Green v. Creighton/CHI Health et al

Filing 13

MEMORANDUM AND ORDER that this action is dismissed with prejudice for failure to state a claim. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTHONY SPENCER GREEN, SR.,
Plaintiff,

8:16CV480

vs.
CREIGHTON/CHI HEALTH,
REBECCA STORMONT, MD;
VIRGINIA J. SMITH, APRN; and
ANNIE E. KNIERIM, Orthopedic
Surgeon;

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed his Complaint on October 24, 2016. (Filing No. 1.) He has
been given leave to proceed in forma pauperis. (Filing No. 6.) The court now
conducts an initial review of Plaintiff’s Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff filed his Complaint against four Defendants: Creighton/CHI Health,
Rebecca Stormont, MD, Virginia J. Smith, APRN, and Annie E. Knierim, an
orthopedic surgeon. (Filing No. 1.) Plaintiff alleges that he resides in South
Dakota. (Id. at CM/ECF p. 2.) He alleges that Creighton/CHI Health is located in
Nebraska, and he provides the Nebraska work addresses of the remaining
defendants. (Id.) Condensed and summarized, the court understands Plaintiff’s
claim to be that Defendants denied him proper medical attention in violation of his
civil rights because they refused to perform a CT scan or MRI on his leg that
contains a titanium rod. (Id. at CM/ECF pp. 1-4.) Plaintiff wants the titanium rod
removed from his leg because it is connected to a “medical cloning computer
program.” (Id. at CM/ECF pp. 5-6.) He believes that transmissions from the

titanium rod cause him physical symptoms such as “headaches, blood brain tissue
discharge . . . and dark black/dark brown bowel movement” and to hear voices. (Id.
at CM/ECF pp. 1, 3, 5.) Plaintiff seeks compensation for lost wages, “mental
anguish and pain and suffering from [the] program,” and 1 million to 50 million
dollars. (Id. at CM/ECF pp. 5-6.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court
must dismiss a complaint or any portion of it that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or
grounds for a claim, and a general indication of the type of litigation involved.’”
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)
(quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a]
pro se complaint must be liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal
quotation marks and citations omitted).

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III. DISCUSSION
Plaintiff’s Complaint does not establish subject matter jurisdiction
jurisdiction. Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1332,
commonly referred to as “diversity of citizenship” jurisdiction. For purposes of 28
U.S.C. § 1332, “diversity of citizenship” means that “the citizenship of each
plaintiff is different from the citizenship of each defendant.” Ryan v. Schneider
Nat’l Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001).
The Complaint states Plaintiff’s residence, but not his citizenship. Residence
does not equate with citizenship. Janzen v. Goos, 302 F.2d 421, 424 (8th Cir.
1962). The Complaint also fails to state the citizenship of the individual defendants
as well as the place of incorporation and principal place of business of
Creighton/CHI. See Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th Cir.
1987) (complaint failed to establish diversity jurisdiction where it stated Plaintiff’s
residency, but not his citizenship, and failed to state the principle places of
business of corporate defendants). In addition, the amount in controversy must be
greater than $75,000.00 to establish diversity jurisdiction. 28 U.S.C. § 1332(a).
Due to the nature of Plaintiff’s allegations, the court doubts the amount in
controversy is 1 million to 50 million dollars or that Plaintiff can show by a
preponderance of the evidence that the amount claimed is legitimate. See Trimble
v. Asarco, Inc., 232 F.3d 946, 959 (8th Cir. 2000) (quotation omitted) (abrogated
on other grounds by Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546
(2005)). In short, Plaintiff’s allegations fail to establish diversity jurisdiction under
§ 1332(a).
However, subject matter jurisdiction is also proper where a plaintiff asserts a
“non-frivolous claim of a right or remedy under a federal statute,” commonly
referred to as “federal question” jurisdiction. Northwest South Dakota Prod. Credit
Ass’n v. Smith, 784 F.2d 323, 325 (8th Cir. 1986). Liberally construed, Plaintiff
fails to allege a violation of his civil rights under 42 U.S.C. § 1983. Moreover, to
obtain relief under 42 U.S.C. § 1983, a plaintiff must show (1) the deprivation of a
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right secured by the Constitution or laws of the United States, and (2) that a person
acting under color of state law caused the deprivation. West v. Atkins, 487 U.S. 42,
48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). If the actions of
the defendant were “not state action, our inquiry ends.” Rendell-Baker v. Kohn,
457 U.S. 830, 838 (1982). Plaintiff does not allege that any of Defendants’ actions
were taken under color of state law.
Even if Plaintiff could correct these defects in an amended complaint, he
cannot “nudge” his claim “across the line from conceivable to plausible.” See
Twombly, supra. His allegations are not sufficient to state a claim against any
Defendant.1 It is not plausible that the titanium rod in Plaintiff’s leg is connected to
a “medical cloning computer program” or that it emits transmissions. Accordingly,
the court will not give Plaintiff an opportunity to amend his Complaint in this
matter because it is obvious that amendment would be futile.
IT IS THEREFORE ORDERED that:
1.

This action is dismissed with prejudice for failure to state a claim.

2.

Judgment shall be entered by separate document.

Dated this 3rd day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

1

The court assumes that Plaintiff attempts to claim medical malpractice
against Defendants.
4