Mack v. Family Health Care Center et al

Filing 3

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the Court lacks juri sdiction over this matter pursuant to Federal Rule of Civil Procedure 12(h)(3). An appropriate Order of Dismissal shall accompany this Memorandum and Order. re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Corrine Mack Signed by District Judge Audrey G. Fleissig on 8/20/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CORRINE MACK,

)
)
Plaintiff,
)
)
v.
)
)
FAMILY HEALTH CARE CTR., et al., )
)
Defendants.
)

No. 4:13CV1553 AGF

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff for leave to
commence this action without prepayment of the filing fee pursuant to 28 U.S.C. §
1915. Upon consideration of the financial information provided with the motion, the
Court finds that plaintiff is financially unable to pay any portion of the filing fee. As
a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Additionally, the Court has reviewed the complaint and will dismiss
it for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(h)(3).
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from

such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify the
allegations in the complaint that are not entitled to the assumption of truth. Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Id. at 1949. Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the
“mere possibility of misconduct.” Id. The Court must review the factual allegations
in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the
Court may exercise its judgment in determining whether plaintiff’s conclusion is the

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most plausible or whether it is more likely that no misconduct occurred. Id. at 1950,
51-52.
The Complaint
Plaintiff, a resident of St. Louis, Missouri, brings this action against the Family
Health Care Center, Dr. Caroline Day and Irene LNU, alleging that defendants violated
St. Louis “City Ordinance 67119.”1
In the “Statement of Claim,” section of the complaint, plaintiff alleges that “Dr.
Caroline Day and her Assistant Irene LNU that I could not be seeing or make doctor
appointments over phone (TTY) with out the assistance of someone at places for
people.” Plaintiff does not state how or why she believes this alleged behavior was
unlawful. In her request for relief, plaintiff states that she would like her case to be
tried in federal court, and she seeks monetary damages as a result of the purported
wrongdoing.
Attached to plaintiff’s complaint is a notice of right to sue from the St. Louis
Civil Rights Enforcement Agency (“CREA”), issued on June 3, 2013. In the notice of
right to sue, plaintiff is notified by CREA that she has ninety (90) days of the date of

1

From research into St. Louis “Ordinance 67119,” this ordinance appears to
relate to the St. Louis Civil Rights Enforcement Agency, its jurisdiction, powers and
staff.
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the issuance of the letter to bring a civil action against the Family Health Care Center
(the named respondent) in Missouri State Circuit Court. (emphasis added).
Discussion
Having carefully reviewed the complaint, the Court concludes that this action
should be dismissed, without prejudice, for lack of federal-court subject matter
jurisdiction. There is no indication that the amount in controversy exceeds $75,000,
and complete diversity of citizenship is lacking in that both plaintiff and defendants are
stated to be Missouri residents. See 28 U.S.C. § 1332.
Moreover, there is no indication that the instant action arises under the
Constitution, laws, or treaties of the United States, and thus, federal question
jurisdiction pursuant to 28 U.S.C. § 1331 is inapplicable. Although plaintiff may be
attempting to allege some sort of unlawful behavior, none of the named defendants is
alleged to be a state actor, and thus, there can be no cause of action under 42 U.S.C.
§ 1983. As such, this matter must be dismissed for lack of subject matter jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.

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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint because the Court lacks jurisdiction over this
matter pursuant to Federal Rule of Civil Procedure 12(h)(3).
An appropriate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 20th day of August, 2013.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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