ROBINSON v. TEMPLE UNIVERSITY HEALTH SERVICES et al

Filing 40

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 4/24/12. 4/24/12 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID LEE ROBINSON
v.
TEMPLE UNIVERSITY
HEALTH SERVICES, et al.

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CIVIL ACTION

NO. 11-4667

MEMORANDUM OPINION
Savage, J.

April 23, 2012

Plaintiff David Lee Robinson brought this pro se action alleging that Temple
University Health Services, Temple University Physician, Inc., Temple Professional
Associates, Temple University Physicians and Temple University Hospital (collectively,
“defendants”) denied him proper medical care while he was a patient of Temple University
Hospital in August, 2004. Although he filed his action under 42 U.S.C. § 1983, the cause
of action stated in his complaint is for professional malpractice under state law.
The defendants have moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6). They argue that Robinson’s failure to file a certificate of merit from a
licenced physician, as required by Pennsylvania law in professional negligence actions, is
fatal to his claim. Before we reach the issue of whether the complaint survives the
defendants’ Rule 12(b)(6) motion, we must determine if we have subject matter jurisdiction.
After reviewing Robinson’s complaint, we conclude that there is no federal question
presented. In the absence of federal question jurisdiction, diversity jurisdiction is the only
basis for jurisdiction. Because the complaint does not allege that the parties are diverse,
we must dismiss the action for lack of jurisdiction.

Background
Robinson’s complaint, read liberally in light of his pro se status, alleges that he was
treated at Temple University Hospital on August 18, 2004, after he fell from the roof of a
three-story building. His injuries included fractures to his ankle and hip. His ankle was
placed in a cast. He remained at Temple University Hospital until his release on August
31, 2004.
About five-years later, medical staff at the United States Penitentiary-Canaan took
X-ray images of Robinson’s ankle. Those images revealed the presence of an os trigonum,
a condition characterized by the growth of an extra bone behind the ankle bone. Os
trigonum syndrome is commonly caused by an ankle injury. One of the symptoms is pain
while walking.1
Robinson filed his complaint on July 25, 2011, attaching medical records and
information describing his condition. He alleges that had hospital staff diagnosed and
properly treated his os trigonum in 2004, he would not now suffer pain and inflammation.
He complains that he can stand for only short periods and cannot engage in extended
physical activities. He contends that his physical condition, coupled with his status as a
convicted felon, will make it difficult for him to find employment. Consequently, he requests
monetary damages.
Robinson, using this district’s form Section 1983 civil rights complaint, impliedly
alleges that we have subject matter jurisdiction over this action based upon federal
question jurisdiction under 28 U.S.C. § 1331. He does not assert diversity jurisdiction

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These m edical descriptions com e from Robinson’s com plaint and attached exhibits.
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under 28 U.S.C. § 1332. Nevertheless, given his pro se status, we shall consider whether
there is diversity of citizenship.
Discussion
Federal courts are obliged to address subject matter jurisdiction sua sponte.
Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999), abrogated
on other grounds by Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005). If
the court lacks subject matter jurisdiction, it must dismiss the complaint because it lacks
the power to hear the case. Fed. R. Civ. P. 12(b)(1); Constitutional Guided Walking Tours,
LLC v. Independence Visitor Ctr. Corp., 804 F. Supp. 2d 320, 326 (E.D. Pa. 2011) (citing
Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
Therefore, though no party has raised the issue of subject matter jurisdiction, we must, as
a threshold matter, determine if the exercise of jurisdiction is proper before reaching the
merits of the dispute. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (holding that
federal courts “have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party”); accord Tristani ex
rel. Karnes v. Richman, 652 F.3d 360, 364 (3d Cir. 2011).
Federal Question Jurisdiction
By purporting to bring a § 1983 claim against the defendants, Robinson invokes
federal question jurisdiction under 28 U.S.C. § 1331. To state a § 1983 claim,2 a plaintiff
must allege facts, which if proven, would establish: (1) the deprivation of a right secured
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Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom ,
or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the
Constitution and laws, shall be liable to the party injured . . . .”

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by the Constitution or the laws of the United States; and (2) that the person depriving
plaintiff of the right acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted); Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (citation omitted).
To the extent that Robinson alleges a constitutional injury, his claim fails. Rather
than alleging a constitutional injury, Robinson asserts a medical malpractice claim that
sounds in negligence. Estelle v. Gamble, 429 U.S. 97, 106 and n. 14 (1976) (holding that
medical malpractice is not a cognizable constitutional violation); see also Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976) (“Neglect, carelessness
or malpractice is more properly the subject of a tort action in the state courts.”).
Though the allegations set forth in Robinson’s complaint may state a claim for
medical malpractice under state law, they do not rise to the level of a constitutional
violation remediable under § 1983. Therefore, we need not reach the issue of whether
Temple University Hospital acted under color of state law while treating Robinson.
Diversity Jurisdiction
In the absence of federal question jurisdiction, we consider whether there is subject
matter jurisdiction based on the diversity of the parties’ citizenship.
In order for a federal court to exercise diversity jurisdiction, the parties must be
“citizens of different States” at the time the complaint was filed. 28 U.S.C. § 1332(a)(1);
Grand Union Supermarkets of the Virgin Islands, Inc. v. H.E. Lockhart Mgmt., Inc., 316
F.3d 408, 410 (3d Cir. 2003) (citations omitted). The plaintiff bears the burden of pleading
the existence of jurisdiction. Washington v. Hovensa LLC, 652 F.3d 340, 345 (3d Cir.
2011). He must allege each party’s citizenship. Chemical Leaman Tank Lines, Inc. v.
Aetna Cas. & Sur. Co., 177 F.3d 210, 222 n.13 (3d Cir. 1999).
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Residency does not establish citizenship.

Emerald Inventors Trust v. Gaunt

Parsippany Partners, 492 F.3d 192, 207 n. 24 (3d Cir. 2007) (quoting Martinez v. Bynum,
461 U.S. 321, 338-39 (1983). Citizenship is determined by the party’s domicile, which is
the place the party intends to make his home. McCann v. Newman Irrevocable Trust, 458
F.3d 281, 286 (3d Cir. 2006) (quoting Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir.
1972)).
A prisoner’s domicile is presumed to be where he was domiciled prior to his
incarceration, not his place of imprisonment. Pierro v. Kugel, 386 F. App’x 308, 309 (3d
Cir. 2010). In order to overcome this presumption, a prisoner must show “a bona fide
intent to remain in the state of incarceration on release.” Id. (citations omitted). In other
words, a prisoner’s domicile does not change when he is incarcerated.
Robinson’s 2004 medical records reveal his address to be in Philadelphia,
Pennsylvania. He was an inmate at FCI-Fairton in New Jersey when he commenced this
action. His complaint does not allege his or the defendants’ states of citizenship. Hence,
his complaint does not allege diversity of citizenship.
Conclusion
Because we lack subject matter jurisdiction, we shall dismiss the complaint.3

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Robinson is not precluded from pursuing his action in the Pennsylvania state court. Notwithstanding
the statute of lim itations, Robinson m ay file an action in the Philadelphia Court of Com m on Pleas provided
he prom ptly files a certified transcript of the federal court’s judgm ent and pleadings filed in the case. See 42
Pa Cons. Stat. Ann. § 5103(b); Kelly v. Hazleton General Hosp., 837 A.2d 490, 493-94 (Pa. Super. 2003);
Cella v. Togum Constructeur Ensem bleier en Industrie Alimentaire, 173 F.3d 909, 912 (3d Cir. 1999)
(explaining that § 5103 “serves to toll the statute of lim itations only for those claim s that have been dism issed
by a federal court for lack of jurisdiction”).
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Mindful of his pro se status, we shall grant Robinson leave to file an amended complaint.4

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If Robinson files an am ended com plaint, the defendants m ay renew their m otion to dism iss for lack
of com pliance with Pa. R. Civ. P. 1042.3. They m ay do so by m erely incorporating the earlier action by
reference.
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