” Denton v. Hernandez, 504 U.S. 25, 33
(1992). However, an IFP action can properly be dismissed sua sponte if the allegations
in the complaint are found to be “fanciful,” “fantastic,” or “delusional,” or if they “rise to
the level of the irrational or the wholly incredible.” Id. (citing Neitzke, 490 U.S.
at 325, 328).

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In this case, the Court has reviewed the information provided by Plaintiff in her
IFP application (see Doc. No. 6) and finds that she qualifies financially for IFP status.
Moreover, although the Court is satisfied that Plaintiff’s complaint is properly being
dismissed, it cannot say that the issues raised by Plaintiff’s appeal are frivolous as the
Supreme Court has defined that term. See Neitzke, 490 U.S. at 325. Accordingly, the
Court grants Plaintiff’s application to proceed IFP on appeal. That said, it appears that
Plaintiff has filed her notice of appeal prematurely. See Fed. R. App. P. 4(a). Should
Plaintiff wish to appeal the dismissal of this action, she may be best served by filing a
new notice of appeal within the time limits allotted by Rule 4.
ORDER
With respect to the Report and Recommendation of the Magistrate Judge and upon
all of the files, records, and proceedings herein, the Court now makes and enters the
following:
1.

Magistrate Judge Franklin L. Noel’s November 14, 2014 Report and

Recommendation (Doc. No. [3]) is ADOPTED.
2.

Plaintiff’s Application to Proceed in District Court Without Prepaying Fees

or Costs (Doc. No. [2]) is DENIED AS MOOT.
3.

This matter is DISMISSED WITHOUT PREJUDICE for lack of

subject-matter jurisdiction.

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4.

Additionally, IT IS HEREBY ORDERED that Plaintiff’s Application to

Proceed in Forma Pauperis on Appeal (Doc. No. [6]) is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: December 31, 2014

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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