United States District Court, W.D. Kentucky, Paducah Division
B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT
se Plaintiff Margaret Michelle Driver filed the instant
action. Because Plaintiff is proceeding in forma
pauperis under 28 U.S.C. § 1915, the Court must
undertake a preliminary review of the complaint. See
28 U.S.C. § 1915(e); McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997), overruled on other grounds
by Jones v. Bock, 549 U.S. 199 (2007). For the following
reasons, the action will be dismissed.
SUMMARY OF CLAIMS
names as Defendants the Caldwell Medical Center; Michael
Howard, a doctor at the Caldwell Medical Center; and Caldwell
Medical Center Nurse Robin Locke. In the section of the
complaint form for stating the basis for federal question
jurisdiction, the complaint states: “civil liberties
[and] medical malpractice negligence.” The complaint
states that on November 28, 2016, Plaintiff's
“civil liberties were violated when [she] became a
victim of malpractice negligence caused by” Defendants
Howard and Locke. Plaintiff states that she arrived at the
Caldwell Medical Center via ambulance “for possible
overdose and head injury caused by an accidental fall. [She]
was restrained by E.M.T.'s due to combative state.”
Plaintiff alleges that she “was left unrestrained in
the emergency room at Caldwell Medical Center and instead of
following protocols [she] was treated as just a belligerent
drunk instead of a combative head injury and possible
overdose patient.” She states that Defendants Howard
and Locke called the police and had her arrested for
disorderly conduct, after which she was “thrown in a
holding cell at Caldwell Co. Jail in deplorable
conditions” and given an unfair trial. She states that
an appeal of that case is pending.
relief, Plaintiff asks for injunctive relief in the form of
“retrain staff on how to treat head injuries and
possible overdose patients” and punitive damages.
Plaintiff is proceeding in forma pauperis, this
Court must review the instant action. See 28 U.S.C.
§ 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d
at 608. Upon review, this Court must dismiss a case at any
time if the Court determines that the action is
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B). A claim is legally frivolous when it
lacks an arguable basis either in law or in fact. Neitzke
v. Williams, 490 U.S. 319, 325 (1989). The Court may,
therefore, dismiss a claim as frivolous where it is based on
an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327.
determining whether a plaintiff has stated a claim upon which
relief can be granted, the Court must construe the complaint
in a light most favorable to the plaintiff and accept all of
the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). A
complaint, or portion thereof, should be dismissed for
failure to state a claim upon which relief may be granted
“only if it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his claim that would
entitle him to relief.” Brown v. Bargery, 207
F.3d 863, 867 (6th Cir. 2000). While a reviewing court must
liberally construe pro se pleadings, Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to
avoid dismissal, a complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
extent that Plaintiff is alleging violations of her civil
liberties, the Court interprets those claims to be that her
constitutional rights were violated. The Sixth Circuit has
stated that “it is unnecessary and needlessly redundant
to imply a cause of action arising directly under the
Constitution where Congress has already provided a statutory
remedy [42 U.S.C. § 1983] of equal effectiveness through
which the plaintiff could have vindicated [her]
constitutional rights.” Thomas v. Shipka, 818
F.2d 496, 500 (6th Cir. 1987), vacated on other
grounds, 488 U.S. 1036 (1989). Plaintiff cannot allege a
cause of action directly under the Constitution, and,
therefore, the Court construes Plaintiff's claims under
the constitutional amendments as being brought pursuant to
§ 1983. Azul-Pacifico, Inc. v. City of Los
Angeles, 973 F.2d 704, 705 (9th Cir. 1992); City of
Dayton v. A.R. Envtl., Inc., 886 F.Supp.2d 775, 779
(S.D. Ohio 2012).
order to state a claim under § 1983, a plaintiff must
allege both a violation of a right or rights secured by the
Constitution or laws of the United States and that the
alleged deprivation was committed by a person acting under
color of state law. See West v. Atkins, 487 U.S. 42
(1988). A private entity or private individual acting on his
or her own cannot deprive a citizen of his or her
constitutional rights. See Lansing v. City of
Memphis, 202 F.3d 821, 828 (6th Cir. 2000) (citing
Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978);
Hudgens v. NLRB, 424 U.S. 507 (1976)). Section 1983
does not create a cause of action against a private actor
“‘no matter how discriminatory or wrongful'
the party's conduct.” Tahfs v. Proctor,
316 F.3d 584, 590 (6th Cir. 2003) (quoting Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)).
satisfy the “color of state law” prong of §
1983, Plaintiff must allege facts showing that Defendants
were either 1) acting under the compulsion of the state
(state compulsion test); 2) engaged in an activity
traditionally reserved to the state (public function test);
or 3) their activities were sufficiently close and/or
controlled by the state that their actions could fairly be
attributed to it (nexus test). See Chapman v. Higbee
Co., 319 F.3d 825, 833 (6th Cir. 2003).
complaint fails to allege facts meeting any of the three
tests. As noted above, Plaintiff alleges that Defendants
Howard and Locke, a doctor and a nurse, simply called the
police to report Plaintiff's disorderly conduct. Such
allegations fail to show a sufficient intermingling of state
involvement with Defendants to support a finding of state
action. See Boykin v. Van Buren Twp., 479 F.3d 444,
452 (6th Cir. 2007) (indicating that private security guards,
who merely called police regarding a suspected shoplifter,
were not state actors for purposes of § 1983);
Johnson v. LaRabida Children's Hosp., 372 F.3d
894, 896-97 (7th Cir. 2004) (holding that hospital security
guards who had authority to patrol and eject people but not
to carry guns and who had to call the police if someone
became hostile and belligerent were not “state
actors”); Styles v. McGinnis, 28 F. App'x
362, 364 (6th Cir. 2001) (holding that an emergency room
physician who treated the plaintiff-prisoner did not qualify
as a state actor); Brautigam v. Pastoor, No.
1:16-CV-1141, 2017 WL 3588827, at *1-2 (S.D. Ohio Mar. 31,
2017) (finding that where Defendant, Plaintiff's
neighbor, “simply called the police to report
Plaintiff's alleged menacing behavior, ” Plaintiff
failed “to show a sufficient intermingling of state
involvement with defendants to support a finding of state
action”), report and recommendation adopted, No.
1:16CV1141, 2017 WL 3600440 (S.D. Ohio Aug. 18, 2017).
also raises state-law claims of “medical malpractice
negligence.” However, this federal court does not have
jurisdiction to hear Plaintiff's state-law claims. Under
the diversity-of-citizenship statute, “district courts
shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,
000 . . . and is between . . . citizens of different states .
. . . ” 28 U.S.C. § 1332(a)(1). “[Diversity
jurisdiction does not exist unless each defendant is
a citizen of a different State from each
plaintiff.” Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373 (1978). Plaintiff, however,
neither claims that the action exceeds $75, 000 nor
demonstrates that she or Defendants are citizens of a State
other than Kentucky. In fact according to the complaint,
Plaintiff and all Defendants are residents of Princeton,
Kentucky. Consequently, Plaintiff cannot bring any state-law
claims by way of the federal diversity statute.