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Johnson v. Davita

United States District Court, D. Colorado

April 5, 2019

IRA JOHNSON, Plaintiff,
v.
DAVITA, and HEATHER RAHIM, Defendants.

          RECOMMENDATION REGARDING DISMISSAL

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the Amended Complaint (ECF No. 7)[1]. Plaintiff proceeds pro se[2]. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 9)[3]. The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Amended Complaint (ECF No. 7) and this action be dismissed without prejudice for lack of subject matter jurisdiction.

         I. Factual and Procedural Background

         Plaintiff Ira Johnson resides in Lakewood, Colorado. On January 4, 2019, he filed pro se a Complaint (ECF No. 1) and an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (ECF No. 2). The Court granted him leave to proceed pursuant to 28 U.S.C. § 1915 (ECF No. 4). At the Court's direction (ECF Nos. 4, 6), Plaintiff filed an Amended Complaint (ECF No. 7), which is the operative pleading.

         In the Amended Complaint, Plaintiff alleges Defendants have denied him healthcare in the form of dialysis treatment and caused other dialysis providers to refuse him treatment. (ECF No. 7 at 2). Plaintiff states all of the parties to this action are citizens of Colorado. (Id. at 1). As the basis for this Court's jurisdiction, Plaintiff cites 42 U.S.C. §§ 139, 901. (Id. at 1-2). He alleges four claims for relief: 1) “Violation of the Social Security Act establishing Medicaid - Gross negligence”; 2) “Defamation - with Malice”; 3) Negligence; and 4) “Gross Negligence and Defamation.” (Id. at 2-3). He requests money damages. (Id. at 3).

         II. Subject Matter Jurisdiction

         As explained in the Court's orders directing amendment (ECF Nos. 4, 6), Plaintiff must identify a cognizable basis for this Court's federal subject matter jurisdiction under 28 U.S.C. § 1331 or § 1332. “Federal courts are courts of limited jurisdiction; they must have a statutory basis for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). There are two statutory bases for federal subject matter jurisdiction: diversity jurisdiction under 28 U.S.C. § 1332 and federal question jurisdiction under 28 U.S.C. § 1331.

         The federal courts have an independent obligation to determine whether subject matter jurisdiction exists. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Because federal courts are courts of limited jurisdiction, there is a presumption against its existence. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A federal district court may therefore raise the objection that it lacks jurisdiction on its own initiative, at any stage of the litigation. See Fed. R. Civ. P. 12(h)(3); see also McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988) (The issue of subject matter jurisdiction may be raised sua sponte by the court at any time during the course of the proceedings.). Under Rule 12 of the Federal Rules of Civil Procedure, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

         In the Amended Complaint, Plaintiff identifies “42 USC 139 State Plan for medical assistance” and “42 USC 901 Social Security Administration” as grounds for this Court's jurisdiction. (ECF No. 7 at 1-2). These statutory citations are insufficient to convey jurisdiction. Title 42 U.S.C. § 901 established the Social Security Administration “as an independent agency in the executive branch of the Government.” Plaintiff does not cite and the Court is not aware of any authority showing that this statute conveys a basis for jurisdiction or private cause of action. E.g., Cappetta v. Comm'r of Soc. Sec. Admin., 904 F.3d 158, 165 (2d Cir. 2018) (recognizing 42 U.S.C. § 901 established the “Social Security Administration as an independent executive agency charged with overseeing Social Security programs”).

         Title 42 U.S.C. § 139 limits the liability of volunteers. The Court discerns that Plaintiff may have intended to cite to 42 U.S.C. § 1396a, which governs “state plans for medical assistance, ” referring to Medicaid. Title 42 U.S.C. § 1983 “creates a private cause of action to enforce other provisions of the federal Medicaid laws.” Harris v. Owens, 264 F.3d 1282, 1288 n.3 (10th Cir. 2001) (collecting cases); see also Fishman v. Daines, 743 F.Supp.2d 127, 132 (E.D.N.Y. 2010) (“42 U.S.C. § 1396a(a)(3) gives plaintiffs a right to a fair hearing that is enforceable through 42 U.S.C. § 1983.”).

         However, 42 U.S.C. § 1983 “provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted). Therefore, the only proper defendants in a § 1983 action are those who “‘represent [the State] in some capacity, whether they act in accordance with their authority or misuse it.'” NCAA v. Tarkanian, 488 U.S. 179, 191 (1988) (quotation omitted). There is no indication in this action that Defendants are state actors. Nor has Plaintiff specified which subsection in 42 U.S.C. § 1396, et seq., he contends is at issue. Thus, the Court recommends finding that Plaintiff's citation to “42 USC 139 State Plan for medical assistance” does not provide an adequate basis for subject matter jurisdiction.

         Further, federal question jurisdiction under 28 U.S.C. § 1331 is not warranted because Plaintiff does not allege any conduct by a state actor occurring under color of law, nor does he assert any claims arising under the federal Constitution or other federal laws or treaties of the United States. Instead, Plaintiff complains of private conduct that implicates Colorado state law governing negligence and defamation. (See ECF No. 6 at 3 (“it appears Plaintiff may have a cause of action based on negligence, which is based on state law”)). Because Plaintiff does not assert any claims under federal question jurisdiction, he must satisfy the diversity jurisdiction statute, 28 U.S.C. § 1332, to maintain this action in federal court.

         A plaintiff properly invokes' 1332 jurisdiction when he or she presents a claim between parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75, 000. See 28 U.S.C. § 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). To demonstrate federal jurisdiction pursuant to' 1332, allegations of diversity must be pleaded affirmatively. See Penteco Corp. Ltd. Partnership-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 8(a)(1) (pleading must contain "a short and plain statement of the grounds for the court's jurisdiction"). “Diversity jurisdiction requires complete diversity - no plaintiff may be a citizen of the same state as any defendant.” Grynberg v. Kinder Morgan Energy Partners, L.P., 805 F.3d 901, 905 (10th Cir. 2015).

         In Amended Complaint, Plaintiff alleges that he and Defendants are citizens of Colorado. (ECF No. 7 at 1). Thus, the allegations demonstrate that all parties are citizens of Colorado, which is insufficient to invoke this Court's diversity ...


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