SCHNELLER et al v. FOX SUBACUTE AT CLARA BURKE et al

Filing 93

MEMORANDUM THAT FOUR YEARS AFTER THE DEATH OF THIS ELDERLY MOTHER ON 3/31/02, JAMES D. SCHNELLER AND ALLEGEDLY THREE OTHER PLAINTIFFS FILED A PRO SE ACTION AGAINST SEVERAL DEFENDANTS WHOM HE CLAIMS ARE LEGALLY RESPONSIBLE. THE GENESIS OF THE CASE APP EARS TO BE MEDICAL AND LEGAL MALPRACTICE AS A RESULT OF THE ALLEGEDLY NEGLIGENT SERVICES RENDERED TO MR. SCHNELLER'S PARENTS DURING THE LAST FEW MONTHS OF THIER LIVES, ETC. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 6/25/09. 6/26/09 ENTERED AND COPIES MAILED TO PRO SE PARTIES AND UNREPS AND E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA J A M E S D. SCHNELLER, et al., Plaintiffs v. F O X SUBACUTE AT C L A R A BURKE, et al., Defendants : : : : : : : : C IV IL ACTION

NO. 06-1504

MEMORANDUM S T E N G E L , J. J u n e 25, 2009

F o u r years after the death of his elderly mother on March 31, 2002, James D. S c h n e lle r and allegedly three other plaintiffs1 filed a pro se action against several d e f e n d a n ts2 whom he claims are legally responsible. The genesis of the case appears to b e medical and legal malpractice as a result of the allegedly negligent services rendered to M r . Schneller's parents during the last few months of their lives. I dismissed the case

These plaintiffs include: (1) Heirs and beneficiaries of Marjorie C. Schneller, by James D. Schneller, trustee ad litem; (2) Estate of Marjorie Schneller, by and through James D. Schneller, trustee ad litem; and (3) Marjorie Zitomer, executrix of the Estate of Marjorie Schneller (Miss Zitomer is Mr. Schneller's sister and also a defendant in this action). The Third Circuit noted: "Schneller filed his complaint pro se. He also purports to represent other persons and entities. Although Schneller is entitled to represent himself pro se, he `may not appear pro se in the cause of another person or entity.'" Schneller, et al. v. Fox Subacute at Clara Burke, et al., 2008 U.S. App. LEXIS 8777, *2 n.1 (3d Cir. 2008). Accordingly, I will refer to Mr. Schneller as the sole plaintiff. The thirteen defendants include: (1) Fox Subacute at Clara Burke; (2) Gary Drizin, M.D.; (3) Debbie McCoy, R.N.; (4) Marjorie Zitomer; (5) G. Richard Schneller (the plaintiff's brother); (6) T. Sergeant Pepper, Esq.; (7) Hepburn, Wilcox, Hamilton and Putman, LLP; (8) Pennsylvania Department of Aging; (9) Pennsylvania Department of Health, Division of Nursing Care Facilities ­ Norristown Field Office; (10) Gary Layman; (11) Judith Folan; (12) Samuel J. Trueblood, Esquire; and (13) Trueblood & Amacher, LLP.
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b a se d on lack of jurisdiction before service was perfected. See Schneller, et al. v. Fox S u b a c u te at Clara Burke, et al., No. 06-1504, 2006 U.S. Dist. LEXIS 21054, *7-8 (E.D. P a . April 18, 2006). On appeal, the Third Circuit Court of Appeals vacated the dismissal h o ld in g that the plaintiff should have been given an opportunity to amend his complaint. Schneller, et al. v. Fox Subacute at Clara Burke, et al., 2008 U.S. App. LEXIS 8777, *2 n.1 (3d Cir. 2008). On December 5, 2008, Mr. Schneller filed an amended complaint which a d d e d a count for injunctive relief. See Document #33. There are four groups of defendants 3 which have filed motions to dismiss. For the f o llo w in g reasons, I will grant the motions to dismiss in their entirety. I. BACKGROUND In October 2004, Mr. Schneller began a series of actions against the defendants in th e Courts of Common Pleas of various counties within the Eastern District of P e n n sy lv a n ia. The cases were dismissed through entries of judgment non pros for failure to file Certificates of Merit as required by Rule 1042.3 of the Pennsylvania Rules of Civil P r o c e d u re . Mr. Schneller unsuccessfully attempted to re-open the cases and/or strike the jud g m en t of non pros. He then appealed this case to the Pennsylvania Superior Court w h ic h affirmed without an opinion. The Pennsylvania Supreme Court denied his petition

The defendants are grouped as follows: 1) the Commonwealth defendants; 2) Defendant T. Sergeant Pepper, his law firm, and the plaintiff's brother and sister; 3) Defendant Samuel Trueblood, his law firm, and Defendant Gary Drizin; and 4) Defendants Fox Subacute at Clara Burke and Debbie McCoy. Defendants Gary Layman and Judith Folan have not re sp o n d e d to the amended complaint which lists them as employees of the C o m m o n w e a lth defendants. See Am. Compl. ¶ 11. 2

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fo r allowance of appeal. Finally, the United States Supreme Court denied the plaintiff's p etitio n for writ of certiorari. Schneller v. Fox Subacute at Clara Burke, et al., 128 S.Ct. 5 6 (2007). The eighty-two (82) page amended complaint contains six-hundred thirty-two (6 3 2 ) paragraphs purporting to provide the basis of the plaintiff's twenty-eight (28) c la im s : C o u n t 1A C o u n t 1B C o u n t 1C Count 1D C o u n t 1E C ount 2 C ount 3 C ount 4 C ount 5 Count 6 C ount 7 C ount 8 C ount 9 C o u n t 10 C o u n t 11 C o u n t 12 C o u n t 13 C o u n t 14 C o u n t 15 C o u n t 16 C o u n t 17 C o u n t 18 ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ Violation of the Assisted Suicide Funding Restriction Act of 1997 Civil Action for Deprivation of Rights Conspiracy to Interfere with Civil Rights ­ Depriving Persons of R ig h ts and Privileges Conspiracy to Interfere with Civil Rights ­ Obstructing Justice and In tim id a tin g Parties Neglect to Prevent Deprivation of Rights and Conspiracy for D ep riv atio n of Rights ­ Failure to Warn Breach of Contract Breach of Contract Fraudulent and Negligent Inducement of Contracts Deprival of Due Process, Negligence and Intentional Tort by G o v e rn m e n t Agency Wrongful Death Survival Intentional Tort ­ Abuse of Power of Attorney and Advance Health D i r e c ti v e Negligence Per Se (violation of sixty-five state and federal statutes) Battery Battery ­ Lack of Informed Consent Survival ­ Negligent and Intentional Infliction of Emotional Distress Survival Action ­ Damages to Estate of Deceased Survival ­ Punitive Damages Negligence and Intentional Tort By Licensed Medical Defendants Negligence and Intentional Tort Against Legal Professional D e f e n d a n ts Fraud and Intentional Misrepresentation Conspiracy 3

C o u n t 19 C o u n t 20 C o u n t 21 C o u n t 22 C o u n t 23 C o u n t 24

­ ­ ­ ­ ­ ­

Breach of Confidential Relationship Negligent and Intentional Infliction of Emotional Distress Tortious Interference with Present and Prospective Economic Advantage Tortious Interference with Inheritance Punitive Damages Injunctive relief to restrain various defendants from the unscrupulous d e c is io n s to end life, or to deny the rights granted by law.

M r. Schneller also alleges violations of various Long Term Care Facility re g u la tio n s , including: 42 C.F.R. § 483.10, 42 C.F.R. § 483.15, and 42 C.F.R. § 483.25.4 S e e Am. Compl. ¶ 21. I I . STANDARD FOR A MOTION TO DISMISS A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure f o r failure to state a claim upon which relief can be granted examines the legal sufficiency o f the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations m u st be sufficient to make the claim for relief more than just speculative. Bell Atlantic C o rp . v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual a lle g a tio n s in the complaint as true, and draw all reasonable inferences in favor of the p la in tif f . Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d

These provisions "contain the requirements that an institution must meet in order to qualify to participate as a [skilled nursing facility] in the Medicare program, and as a nursing facility in the Medicaid program. They serve as the basis for survey activities for the purpose of determining whether a facility meets the requirements for participation in Medicare and Medicaid." 42 C.F.R. § 483.1(b). These regulations do not confer a private right of action. Accordingly, they provide no basis for jurisdiction pursuant to 28 U.S.C. § 1331. 4

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C ir. 1984). T h e Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all o f the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules re q u ire a "short and plain statement" of the claim that will give the defendant fair notice o f the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must a lle g e facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 555. Neither " b a l d assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v . Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern P e n n sylv a n ia Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain e n o u g h factual matters to suggest the required elements of the claim or to "raise a re a so n a b le expectation that discovery will reveal evidence of" those elements. Phillips v. C o u n ty of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 5 5 5 ). A case may be also dismissed under Rules 12(b)(1) and 12(h)(3) of the Federal R u l e s of Civil Procedure "[w]henever it appears by suggestion of the parties or otherwise th a t the court lacks jurisdiction of the subject matter. . . ." FED.R.CIV.P. 12(h)(3). Alternatively, a court choosing not to grant a motion to dismiss for lack of subject matter ju ris d ic tio n may, under Rule 12(e), grant a motion for a more definitive statement if "a p lea d in g to which a responsive pleading is permitted is so vague or ambiguous that a p a rty cannot reasonably be required to frame a responsive pleading. . . ." FED.R.CIV.P.

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1 2 (e). M o re o v e r, courts must liberally construe pro se complaints and "apply the a p p lic a b le law, irrespective of whether [the] litigant has mentioned it by name." Higgins v . Beyer, 293 F.3d 683, 688 (3d Cir. 2002). Thus, a plaintiff's complaint, however in a rtf u lly pleaded, must be held to a less stringent standard than a formal pleading drafted b y an attorney. Estelle v. Gamble, 429 U.S. 97, 106 (1976). I I I . DISCUSSION A . Non-Commonwealth Defendants ­ Federal Claims T h e se defendants primarily argue that the case should be dismissed because this c o u rt does not have subject matter jurisdiction. Federal courts are courts of limited ju ris d ic tio n , and they may only decide cases as authorized by Congress or the C o n s titu tio n . District courts have subject matter jurisdiction over federal questions p u rsu a n t to 28 U.S.C. § 1331, in which Congress grants courts "original jurisdiction of all c iv il actions arising under the Constitution, laws, or treaties of the United States." Federal courts also have subject matter jurisdiction over cases where there is c o m p l e te diversity of citizenship among the parties and the amount in controversy " e x ce e d s the sum or value of $75,000, exclusive of interest and costs" pursuant to 28 U .S .C . § 1332(a).5 The requirement of complete diversity means that "jurisdiction is

Title 28 U.S.C. § 1332(a) provides: The district courts shall have original ju ris d ic tio n of all civil actions where the matter in controversy exceeds the sum or value (c o n tin u e d ...) 6

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la c k in g if any plaintiff and any defendant are citizens of the same state." Menan Co. v. A tl. Mut. Ins. Co., 147 F.3d 287, 290 (3d Cir. 1998) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806)). When a motion to dismiss for lack of subject matter jurisdiction is before a court, " th e person asserting jurisdiction bears the burden of showing that the case is properly b e f o re the court at all stages of litigation." Packard v. Provident Nat'l Bank, 994 F.2d 1 0 3 9 , 1045 (3d Cir. 1993). This burden is applicable to cases based on diversity ju risd ictio n as well, and in such cases a plaintiff must demonstrate complete diversity b e tw e e n the parties and that the amount in controversy requirement has been met. Quaker S ta te Dyeing & Finishing Co., Inc., v. ITT Terryphone Corp., 461 F.2d 1140, 1143 (3d C ir. 1972) (citing McSparran v. Weist, 402 F.2d 867, 875 (3d Cir. 1968)). H e re , the plaintiff and eleven defendants are residents of Pennsylvania. The p lain tiff 's brother and sister are citizens of Virginia and New York, respectively. There is c le a rly no complete diversity of citizenship. Thus, jurisdiction cannot be based on 28 U .S .C . § 1332. The defendants, however, also argue that the amended complaint fails to p re se n t a federal question sufficient to confer jurisdiction. Federal question jurisdiction e x is ts in one of two circumstances: (1) where federal law creates the cause of action; or

(...continued) o f $75,000, exclusive of interest and costs, and is between: (1) citizens of different states; (2 ) citizens of a state and citizens or subjects of a foreign state; (3) citizens of different states and in which citizens or subjects of a foreign state are additional parties; and (4) a f o re ig n state as plaintiff and citizens of a state or of different states. 7

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(2 ) where the complaint poses a substantial federal question. Sodi v. Discover Financial S e rv ic e s, 2004 U.S. Dist. LEXIS 24133, *8 (E.D. Pa. 2004). Here, the plaintiff's alleged b a se s for federal question jurisdiction fall into two categories: (1) alleged violations of f e d e ra l statutes and regulations; and (2) alleged civil rights violations. Mr. Schneller cites several federal statutes and regulations throughout his amended co m p lain t. Of the twenty-eight counts contained in the amended complaint, however, o n ly seven counts attempt to set forth federal causes of action. The first count alleges a v io la tio n of the Assisted Suicide Funding Restriction Act of 1997, 42 U.S.C. § 14401, et s e q . See Am. Compl. ¶¶ 95-107. This Act, however, does not create a private right of a c tio n , and thus cannot provide the basis for jurisdiction. If Congress intends to create a private cause of action under a federal statute, then f e d era l courts should find a private cause of action under the given statute. Transamerica M o rtg a g e Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979). Congress' intent is d e te rm in e d by examining "the language or structure of a statute or the circumstances of its enactment." Id. "[W]hether a statute creates a cause of action, either expressly or by im p lic a tio n , is basically a matter of statutory construction." Id. If the language of the sta tu te expressly gives a remedy then courts should be wary when they are requested to a d d an additional remedy that is not expressly provided for in the statute. Id. T h e structure and language of this Act do not show any intent by Congress to e sta b lis h a private cause of action. The purpose of the Act is "to continue current federal

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p o lic y by providing explicitly that federal funds may not be used to pay for items and s e rv ic e s (including assistance) the purpose of which is to cause (or assist in causing) the su icid e, euthanasia, or mercy killing of any individual." 42 U.S.C. § 14401(b). Mr. S c h n e ller claims that jurisdiction is proper under this Act because many of the defendants a p p lie d funds appropriated by Congress for the purpose of paying for the provision of h e a lth care services, federal funds under certain grant programs including Medicare and M e d ic a id , and federal advocacy grants, to pay for, provide and contribute to payment or c o v e ra g e , for health care items and service furnished for the purpose of causing, and for th e purpose of assisting in causing, the death of Marjorie C. Schneller, by euthanasia, m e rc y killing and assisted suicide. See Am. Compl. ¶ 16. Mr. Schneller's assertion is c o n tra ry to law. The rationale for the enactment of this statute is to prevent federal funds from b e in g used for the criminal and unlawful purpose of assisted suicide. See 42 U.S.C.A. § 1 4 4 0 1 (a)(2). There have never been any criminal charges in connection with the care a n d treatment of Marjorie Schneller, and the claims that the defendants engaged in some typ e of mercy killing are unfounded. Further, no court has found that Title 42 U.S.C. § 1 4 4 0 1 , et seq., creates a private cause of action. Thus, because the Assisted Suicide F u n d in g Restriction Act cannot form the basis of subject matter jurisdiction, I will d is m is s Count IA. The next four counts in the amended complaint allege the deprivation of civil

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rig h ts pursuant to 42 U.S.C. § 1983 and related statutes. Because they contemplate a p riv a te cause of action, these statutes provide subject matter jurisdiction to the court. Counts 1B, 1C, 1D, and IE set forth the plaintiff's civil rights claims against the d e f e n d a n ts for alleged violations of his mother's rights guaranteed by the Fourteenth A m e n d m e n t to the United States Constitution. Count 1B contains allegations that the d e f e n d a n ts, under color of state law, deprived Mrs. Schneller of life, liberty, and property b y enforcing her advanced health care directive over Mr. Schneller's objection and c a u sin g her death. See Am. Compl. ¶¶ 213-230. Count 1C claims that the defendants c o n sp ire d with malice to deprive Mrs. Schneller "of her basic rights to eat, drink, and b re a th e ," and her "rights to life, safety, freedom of speech, freedom to write and c o m m u n ica te, privacy, family interaction, rights to legal representation, and general wellb e in g ." See Am. Compl. ¶¶ 231-248. Count 1D alleges that the defendants "conspired f o r the purpose of impeding, hindering, obstructing, and defeating the due course of ju s tic e enjoyed by citizens, with the intent to deny plaintiffs the equal protection of the la w s ," and that these acts constituted causes of action for intimidation, confusion, d iv e rs io n , threat, and obstruction of justice, as well as criminal assault and criminal m a im in g . See Am. Compl. ¶¶ 249-263. Finally, Count IE alleges that the defendants, " h a v in g knowledge that any and all of the wrongs conspired to be done, as enumerated in th is complaint, were about to be committed, and having power to prevent or aid in p re v e n tin g the commission of the same, neglected or refused so to do." See Am. Compl.

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¶ ¶ 264-272. The Fourteenth Amendment to the U.S. Constitution provides that "no State s h a ll... d e p riv e any person of life, liberty, or property, without due process of law..." U.S. C o n st., Amend. 14, §1. The protections of the Fourteenth Amendment do not extend to p riv a te conduct abridging individual rights, no matter how unfair that conduct may be. N a tio n a l Collegiate Ath. Ass'n v. Tarkanian, 488 U.S. 179 (1988). It is the duty of this c o u rt to ensure that the Fourteenth Amendment is invoked only when it can be said that th e State is responsible for the specific conduct of which the plaintiff complains. Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001); E d m o n s o n v. Leesville Concrete Co., 500 U.S. 614, 632 (1991); Blum v. Yaretsky, 457 U .S . 991 (1982). If a defendant's conduct satisfies the state-action requirement of the F o u r te e n th Amendment, the conduct also constitutes action "under color of state law" for S e c tio n 1983 purposes. Brentwood Acad., 531 U.S. at 295 (citing Lugar v. Edmondson O il Co., 457 U.S. 922 (1982)). Title 42 U.S.C. §1983 authorizes redress for violations of constitutional rights and p ro v id e s, in pertinent part, that: E v e ry person who, under color of any statute, ordinance, re g u la tio n , custom, or usage, of any State or Territory, s u b je c ts , or causes to be subjected, any citizen of the United S ta te s or other person within the jurisdiction thereof to the d e p riv a tio n of any rights, privileges, or immunities secured by th e Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding f o r redress. 11

4 2 U.S.C. §1983. By its terms, Section 1983 does not create a substantive right; it merely p ro v id e s a method for vindicating federal rights conferred by the United States C o n s titu tio n and the federal statutes that it describes. Baker v McCollan, 43 U.S. 137 (1 9 7 9 ). In order to establish a claim under Section 1983, a plaintiff must demonstrate (1) a violation of a right secured by the Constitution and the laws of the United States and th a t (2) the alleged deprivation was committed by a person acting under color of state la w . American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). Here, Mr. Schneller fails to satisfy these requirements where the nonC o m m o n w e a lth defendants are concerned. Although a private party may cause a d e p riv a tio n of a constitutional right, it is subjected to liability under Section 1983 only w h e n it does so under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1 9 7 8 ). Section 1983 excludes from its reach "merely private conduct," no matter how d is c rim in a to ry or wrongful. American Mfrs. Mut. Ins. Co., 526 U.S. at 50. Mr. Schneller b a ld ly asserts that these non-Commonwealth defendants were acting under color of law or w e re state actors. The actions alleged here, however, were not performed under color of s ta te law, and the defendants are not and cannot be considered state actors. The traditional exclusive governmental function test requires that a private entity e x e rc is e powers traditionally and exclusively reserved to the State, such as holding an e le c tio n or eminent domain. Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). The provision of hospital services is not a traditional public function exclusively reserved

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f o r the State. Shannon v. Shannon, 965 F.2d 542, 547 (7th Cir. 1992) (hospital care is not a n exclusive prerogative of the State). When analyzing the exclusive government function test, the Supreme Court has h e ld that the receipt of public funds and the performance of a function serving the public, a lo n e , are not enough to make a private entity a state actor. Rendell-Baker v. Kohn, 457 U .S . 830, 840 (1982); Black, et al. v. Indiana School District, 985 F.2d 707, 710-11 (3d C ir. 1993) (a school bus driver is not performing an exclusive government function, even th o u g h paid by the state and performing a service for the public). The fact that hospitals a n d nursing homes may be extensively regulated and may receive financial support from th e government through Medicaid and Medicare does not make them state actors. Blum, 4 5 7 U.S. at 1011. In Blum, the Supreme Court flatly rejected the argument that the S ta te 's payment of more than 90% of nursing home patients' medical expenses and the lic e n sin g of nursing homes does not create a symbiotic relationship between the state and n u rs in g homes. Additionally, the vast majority of Courts of Appeals have determined that th e recipient of federal construction funding, Medicare and Medicaid funds, and the e x iste n c e of tax exemption, as well as state licensing requirements for non-profit h o sp itals, do not constitute state action under 42 U.S.C. § 1983. See Hodge v. Paoli M e m o ria l Hospital, 576 F.2d 563 (3d Cir. 1978) (citing Schlein v. Milford Hospital, Inc., 5 6 1 F.2d 427 (2d Cir. 1977); Greco v. Orange Memorial Hospital Corporation, 513 F.2d 8 7 3 (5th Cir.), cert. denied, 423 U.S. 1000 (1975); Jackson v. Norton-Children's

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H o s p ita ls , Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000 (1974); Doe v. B e llin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Briscoe v. Bock, 540 F.2d 392 (8 th Cir. 1976); Watkins v. Mercy Medical Center, 520 F.2d 894 (9th Cir. 1975); Ward v. S t. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973)). Accordingly, the receipt of federal funding is not determinative of state action. Private entities are not transformed into state actors by the simple provision of funds. Because Mr. Schneller cannot establish state action, he cannot establish a cause of action u n d e r 42 U.S.C. § 1983 or related statutes, which provide a necessary conduit through w h i c h the plaintiff might recover for alleged federal rights violations perpetrated against h im . Accordingly, I will dismiss the non-Commonwealth defendants from Counts 1B, 1 C , 1D, and 1E. B. Commonwealth Defendants ­ Federal Claims M r. Schneller also seeks damages and equitable relief under § 1983 against the P e n n s ylv a n ia Department of Aging, and the Pennsylvania Department of Health, Division o f Nursing Care Facilities ­ Norristown Field Office. These departments are executive a g e n cie s of the Commonwealth of Pennsylvania. See 71 P.S. §§ 11, 61, 531-551 (H e a lth ); and 71 P.S. §§ 581-1 through 581-12 (Aging). These defendants have filed a m o tio n to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure,

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a rg u in g that the Eleventh Amendment6 provides them immunity, and thus bars federal ju ris d ic tio n . See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d C ir.1 9 9 6 ) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984) (E le v e n th Amendment is a jurisdictional bar which deprives federal courts of subject m atter jurisdiction)). It is well-established that, absent consent by the State, the Eleventh Amendment b a rs suits in federal court by private parties for money damages against states, state a g e n cie s and state officials in their official capacities. Idaho v. Coeur d'Alene Tribe of Ida h o , 521 U.S. 261 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); P u erto Rico Aqueduct and Sewer Authority v. Metcalf and Eddy, 506 U.S. 139 (1993); K e n tu c k y v. Graham, 473 U.S. 159, 169 (1985) (state officials sued in their official c a p ac itie s are immunized from federal suit); Melo v. Hafer, 912 F.2d 628, 642 (3d C ir.1 9 9 0 ). The Amendment's bar extends to suits, as here, against departments or a g e n cie s of the state having no existence apart from the state. Laskaris v. Thornburgh, 6 6 1 F. 2d 23, 25 (3d Cir. 1981)(citing Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 2 7 4 , 280 (1977)). The Eleventh Amendment also applies where the plaintiff seeks equitable relief. S em ino le Tribe of Florida, 517 U.S. at 58; Cory v. White, 457 U.S. 85, 90-91 (1982);

The Eleventh Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." 15

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A la b a m a v. Pugh, 438 U.S. 781, 782 (1978) (Eleventh Amendment bars suit for in ju n c tiv e relief against State and its agencies absent State's consent). A state may c o n se n t to be sued in federal court, but the waiver must "unequivocally expressed." Pennhurst, 465 U.S. at 99. Pennsylvania has expressly withheld consent. 42 Pa.C.S. § 8 5 2 1 (b ); 1 Pa.C.S. § 2310. See Laskaris, 661 F. 2d at 25. Neither supplemental jurisdiction nor any other basis of jurisdiction overrides the E le v e n th Amendment. Pennhurst, 465 U.S. at 121. Furthermore, Section 1983 does not o v e rr id e the Amendment. Quern v. Jordan, 440 U.S. 332, 341-42 (1979). Accordingly, I w ill dismiss Counts 1B, 1C, 1D, and 1E in their entirety. C. Untimeliness of Federal Claims I also note that if these federal claims were properly before me, they would still f a il as untimely. Although Rule 12(b) does not explicitly permit the assertion of a statute o f limitations defense by a motion to dismiss, the so-called "Third Circuit Rule" allows a d e f e n d a n t to assert a limitations defense in a Rule 12(b)(6) motion "if `the time alleged in th e statement of a claim shows that the cause of action has not been brought within the statu te of limitations.'" Zankel v. Temple University, 245 Fed. Appx. 196, 198 (3d Cir. 2 0 0 7 ) (citing Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)). Because these f e d e ra l statutes do not set forth a specific statute of limitations, the claims are subject to P e n n s ylv a n ia ' s two-year statute of limitations. City of Rancho Palos Verdes v. Abrams, 5 4 4 U.S. 113, 124 (2005) (where a plaintiff relies upon federal statutes in asserting a

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c laim , and those statutes do not contain a specific provision regarding the time within w h ic h an action may be brought, federal courts apply the statute of limitations governing s u its for personal injury in which the action arises); Wilson v. Garcia, 471 U.S. 265, 275 (1 9 8 5 ); see also Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000) (actions arising under S e c tio n s 1983 and 1985 are subject to the statute of limitations prescribed for personalin ju ry actions in the state in which the relevant events occurred). Pennsylvania's personal in ju ry statute of limitations is two years. Vojtasek v. Diocese of Allentown, 916 A.2d 6 3 7 , 640 (Pa. Super. 2006); 42 Pa.C.S.A. § 5524(2). The death of Marjorie Schneller is a d is c re e t and identifiable event, and the statute of limitations on any claims arising from h e r death or any of the alleged events that precipitated her death, began to arise on March 3 1 , 2002. With the filing of the motion to proceed in forma pauperis, this action was c o m m e n c e d on April 10, 2006, over four years after the death, and is thus untimely. Accordingly, Mr. Schneller's federal claims would be time-barred if they were properly b e f o re me. D. State Law Claims M r. Schneller claims that the court has supplemental jurisdiction over his re m a in in g state law claims pursuant to 28 U.S.C. § 1367(a), which provides: [I]n any civil action of which the district courts have original ju ris d ic tio n , the district courts shall have supplemental ju ris d ic tio n over all other claims that are so related to claims in the action within such original jurisdiction that they form p a rt of the same case or controversy under Article III of the U n ite d States Constitution. Such supplemental jurisdiction 17

s h a ll include claims that involve the joinder or intervention of a d d itio n a l parties. The state law claims in this amended complaint substantially predominate over the f e d era l claims. See 28 U.S.C. § 1367(c)(2). The federal claims in the amended complaint w ill be dismissed. 28 U.S.C. § 1367(c)(3). Accordingly, I decline to exercise s u p p le m e n ta l jurisdiction over the state law claims in this case. I note, however, that if the state law claims were properly before me, they would still be dismissed as untimely. The plaintiff and eleven of the thirteen defendants are re sid e n ts of Pennsylvania, and all relevant events in this case arose in Pennsylvania. It is w e ll-e sta b lis h e d that a federal court shall apply Pennsylvania substantive law and federal p ro c e d u ra l rules to the resolution of state law claims. See Erie Railroad Company v. T o m k in s , 304 U.S. 64 (1938)). Accordingly, Pennsylvania law governs the disposition of th e plaintiff's state law claims. In Pennsylvania, the applicable two-year statute of lim ita tio n s for tort claims provides that: The following actions and proceedings must be c o m m e n c e d within two years: (1 ) An action for assault, battery, false imprisonment, false arrest, m a lic io u s prosecution or malicious abuse of process. An action to recover damages for injuries to the person or for the d e a th of an individual caused by the wrongful act or neglect or u n la w f u l violence or negligence of another. An action for taking, detaining or injuring personal property, in c lu d in g actions for specific recovery thereof. . . . Any other action or proceeding to recover damages for injury to 18

(2 )

(3)

(7 )

person or property which is founded on negligent, intentional, or o th e rw is e tortious conduct or any other action or proceeding s o u n d in g in trespass, including deceit or fraud, except an action or p ro c e e d in g subject to another limitation specified in this subchapter. Title 42 Pa. C.S.A. § 5524. Thus, under § 5524(2), because the case was filed over four ye a rs after Mrs. Schneller's death, the plaintiff's state law tort claims arising from her d e a th or the care she received in the months preceding her death would also be timeb a rr e d . Likewise, all contract claims in this amended complaint would also be untimely b e c au s e under Pennsylvania law, an action for breach of contract is subject to a four-year s ta tu te of limitations. 42 Pa.C.S.A. § 5525. Mrs. Schneller died on March 31, 2002, and th e case was filed over four years later. Thus, the plaintiff's state law contract claims a ris in g from the death of his mother or the care she received would also be time-barred. In conclusion, while the plaintiff attempts to bring federal claims in combination w ith his predominant state law claims, the federal claims will be dismissed for the reasons s e t forth in this memorandum. Finally, I decline to exercise supplemental jurisdiction o v e r the state law claims, all of which are untimely. An appropriate Order follows.

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