Hein v. Openlander

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is summarily DISMISSED due to lack of jurisdiction. A separate order of dismissal will be entered herewith. Signed by District Judge Stephen N. Limbaugh, Jr on 3/27/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DENISE J. HEIN,
Plaintiff,
v.
PATRICK OPENLANDER,
Defendant.

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No. 4:17-cv-584-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the Response to Court Order filed by plaintiff
Denise J. Hein. For the reasons explained below, this case will be dismissed for lack of
jurisdiction.
Plaintiff Denise J. Hein, an inmate at the Women’s Eastern Reception Diagnostic
Correctional Center, commenced this civil action on February 9, 2017, naming Patrick
Openlander, a psychologist, as defendant. Plaintiff identified herself and defendant as residents
of Missouri, and checked a box indicating that this Court had federal question jurisdiction over
her claims. Plaintiff alleged that, in June of 2014, defendant committed medical malpractice and
engaged in other behavior that caused a devastating tragic event. For her prayer for relief,
plaintiff sought an unspecified amount of monetary damages, and stated that defendant should
lose his license and be imprisoned “for accessory to murder.” (Docket No. 1 at 4).
Upon review, this Court noted that plaintiff did not identify the source of federal question
jurisdiction or allege that defendant was a state actor. The Court also noted that plaintiff pled no
facts tending to establish the existence of subject matter jurisdiction on the basis of diversity of
citizenship.

The Court entered an order explaining the foregoing reasons why federal

jurisdiction appeared to be absent, and gave plaintiff an opportunity to submit an amended
pleading to address the issue.
In response, plaintiff requests that “diversity of citizenship be dismissed and for federal
question to be brought up as fact . . .”. (Docket No. 6). Plaintiff then set forth thirteen grounds
for relief, each titled “Medical Malpractice.” (Id.) In support, plaintiff alleged that defendant
engaged in various forms of wrongdoing, including sexual misconduct, undue influence, fraud,
negligence, unprofessional conduct, unethical hypnotism, incompetency, misrepresentation,
emotional manipulation, and “malevolent and duplicitous behaviors” that “caused a devastating
event to occur.” (Id.) Plaintiff did not allege that defendant acted under color of state law.
Plaintiff fails to plead diversity jurisdiction, and no basis for such jurisdiction is apparent.
See 28 U.S.C. § 1332. In addition, plaintiff’s asserted bases for federal question jurisdiction are
meritless. Plaintiff fails to allege that defendant acted under color of state law, and she sets forth
no facts supporting any conceivable federal claim. Instead, her allegations set forth claims based
upon common law medical malpractice theories, which are matters of state law. See Bilal v.
Kaplan, 904 F.2d 14, 15 (8th Cir. 1990) (per curiam) (jurisdiction must affirmatively appear
clearly and distinctly in complaint; mere suggestion of federal question is not sufficient to
establish jurisdiction).
Because there is no subject matter jurisdiction under 28 U.S.C. § 1332, and because
plaintiff’s asserted bases for federal question jurisdiction are meritless, this case will be
summarily dismissed. See Fed. R. Civ. P. 12(h)(3) (if the court determines at any time that it
lacks subject matter jurisdiction, the court must dismiss the action); Biscanin v. Merrill Lynch &
Co., Inc., 407 F.3d 905, 907 (8th Cir. 2005) (“[i]f the asserted basis of federal jurisdiction is
patently meritless, then dismissal for lack of jurisdiction is appropriate”).

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Accordingly,
IT IS HEREBY ORDERED that this action is summarily DISMISSED due to lack of
jurisdiction. A separate order of dismissal will be entered herewith.
Dated this 27th day of March, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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