ROSE, JR. v. GUANOWSKY et al

Filing 6

MEMORANDUM. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 11/17/21. 11/17/21 ENTERED AND COPIES (NOT MAILED TO PRO SE PLAINTIFF AND UNREP DEFT.).(er, )

Case 5:21-cv-00875-JLS Document 6 Filed 11/17/21 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES E. ROSE, JR.,
Plaintiff,
v.
GLENN GUANOWSKY, ESQ.,
Defendant.

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CIVIL ACTION NO. 21-CV-0875

MEMORANDUM
SCHMEHL, J. /s/ JLS

NOVEMBER 17, 2021

This matter comes before the Court by way of a Complaint (ECF No. 2) submitted by pro
se Plaintiff James E. Rose, Jr., a regular, and prolific, litigant in this Court, against Glenn
Guanowsky, Esq., Deputy General Counsel for Litigation and Risk Management with the Lehigh
Valley Health Network (“LVHN”). Also before the Court is Rose’s Motion for Leave to
Proceed In Forma Pauperis (ECF No. 1). For the following reasons, the Court will grant Rose
leave to proceed in forma pauperis and dismiss his Complaint with prejudice for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
I.

FACTUAL ALLEGATIONS
Rose’s Complaint in this action is a ten-page, single-spaced typed document that is

largely not set forth in numbered paragraphs. The majority of Rose’s Complaint attempts to set
forth a chronological account of the events at issue by describing the content of approximately
12-15 different letters exchanged between Rose, Defendant Guanowsky, non-party Dr. Jennifer
O. Langstengel, and other non-parties in the fall of 2020. (See ECF No. 2 at 2-5). Rose attached
nearly forty pages of these letters as Exhibits to his Complaint. (See ECF No. 2-1 at 2-39.)
Despite Rose’s attempts to provide the Court with the necessary factual allegations and
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background information in his case, the factual basis for Rose’s claims is disorganized and
unclear. The Complaint contains many long, confusing, narratives about Rose’s medical
treatment by Dr. Langstengel and what impact that may or may not have had on Rose’s handling
of retail theft charges he faced in the Lehigh County Court of Common Pleas.
However, having reviewed the Complaint and the attached letters in detail, the Court has
discerned the following relevant factual background in this case. Initially, it appears that Dr.
Langstengel, a doctor of internal medicine employed by LVHN, was Rose’s personal physician
for an unspecified period until approximately October or November of 2020. (ECF No. 2 at 2.)
During the time that Dr. Langstengel treated Rose, she prescribed Rose several medications,
including a prescription for irbesartan to treat Rose’s high blood pressure. (Id.) However, at
some point before October 22, 2020, Rose attempted to obtain a refill of his irbesartan
prescription but he was informed by the pharmacist at Walgreens that an individual by the name
of “Min” from Dr. Langstengel’s office “had cancelled” his prescription. (Id.) It appears that as
a result, Rose was left without his blood pressure medication for about four to five days leading
up to October 22, 2020. (ECF No. 2-1 at 4.)
As the Court understands Rose’s allegations, the fact that he was without his blood
pressure medication for a period up to and including October 22, 2020 is relevant because Rose
entered into a plea agreement on the retail theft charge on that date. Specifically, public records
reflect that Rose entered a guilty plea on October 22, 2020 to one count of retail theft by under
ringing in violation of 18 Pa. S. A. § 3939(a)(4). See Commonwealth v. Rose, MJ-31302-NT0000399-2020 (C.P. Lehigh County). Rose alleges that because he was not on his blood pressure
medicine during the October 22, 2020 proceedings in Lehigh County, he was “a hot mess[,]” that
he “did not have all [his] faculties[,]” and that he was not of “normal mind” at the time. (ECF

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No. 2-1 at 4.) Rose claims that he “was very, very dizzy” on that day and “got confused” during
those proceedings – thinking that the charge against him was being dropped and that pleading to
a summary offense meant he would only get “a citation, like a ticket.” (Id.) Rose contends that
because he was not “of sound body and sound mind[,]” he “ended up [p]leading guilty to a
Summary Offense that [he] did not do.” 1 (Id.)
A few weeks later, on or about November 3, 2020, Rose filed a motion in the Lehigh
County Court of Common Pleas seeking to withdraw his guilty plea. See Commonwealth v.
Rose, CP-38-MD-0001962-2020, (C.P. Lehigh County). Shortly before he filed that motion, it
appears that Rose contacted Dr. Langstengel by letter dated November 2, 2020 regarding “Blood
Pressure Verification[.]” (ECF No. 2-1 at 4.) In that letter, Rose specifically asked Dr.
Langstengel for “a statement . . . verifying that without that medication there is no way [he] can
be mentally stable” and “verify[ing] that [he] was without [his] medicine during the course of
this [October 22, 2020] Proceeding.” (Id.) After receipt of this letter, it appears that Dr.
Langstengel informed Rose by letter dated November 10, 2020 that she would no longer
continue treating him as a patient. (ECF No. 2 at 3.) Rose, who claims he did not understand
why Dr. Langstengel was “kicking [him] out of the Practice[,]” continued writing letters to Dr.
Langstengel about her decision to terminate him as a patient and his prior request for a statement
verifying the blood pressure medication issues. (ECF No. 2-1 at 5-8, 11.) Rose wrote directly to
the CEO of LVHN on several occasions, and cc’d the CEO on several of his letters to Dr.
Langstengel. (Id. at 9, 12.)

1

It appears that Rose was represented by an attorney at the time he entered his guilty plea on
October 22, 2020. (See ECF No. 2-1 at 9) (“I allowed my Attorney to talk me into Pleading
Guilty to a Summary Offense which I knew nothing about.”).)
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After several weeks of letters from Rose to Dr. Langstengel and the CEO of LVHN,
Defendant Guanowsky, in his role as Deputy General Counsel for Litigation and Risk
Management, sent a letter to Rose dated November 23, 2020. (Id. at 10.) In that letter,
Guanowsky informed Rose that he was responding on behalf of LVHN’s “Senior Leadership”
with respect to Rose’s request for a new primary care provider and explained that it was Rose’s
sole responsibility to find a new provider. (Id.) Guanowsky also advised Rose that he was “not
to communicate further with members of Senior Leadership regarding these matters” and that
any “further communication [would] be deemed harassment” requiring Guanowsky’s office to
take “necessary measures.” (Id.) Guanowsky’s November 23, 2020 letter appears to have
prompted Rose to send multiple letters to Guanowsky, Dr. Langstengel, and others – most of
which assert Rose’s belief that Guanowsky was attempting to infringe on Rose’s First
Amendment rights and his belief that he is being “mistreated” because he is Black. 2 (See Id. at
13-19, 21-35.)
Rose contends that as a results of these events, he is now without a doctor to treat him for
various illnesses. (ECF No. 2 at 5.) Rose claims that Defendant Guanowsky “had no legal

2

In response to Rose’s continuing correspondence, Guanowsky wrote another letter to Rose
dated December 9, 2020 which provides in pertinent part:
As stated in my letter dated November 23, 2020 you were directed to
stop harassing our Senior Leadership in regards to Dr. Langstengel’s decision
to stop being your provider. The reasons are well known to you. You were
non-compliant with monitoring. You subsequently sought to have Dr.
Langstengel make a false statement to the Court after she made the medical[ly]
appropriate decision not to prescribe dangerously high doses of blood pressure
medication given your non-compliance.
For these reasons, Dr. Langstengel could not maintain a therapeutic relationship
with you and discharged you as a patient. Please be advised that legal action will be
taken if you make any further attempt to communicate with our Senior Leadership.
(ECF No. 2-1 at 20.)
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authority to write any threatening letters to” Rose, an elderly Black man, and that Guanowsky
“displays . . . how White Supremacy and white Racism is enforced in Lehigh County, PA and in
particular, at LVHN.” (Id. at 8.) Rose seeks an order against Defendant Guanowsky for
“violating Plaintiff’s Civil Rights” and seeks an award of $250,000 in punitive damages and
$250,000 in nominal damages for these “flagrant Civil Rights Violations.” (Id.)
II.

STANDARD OF REVIEW
The Court will grant Rose leave to proceed in forma pauperis because it appears that he

is not capable of paying the fees to commence this civil action. Accordingly, Rose’s Complaint
is subject to 28 U.S.C. § 1915(e)(2)(B)(ii), which requires the Court to dismiss the Complaint if
it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) 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.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). “At this early stage of the litigation,’ ‘[the Court
will] accept the facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences
in [the plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . .
contains facts sufficient to state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366,
374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)).
Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As Rose is proceeding pro se, the
Court construes his allegations liberally. Vogt v. Wetzel, 8 F. 4th 182, 185 (3d Cir. 2021)
(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

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III.

DISCUSSION
Rose repeatedly alleges that the Complaint in this case is “for Federal Civil Rights

Violations[,]” (see ECF No. 2 at 1, 2, 8), but he explicitly disclaims this action as one brought
pursuant to 42 U.S.C. § 1983. (See id. at 1) (“This is not a Claim Under Title 42 SS 1983[.]”)
Rather, Rose seeks to bring claims pursuant to 42 U.S.C. §§ 1981, 1985, 1986. (Id. at 2.) The
Court address each in turn.
A.

Rose’s Claims Under § 1981

Section 1981 prohibits race discrimination in the making and enforcement of contracts.
See 42 U.S.C. § 1981(a) (“All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses and exactions of every kind, and to no other.”). This Reconstructionera statute, along with several others, was enacted to effectuate the aims of the Thirteenth and
Fourteenth Amendments to the Constitution. Brown v. Philip Morris Inc., 250 F.3d 789, 796-97
(3d Cir. 2001) (noting that the legislative history of § 1981, derived from the Civil Rights Act of
1866 and from the reenactment of Section 1 of the 1866 Act in 1870, makes clear Congress’s
intent to enact “sweeping legislation implementing the [T]hirteenth [A]mendment to abolish all
the remaining badges and vestiges of the slavery system”) (quoting Mahone v. Waddle, 564 F.2d
1018, 1030 (3d Cir. 1977)). To state a claim under § 1981, a plaintiff “must allege facts in
support of the following elements: (1) [that plaintiff] is a member of a racial minority; (2) intent
to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or
more of the activities enumerated in the statute[,] which includes the right to make and enforce

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contracts . . . .” Brown, 250 F.3d at 797 (alterations in original) (quoting Yelverton v. Lehman,
No. Civ. A. 94-6114, 1996 WL 296551, at *7 (E.D. Pa. June 3, 1996), aff’d. mem., 175 F.3d
1012 (3d Cir. 1999)).
Rose’s Complaint asserts that Defendant Guanowsky is a “White Racist” who is
“attempting to practice jiggaboo law” because Guanowsky believes he can “treat . . . [Rose] like
[Rose] [is] no more than a ‘stupid N[*&&$^]’.” 3 (ECF No. 2 at 6.) Rose contends that in the
November 23, 2020 letter, Guanowsky “threatened” that if Rose exercised his First Amendment
Rights by “contacting a White Man for help then the ‘N[*&&$^]’ man should be arrested for
harassment when this retarded Defendant knows full well his remarks clearly indicate that he is a
White Racist.” (Id.) Throughout the remainder of the Complaint, Rose asserts that Guanowsky
is a white racist and a white supremacist who is attempting to restrict Rose’s First Amendment
rights in an effort to enforce white racism and white supremacy. (Id. at 6-8.) Rose concludes by
comparing himself to George Floyd because, like Floyd, Rose “cannot breathe because, [he] has
been stripped of his Civil Rights and Liberties.” 4
Despite Rose’s repeated use of racial epithets and language designed to describe racial
animus, Rose does not actually allege that Defendant Guanowsky committed any intentional act
to discriminate against him based on his race with respect to the end of Rose’s treatment by Dr.
Langstengel or Rose’s need to obtain a new primary care provider. Rose alleges that as an

3

For purposes of this Memorandum, the Court will refrain from the use of racial epithets and
simply note that they are present in Rose’s Complaint.
4

The letters Rose attached as exhibits to his Complaint also contain repeated use of racial
epithets and make similar conclusory, impertinent allegations against Defendant Guanowsky,
and include the use of inflammatory language, like references to the “Ku Klux Klan”, the “Third
Reich”, and what “Joesef Mangela [sic]. . . did to the Jews[.]” (See generally ECF No. 2-1 at 1317, 21-23, 28-34.)
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African American he suffered unlawful discrimination, (see ECF No. 2 at 6-8), but he does not
explain what facts or circumstances support his conclusion. Rather, Rose relies on conclusory
allegations of generalized racial bias, which are insufficient to satisfy the elements of a claim
under § 1981. See Spence v. Caputo, Civ. A. No. 12-1077, 2015 WL 630294, at *27 (W.D. Pa.
Feb. 12, 2015) (dismissing § 1981 and § 1982 claims because plaintiff’s claims were mere
speculation and did not allege which of the enumerated rights under these sections were
allegedly violated, which defendants were involved, the dates that any violations occurred, nor
were facts alleged to show that any deprivation of the enumerated rights was racially motivated);
see also Davis v. Samuels, 962 F.3d 105, 115-16 (3d Cir. 2020) (affirming dismissal on the
merits of plaintiff’s § 1981 claim against federal defendants for failure to state a plausible claim
of race discrimination). Moreover, Rose’s Complaint lacks any plausible allegation that the
alleged discrimination concerned one or more of the activities enumerated in the statute, such as
the making or enforcement of contracts. Accordingly, Rose’s claim has failed to state a plausible
claim under § 1981. This claim will be dismissed with prejudice as any attempt to amend would
be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002) (stating that
leave to amend claims dismissed on screening should be generally be granted “unless
amendment would be inequitable or futile.”)
B.

Rose’s Claims Under § 1983

Although Rose explicitly disclaims that he seeks to bring this action pursuant to § 1983,
the allegations of the Complaint, construed liberally, could fairly be understood as an attempt to
bring a claim against Defendant Guanowsky for violating Rose’s First Amendment rights by
somehow attempting to restrict or limit Rose’s speech to various employees at LVHN pursuant

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42 U.S.C. § 1983, the vehicle by which federal constitutional claims may be brought in federal
court. Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, 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 immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988). Whether a defendant is acting under color of state law — i.e., whether the
defendant is a state actor — depends on whether there is “such a ‘close nexus between the State
and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the
State itself.’” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal quotations omitted).
Pursuant to § 1983, action under color of state law requires that the one liable under that statute
have exercised power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law. Harvey v. Plains Twp. Police Dep’t, 635
F.3d 606, 609 (3d Cir. 2011).
“It is axiomatic that the First Amendment governs only state action, not the actions of
private [actors and] entities.” Max v. Republican Comm. of Lancaster Cty., 587 F.3d 198, 200
(3d Cir. 2009). The Supreme Court has made clear that “a private entity may qualify as a state
actor when it exercises ‘powers traditionally exclusively reserved to the state.’” See Manhattan
Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (citing Jackson v. Metro. Edison
Co., 419 U.S. 345 (1974)). Moreover, “the fact that the government licenses, contracts with, or
grants a monopoly to a private entity does not convert the private entity into a state actor – unless
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the private entity is performing a traditional, exclusive public function. The same principle
applies if the government funds or subsidizes a private entity.” Id. at 1931-32 (internal citations
omitted). Private hospitals, no matter how much federal funding they may receive, are generally
not state actors for purposes of constitutional questions. See, e.g. Thomas v. Nationwide
Children’s Hosp., 882 F.3d 608, 612 (6th Cir. 2018).
To the extent Rose’s Complaint could be construed as seeking to bring a § 1983 claim
against Guanowsky for allegedly violating Rose’s First Amendment rights (or any other
constitutional rights), Rose has not plausibly alleged facts demonstrating that Guanowsky is a
state actor. The Complaint and the attached Exhibits make clear that Guanowsky is Deputy
General Counsel for Litigation and Risk Management LVHN. LVHN is a private healthcare
system, and there are no allegations in the Complaint that LVHN has any connection to a state,
county, or local government entity which suggest that its private business conduct can be treated
as that of the state. The same is true with respect to Guanowsky in his role as Deputy General
Counsel for LVHN. Rose does not allege that Guanowsky has any connection to a state, county,
or local government entity. Moreover, even assuming the LVHN receives any federal funding,
that alone is insufficient to convert Guanowsky into a state actor for purposes of a § 1983 claim.
Accordingly, any claims Rose seeks to bring against Guanowsky under § 1983 will be dismissed
with prejudice pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim. Rose will not be
granted to leave to amend on this issue as any attempt to amend would be futile.
C.

Rose’s Conspiracy Claims Under §§ 1985 and 1986

Rose asserts that he is bringing claims pursuant to §§ 1985 and 1986. (ECF No. 2 at 2.)
42 U.S.C. § 1985(3) creates a cause of action against persons who “conspire . . . for the purpose
of depriving, either directly or indirectly, any person or class of persons of the equal protection

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of the laws, or of equal privileges and immunities under the laws. . . .” 42 U.S.C. § 1985(3). To
state a plausible claim under § 1985(3) a plaintiff must allege the following elements: (1) a
conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive,
directly or indirectly, any person or class of persons of the equal protection of the laws; (3) an act
in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any
right or privilege of a citizen of the United States. Lake v. Arnold, 112 F.3d 682, 685 (3d
Cir.1997). Significantly, “‘[t]he [statutory] language requiring intent to deprive of equal
protection . . . means that there must be some racial . . . invidiously discriminatory animus
behind the conspirators’ action.’” United Bhd. of Carpenters & Joiners of Am., Local 610, AFLCIO v. Scott, 463 U.S. 825, 835 (1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102
(1971). Moreover, a plaintiff must allege specific facts to sustain a § 1985(3) claim:
With near unanimity, the courts have rejected complaints containing mere
conclusory allegations of deprivations of constitutional rights protected under §
1985(3). A conspiracy claim based upon § 1985(3) requires a clear showing of
invidious, purposeful and intentional discrimination between classes or
individuals.
Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972); see also Grigsby v. Kane, 250 F. Supp.
2d 453, 458 (M.D. Pa. 2003) (“[O]nly allegations which are particularized, such as those
addressing the period of the conspiracy, the object of the conspiracy, and actions taken in
furtherance of the conspiracy, will be deemed sufficient.”)
“[T]o properly plead an unconstitutional conspiracy, a plaintiff must assert facts from
which a conspiratorial agreement can be inferred.” Great W. Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). “[A] bare assertion of conspiracy will not
suffice.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “[Section] 1986 constitutes an
additional safeguard for those rights protected under 42 U.S.C. § 1985, and ‘transgressions of §

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1986 by definition depend on a preexisting violation of § 1985.” Clark v. Clabaugh, 20 F.3d
1290, 1295 (3d Cir. 1994) (quoting Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980)).
In other words, “to maintain a cause of action under § 1986, the plaintiffs must show the
existence of a § 1985 conspiracy.” Id. at 1295 n.5.
Rose’s Complaint does not allege a plausible claim under § 1985. At the outset, the
Court notes that the Complaint itself does not even contain the word conspiracy or conspire, and
makes only one passing reference to § 1985 in its jurisdictional paragraph. 5 Rose has not alleged
a single factual detail regarding the formation of a conspiracy between Defendant Guanowsky
and any other individual. Leaving aside Rose’s conclusory allegations, impertinent
characterizations, and his use of racial epithets and other inflammatory language in the
Complaint, Rose completely fails to specify the nature and purpose of any alleged conspiracy
against him, nor does he plausibly allege a conspiracy against him based on his race or
membership in a class. Accordingly, these claims are also implausible and will be dismissed
with prejudice. Cf. Balthazar v. Atl. City Med. Ctr., 279 F. Supp. 2d 574, 592 (D.N.J. 2003),
aff’d, 137 Fed. Appx. 482 (3d Cir. 2005) (dismissing § 1985 conspiracy claim for failure to state
a claim where plaintiff, an indigent, African-American woman, asserted that a medical center
and several doctors conspired to deprive her of her Medicaid benefits because she did “not
provide a factual basis for her claims that the alleged conspiracy was motivated by ‘racial ... or
otherwise class-based’ animus.”). Because Rose has failed to allege the existence of a § 1985

5

In Rose’s December 15, 2020 letter to Defendant Guanowsky, Rose states that Guanowsky is
“no more than a coconspirator who had a meeting of the minds with Dr. Langstengel to come up
with this diabolical defense by stating a ‘N[*&&#$’ wanted a white doctor to tell the [Lehigh
County Common Pleas] Court a lie.” (ECF No. 2-1 at 33.) This passing reference to
Guanowsky as a “coconspirator” and a “meeting of the minds” between Guanowsky and Dr.
Langstengel in a letter predating the initiation of this litigation is insufficient to allege a plausible
claim under § 1985.
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conspiracy, he also cannot maintain a plausible § 1986 claim and this claim will similarly be
dismissed with prejudice pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim. As any
attempt to amend either the § 1985 or § 1986 claim would be futile, Rose will not be granted
leave to amend these claims.
IV.

CONCLUSION
For the foregoing reasons, the Court will grant Rose leave to proceed in forma pauperis,

dismiss his Complaint with prejudice in its entirety pursuant to § 1915(e)(2)(B)(ii) for failure to
state a claim. He will not be given leave to file an amended complaint, because it appears that
any attempt to cure the defects in his claims would be futile. An appropriate Order follows.
BY THE COURT:
/s/ Jeffrey L. Schmehl
JEFFREY L. SCHMEHL, J.

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