RUSSELL v. HAHMANAM HOSPITAL et al

Filing 4

MEMORANDUM OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 3/12/18. 3/12/18 ENTERED AND COPIES MAILED TO PRO SE.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES RUSSELL,
Plaintiff,
v.
HAHMANAM HOSPITAL and DR. JOHN
TRAS,
Defendants.

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CIVIL ACTION NO. 18-364

MEMORANDUM OPINION
Smith, J.

March 12, 2018

The pro se prisoner plaintiff has brought this action against the defendants for their
alleged malpractice in inserting three pins into his right hand, apparently failing to perform the
procedure properly by not adequately securing the pins, and then failing to timely remove the
pins. Despite the plaintiff using a form complaint for prisoners asserting actions under 42 U.S.C.
§ 1983, he has not included any plausible allegations for any violations of his constitutional
rights or violations of any federal statutes. In addition, the allegations do not plausibly support a
claim that the defendants acted under color of state law. As such, the plaintiff has failed to state
a plausible claim for relief under section 1983.
In addition, to the extent that the plaintiff is asserting a malpractice claim under
Pennsylvania law, he has not included sufficient allegations about the parties’ citizenship so that
the court can discern whether the court has subject-matter jurisdiction over such a claim under 28
U.S.C. § 1332(a). In particular, the plaintiff has not included any allegations regarding the
defendants’ citizenship (other than that the named doctor defendant worked at the defendant
hospital’s location in Philadelphia) or allegations about his own citizenship outside of the place
of his current incarceration.

Accordingly, the court will dismiss the complaint without prejudice to the plaintiff to
either (1) refile the action in state court, or (2) file an amended complaint within 30 days which
includes the necessary allegations about the parties’ citizenship so the court can determine
whether subject-matter jurisdiction exists in this action.
I.

ALLEGATIONS AND PROCEDURAL HISTORY

The pro se plaintiff, James Russell (“Russell”), filed an application to proceed in forma
pauperis (the “IFP Application”) and a proposed complaint against the defendants, Hahnemann
Hospital (misspelled as “Hahmanam Hospital” and “Hahman Hospital” in the complaint) and Dr.
John Tras, on January 25, 2018. 1 Doc. No. 1. Unfortunately, Russell failed to file a certified
copy of his prisoner account statement for the six-month period prior to the filing of this civil
action on January 25, 2018, as required by 28 U.S.C. § 1915(a). As such, the court entered an
order on February 1, 2018, which, inter alia, (1) denied the IFP Application without prejudice,
and (2) required Russell, within thirty (30) days of the date of the order, to either (a) remit the
$350.00 filing fee and $50.00 administrative fee to the clerk of court, or (b) file a certified copy
of his prisoner account statement showing all deposits, withdrawals, and a current balance, from
any correctional facility in which he was confined for the six-month period from July 25, 2017,
through January 25, 2018. See Order at 1-3, Doc. No. 2.

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The federal “prisoner mailbox rule” provides that a pro se prisoner’s petition is deemed filed “at the time petitioner
delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 275-76
(1988). Although the doctrine arose in the context of habeas corpus petitions, the Third Circuit has extended it to
civil actions brought under 42 U.S.C. § 1983. See Pearson v. Secretary Dep’t of Corr., 775 F.3d 598, 600 n.2 (3d
Cir. 2015) (applying rule in section 1983 action and determining that pro se prisoner plaintiff filed complaint on date
he signed it). Here, the plaintiff included a declaration with the complaint in which he states that he provided the
complaint to prison authorities on January 25, 2018, for mailing to the clerk of court. See Complaint at ECF p. 8,
Doc. No. 1-1.
Regarding the name of the hospital defendant, the court has interpreted the misspelled name as Hahnemann
Hospital not only because the names are similar (and it appears Russell attempted to spell it phonetically) but
because the address referenced in the complaint, 230 North Broad Street in Philadelphia, is listed as part of
Hahnemann Hospital. See https://www.hahnemannhospital.com/SitePages/Our-Locations.aspx (identifying hospital
location at 230 North Board Street, Philadelphia, PA 19102) (last visited March 11, 2018).

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Russell timely filed his prisoner trust fund account statement covering the period from
July 1, 2017, to February 14, 2018. See Doc. No. 3. Thus, Russell has complied with the court’s
February 1, 2018 order.
In the complaint, Russell alleges that on February 10, 2017, he had three pins placed in
his right hand while he was at Hahnemann Hospital. See Compl. at ECF pp. 2-3, Doc. No. 1-1.
He went for a follow-up appointment on February 21, 2017, and his stitches were removed on
March 7, 2017. Id. at ECF p. 3. At that time, someone told him that the “pins [were] going to be
remove[d] in a couple weeks.” Id.
On the date that Russell was supposed to get the pins removed, he received a call
informing him that the surgeon was unavailable. Id. Subsequent to this call, Russell was
arrested and one of the pins popped out of his hand while he was incarcerated in the CurranFromhold Correctional Facility. Id. Thereafter, Russell had an open wound for three weeks and
he had to use “county soap” to keep it clean. Id. It appears that once the wound closed, Russell
received medication. Id. Russell is seeking $500,000 for “malpractice.” Id.
II.
A.

DISCUSSION
The IFP Application

Regarding applications to proceed in forma pauperis,
any court of the United States may authorize the commencement, prosecution or
defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.
28 U.S.C. § 1915(a)(1). This statute
“is designed to ensure that indigent litigants have meaningful access to the federal
courts.” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989). Specifically, Congress enacted the statute to ensure that administrative
court costs and filing fees, both of which must be paid by everyone else who files
a lawsuit, would not prevent indigent persons from pursuing meaningful
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litigation. Deutsch[ v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995)]. Toward
this end, § 1915(a) allows a litigant to commence a civil or criminal action in
federal court in forma pauperis by filing in good faith an affidavit stating, among
other things, that he is unable to pay the costs of the lawsuit. Neitzke, 490 U.S. at
324, 109 S.Ct. 1827.
Douris v. Middletown Twp., 293 F. App’x 130, 131-32 (3d Cir. 2008) (per curiam) (alteration to
original) (footnote omitted).
The litigant seeking to proceed in forma pauperis must establish that he or she is unable
to pay the costs of suit. See Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir.
1989) (“Section 1915 provides that, in order for a court to grant in forma pauperis status, the
litigant seeking such status must establish that he is unable to pay the costs of his suit.”). “In this
Circuit, leave to proceed in forma pauperis is based on a showing of indigence. [The court must]
review the affiant’s financial statement, and, if convinced that he or she is unable to pay the court
costs and filing fees, the court will grant leave to proceed in forma pauperis.” Deutsch, 67 F.3d
at 1084 n.5 (alteration to original) (internal citations omitted).
Here, after reviewing the IFP Application and prison trust account statement, it appears
that Russell is unable to pay the costs of suit. Therefore, the court will grant Russell leave to
proceed in forma pauperis. The court also notes that since Russell is a prisoner subject to the
Prison Litigation Reform Act, he will be obligated to pay the filing fee in installments pursuant
to 28 U.S.C. § 1915(b), even if the court ultimately dismisses this action.
B.

Review of the Complaint Under 28 U.S.C. § 1915(e)(2)(B) and Sua Sponte Review
for Subject-Matter Jurisdiction
Because the court has granted Russell leave to proceed in forma pauperis, the court must

engage in the second part of the two-part analysis and examine whether the complaint is
frivolous, fails to state a claim upon which relief can be granted, or asserts a claim against a
defendant immune from monetary relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) (providing that
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“[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that-- . . . (B) the action or appeal-- (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.”). A complaint is frivolous
under section 1915(e)(2)(B)(i) if it “lacks an arguable basis either in law or fact,” Neitzke v.
Williams, 490 U.S. 319, 325 (1989), and is legally baseless if it is “based on an indisputably
meritless legal theory.” Deutsch, 67 F.3d at 1085.
Concerning the analysis under section 1915(e)(2)(B)(ii), the standard for dismissing a
complaint for failure to state a claim pursuant to this subsection is identical to the legal standard
used when ruling on motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Rule 12(b)(6) standard to
dismissal for failure to state a claim under § 1915(e)(2)(B)). Thus, to survive dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff’s factual allegations “must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 556 (citation omitted).
In addressing whether a pro se plaintiff’s complaint is frivolous or fails to state a claim, the court
must liberally construe the allegations in the complaint. See Higgs v. Att’y Gen., 655 F.3d 333,
339-40 (3d Cir. 2011) (explaining that “when presented with a pro se litigant, we have a special
obligation to construe his complaint liberally” (citation and internal quotation marks omitted)).
In addition, the court has the authority to examine the court’s subject-matter jurisdiction
sua sponte. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”); Group Against Smog and
Pollution, Inc. v. Shenango, Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (explaining that “an
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objection to subject matter jurisdiction may be raised at any time [and] a court may raise
jurisdictional issues sua sponte”). As a plaintiff commencing an action in federal court, Russell
bears the burden of establishing federal jurisdiction. See Lincoln Ben. Life Co. v. AEI Life, LLC,
800 F.3d 99, 105 (3d Cir. 2015) (“The burden of establishing federal jurisdiction rests with the
party asserting its existence.” (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3
(2006))).
Here, Russell used this court’s form complaint for prisoners filing civil rights actions
under 42 U.S.C. § 1983. See Compl. at 1. Despite using this form, Russell has not expressly
included allegations that would indicate that he is pursuing a claim for any violations of his
constitutional rights or for violations of any federal statute. In this regard,
[t]o succeed in a claim under § 1983, a plaintiff must show a deprivation of a right
secured by the Constitution and laws of the United States, and he must show that
the deprivation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 47, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The color-ofstate-law requirement is a threshold issue; “there is no liability under § 1983 for
those not acting under color of law.” Groman v. Township of Manalapan, 47 F.3d
628, 638 (3d Cir. 1995). To show that the defendant acted under color of state
law, a litigant must establish that the defendant is a “state actor” under the
Fourteenth Amendment. Benn v. Universal Health System, Inc., 371 F.3d 165,
169 n. 1 (3d Cir. 2004).
Bailey v. Harleysville Nat’l Bank & Trust, 188 F. App’x 66, 67 (3d Cir. 2006) (per curiam).
The “touchstone” of the state-action inquiry centers on the proposition that “state action
may be found if, though only if, there is such a close nexus between the [s]tate and the
challenged action that seemingly private behavior may be fairly treated as that of the [s]tate
itself.” P.R.B.A. Corp. v. HMS Host Toll Rds., Inc., 808 F.3d 221, 224 (3d Cir. 2015) (alterations
in original) (internal quotation marks and citations omitted). The Third Circuit has
outlined three broad tests generated by Supreme Court jurisprudence to determine
whether state action exists:

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(1) whether the private entity has exercised powers that are traditionally the
exclusive prerogative of the state; (2) whether the private party has acted with the
help of or in concert with state officials; and (3) whether the [s]tate has so far
insinuated itself into a position of interdependence with the acting party that it
must be recognized as a joint participant in the challenged activity.
Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (alteration in original) (internal quotation marks
and citation omitted).
In the complaint, there are no allegations that would support a cause of action under
section 1983. Russell has not identified any federal statute or constitutional right that the
defendants purportedly violated, and the court cannot discern any such violation from the
allegations in the complaint. Additionally, there are no allegations plausibly supporting a finding
that the defendants were state actors acting under color of state law.
In this regard, the court recognizes that medical providers could be considered to be state
actors if they have contracted with a corrections department or a corporate prison health care
provider. See, e.g., Talbert v. Kaplan, No. 12-cv-6533, 2013 WL 4434214, at *4 (E.D. Pa. Aug.
20, 2013) (concluding that defendant doctor was not a state actor because, inter alia, “[t]here is
no allegation in the complaint that Dr. Kaplan was employed by or under contract with either the
Philadelphia Department of Corrections or Corizon Medical, the corporate prison health care
provider.”). Here, however, it appears that Russell was not incarcerated when he had the pins
placed in his hand and when he was informed that the surgeon was unavailable to remove them.
See Compl. at ECF p. 3. The complaint suggests that Russell was incarcerated after those events
occurred. Id. Under these circumstances, Russell has failed to plausibly suggest that the named
defendants “‘exercised power possessed by virtue of state law and made possible only because
[they were] clothed with the authority of state law.’” Harvey v. Plains Twp. Police Dep’t, 635
F.3d 606, 609 (3d Cir. 2011) (describing “under color of state law” requirement in section 1983
actions (quoting Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998)). Accordingly, the court
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will dismiss any federal claims Russell is possibly asserting for the failure to state a claim under
28 U.S.C. § 1915(e)(2)(B)(ii).
The only logical basis for a lawsuit against the defendants would be, as seemingly
asserted by Russell in the complaint, a claim for malpractice. Thus, the only manner in which
this court could potentially exercise subject-matter jurisdiction over this action would be under
the diversity jurisdiction statute, 28 U.S.C. § 1332(a), which grants a district court jurisdiction
over “all civil actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of different States.” Id. Although this
appears to be the only basis for this court’s jurisdiction over this matter, it does not appear that
the court would possess diversity jurisdiction over this action because it appears likely that the
parties are not completely diverse. 2
Section 1332(a) requires “‘complete diversity between all plaintiffs and all defendants,’
even though only minimal diversity is constitutionally required. This means that, unless there is
some other basis for jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any
defendant.’” Lincoln Ben. Life Co. 800 F.3d at 104 (quoting Lincoln Prop. Co. v. Roche, 546
U.S. 81, 89 (2005) and Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010)
(internal footnotes omitted)). An individual is a citizen of a state in which the individual is
domiciled, meaning the state where the individual is physically present and intends to remain.
See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006) (“Citizenship is
synonymous with domicile, and ‘the domicile of an individual is his true, fixed and permanent
home and place of habitation. It is the place to which, whenever he is absent, he has the
intention of returning.’” (quoting Vlandis v. Kline, 412 U.S. 441, 454 (1973)).

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Russell seeks $500,000 in damages. While this amount might be unrealistic, if he can prove a malpractice claim
against the defendants, he could seemingly exceed the jurisdictional threshold of $75,000.

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As a current prisoner, Russell’s domicile “before his imprisonment presumptively
remains his domicile during his imprisonment. That presumption, however, may be rebutted by
showing a bona fide intent to remain in the state of incarceration on release.” Pierro v. Kugel,
386 F. App’x 308, 309 (3d Cir. 2010) (per curiam) (citations omitted). Although Russell alleges
that he is currently incarcerated at the Philadelphia Industrial Correctional Complex, he does not
include any allegations about where he was domiciled prior to his incarceration.
In addition, the complaint is devoid of information regarding Hahnemann Hospital’s
business form, i.e. whether it is a non-profit corporation or another type of business organization,
which is necessary for determining its citizenship. See, e.g., 28 U.S.C. § 1332(c)(1) (indicating
that a corporation is a citizen of the state in which it is incorporated as well as the state where it
has its principal place of business); Lincoln Ben. Life Co., 800 F.3d at 107 (concluding that
plaintiff may allege that an unincorporated association is not a citizen of plaintiff’s state of
citizenship if plaintiff has conducted a reasonable investigation into the matter); Zambelli
Fireworks Mfg. Co., 592 F.3d at 420 (“[T]he citizenship of partnerships and other
unincorporated associations is determined by the citizenship of its partners or members.”).
Russell has also failed to provide any information regarding Dr. Tras’s domicile. 3 Thus, at this
point, the court cannot discern whether diversity jurisdiction exists and the court must dismiss
the complaint.
C.

Leave to Amend

The court recognizes that “a court should ordinarily allow a plaintiff to amend his
complaint to properly allege the parties’ citizenship, unless amendment would be inequitable or

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The address identified as Dr. Tras’s address in the complaint is also the address for the hospital. The court also
notes that despite lacking the pertinent information about the defendants’ citizenship, it is possible that Russell and
at least once of the defendants are domiciled in Pennsylvania. If so, diversity jurisdiction would not exist, as “no
plaintiff [may] be a citizen of the same state as any defendant.” Lincoln Ben. Life Co., 800 F.3d at 104 (quotation
omitted).

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futile.” Pierro, 386 F. App’x at 310 (citing 28 U.S.C. § 1653 and In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)). As such, the court will grant leave to Russell to
amend the complaint to properly allege the parties’ citizenship.
III.

CONCLUSION

As it appears that Russell has failed to state a plausible claim for relief under 42 U.S.C. §
1983 and has failed to include the necessary allegations so the court can discern whether the
court has subject-matter jurisdiction over this action, the court will dismiss the complaint without
prejudice to him refiling this action in state court or filing an amended complaint in this action
within thirty days of the date of this order in the event he can state a claim within this court’s
jurisdiction. Any amended complaint must identify all defendants in the caption and clearly state
the basis for Russell’s claims against each defendant. In addition, Russell must include the
necessary allegations concerning the parties’ citizenship as explained in this memorandum
opinion.
The court will enter a separate order.

BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

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