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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