SHEPTIN v. CARDIONET

Filing 2

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 7/26/2012. 7/27/2012 ENTERED AND COPIES MAILED TO PRO SE.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION

LOUIS C. SHEPTIN
v.

NO. 12-4129

CARDIONET
MEMORANDUM

JULY

DUBOIS, J.
Plaintiff Louis C. Sheptin filed this

a, ,

2012

se civil action

against Cardionet, Inc.,l based on his assertion that Cardionet
sent him a defective heart monitor.
pauperis.

He seeks to proceed in forma

For the following reasons, the Court will grant

plaintiff leave to proceed in forma pauperis and dismiss his
Complaint without prejudice to his filing an amended complaint.

I.

FACTS
Plaintiff suffers from coronary disease and other ailments.

On June 12, 2012, Cardionet sent plaintiff a heart monitor with a
notice informing him that he would be charged $1,000.00 if he
failed to return the monitor.

It appears from attachments to the

Complaint that plaintiff received the monitor in connection with
a study in which he was participating.

According to the

Complaint, the monitor was defective because it "alarmed when it
was not even attached to plaintiff's chest," but Cardionet
(Compl. ~ III.C.)

refused to replace or repair it.

Plaintiff

claims that he suffered emotional distress as a result of the

IThe defendant is identified as "Cardionet" in the caption

of the Complaint and as "Cardionet, Inc." on the second page of

the Complaint.

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defective monitor and suggests that the monitor was responsible
for the fact that he underwent angioplasty on June 28, 2012, and
had a stroke on July 3, 2012.

He further claims that Cardionet's

notice discriminated against him, and that "there are concerns
about the legitimacy of this firm [Cardionet] and false claims
[i. e., Medicaid fraud] . /I

(Id. ~ IV.)

Based on those allegations, the Complaint purports to assert
federal claims pursuant to 42 U.S.C.
Act, as well as state law claims.

§

1983 and the False Claims

Among other things, plaintiff

seeks $1 million in compensatory damages and punitive damages.
II.

ST.ANDARD OF REVIEW

The Court grants plaintiff leave to proceed in forma
pauperis because he has satisfied the requirements set out in 28
U.S.C.

§

1915.

Accordingly, 28 U.S.C.

§

1915(e) (2) (B) applies.

That provision requires the Court to dismiss the Complaint if it
is frivolous or malicious, fails to state a claim, or seeks
monetary relief from a defendant who is immune.
complaint fails to state a claim under

§

Whether a

1915(e) is governed by

the same standard applicable to motions to dismiss under Federal
Rule of Civil Procedure 12{b) (6), see Tourscher v. McCullough,
184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains "sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face./I
(2009)

Ashcroft v. Igbal, 556 U.S. 662, 678

(quotations omitted).

Furthermore,

"[i]f the court

determines at any time that it lacks subject-matter jurisdiction,
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the court must dismiss the action.

II

Fed. R. Civ. P. 12 (h) (3) .

III. DISCUSSION

The Court will dismiss plaintiff's

§

1983 claims as well as

his claim under the False Claims Act (FCA).

"[A] suit under §

1983 requires the wrongdoers to have violated federal rights of
the plaintiff, and that they did so while acting under color of
state law."

See Groman v.Twp. of Manalapan, 47 F.3d 628, 638

(3d Cir. 1995).

Plaintiff has failed to state a claim under §

1983 because nothing in the Complaint suggests that he was
deprived of a federal right or that Cardionet acted under color
of state law.
1986)

See Johnson v. Orr, 780 F.2d 386, 390 (3d Cir.

(for purposes of showing that a defendant acted under color

of state law, there must be "a sufficiently close nexus between
the State and the challenged action,

II

or "a symbiotic

relationship between the actor and the state such that the
challenged action can fairly be attributed to the state")
(quotations omitted).

Additionally, the Court must dismiss

plaintiff's claim under the FCA because "a pro se relator [who is
not an attorney] cannot prosecute a ggi tam action on behalf of
the United States."

Stoner v. Santa Clara Cnty. Office of Educ.,

502 F.3d 1116, 1127 (9th Cir. 2007).

Furthermore, the Complaint

does not state a claim under any other federal laws, including
those prohibiting discrimination.
To the extent that plaintiff is bringing claims under state
law, there is no independent basis for jurisdiction over those
claims.

Diversity jurisdiction requires diversity of citizenship
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among the parties and that the amount in controversy exceed
$75,000.

See 28 U.S.C. § 1332(a).

For purposes of diversity

jurisdiction, a corporation is "a citizen of every State and
foreign state by which it has been incorporated and of the State
or foreign state where it has its principal place of business."
28 U.S.C.

§

1332(c) (1).

The Complaint asserts that plaintiff is

a citizen of California and that Cardionet, which is identified
as a corporation, maintains its principal place of business in
Pennsylvania.

However, the Complaint does not reflect

Cardionet's state of incorporation.

Accordingly, as it is not

clear whether complete diversity exists among the parties, the
Court may not exercise jurisdiction pursuant to

§

1332(a).

See

Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir.
2010)

("Complete diversity requires that[]

. . . no plaintiff be

a citizen of the same state as any defendant.") .
A district court should ordinarily allow a pro se plaintiff
to amend his complaint, unless amendment would be inequitable or
futile.

See Grayson v. Mayyiew State Hosp., 293 F.3d 103, 113-14

(3d Cir. 2002).

Accordingly, plaintiff will be given an

opportunity to file an amended complaint to the extent that he
can cure any of the deficiencies in his initial Complaint.
IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss
plaintiff's Complaint without prejudice to his filing an amended

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complaint.

An

appropriate order follows. 2

2As the Court has dismissed all of plaintiff's claims, he is

not entitled to counsel at this time. See Tabron v. Grace, 6

F.3d 147, 155 (3d Cir. 1993). Accordingly, the request for

counsel that is contained in his Complaint is denied without

prejudice to his filing a motion for counsel at a later time.

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