Opinion
CIVIL ACTION NO. 1:07 CV 31 (STAMP).
April 4, 2007
OPINION/REPORT AND RECOMMENDATION
I. Procedural History
Proceeding pro se, on January 9, 2007 Plaintiff, Efrem O. Laboke, filed the within civil action in the United States District Court for the District of Columbia (Civil Action 07-0043). Noting that the complaint, on its face, asserted that the Plaintiff, Efrem O. Laboke was a resident of Farmington, West Virginia and that the named and unnamed Defendants, Grafton City Hospital, Dr. Ola Adeniyi, United Hospital Center and Dr. Guirguis S. Nabil were all residents of Grafton, Taylor County, West Virginia and Clarksburg, Harrison County, West Virginia and further noting that all of the claims alleged by Plaintiff relate to the care, treatment and death of Plaintiff's wife in West Virginia and bore no connection to the District of Columbia, the District of Columbia Court sua sponte transferred the case to the Norther District of West Virginia by order dated January 12, 2007 [Docket Entry 2] pursuant to 28 U.S.C. § 1404(a).
Dr. Nabil was not named in the caption of the case or complaint. However, the body of Plaintiff's complaint includes allegations concerning Dr. Nabil whom Plaintiff also identifies as a Defendant.
On March 14, 2007 the civil action was transferred to District Judge Frederick P. Stamp, Jr. by Chief Judge Irene M. Keeley.
By Order of Reference dated March 15, 2007 [Docket Entry 5] District Judge Frederick P. Stamp, Jr. referred the within civil action to the undersigned Magistrate Judge for screening of the complaint pursuant to 28 U.S.C. § 1915(a) and 28 U.S. C. § 1915(e)(2) (1996) and to make recommendation for disposition.
The named and unnamed Defendants have not been served with a copy of the summons and complaint and they have not appeared in the within action.
II. 28 U.S.C. 1915(a) and 28 U.S.C. § 1915(e)(2) (1996)
28 U.S.C. 1915(a) provides in pertinent part: "Subject to subsection (b), 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(e)(2) (1996) provides in pertinent part: "Notwithstanding 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."
III. Discussion
Jurisdiction
Plaintiff seeks: (a) "damages crime in an amount to be determine of $90,000,000.00 ninety million dollars" and (b) injunctive relief against Defendants (1) "compelling them to cease their illegal acts of medicine malpractice wrongful death of Plaintiff's wife Eunice Laboke" and (2) that they "be enjoined from all further acts of wrongful death of plaintiff's wife Eunice Laboke."Review of Plaintiff's complaint [Docket Entry 3-2] reflects that Efrem O. Laboke contends that neither he nor his wife signed authorization for surgery or hospice care treatment; that Dr. Adeniyi signed certain papers concerning hospice care for Eunice Laboke at Grafton City Hospital; that Dr. Nabil, an unnamed Defendant, performed surgery on Eunice Laboke while at United Hospital Center and that somehow those actions resulted in the wrongful death of Eunice Laboke. Plaintiff alleges that "Defendant foreign physicians . . . in the State of West Virginia are unlawfully allowed to go do medical experiments on patients at hospitals and nursing homes and. . . ."
Plaintiff asserted he was filing the within civil action under the auspices of 28 U.S.C. § 1346
Civil action cover sheet signed by Efrem Odongo Laboke on January 9, 2007 [Docket Entry 3-2].
This is not a civil action against the United States for the recovery of any internal-revenue tax under 28 U.S.C. § 1346(a)(1).
This is not a civil action or claim against the United States not exceeding $10,000 in amount founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort under 28 U.S.C. § 1346(a)(2).
This is not a civil action for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment where the United States if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred under 28 U.S.C. § 1346(b)(1).
This is not a civil action by a person convicted of a felony who is incarcerated for mental or emotional injury suffered while in custody under 28 U.S.C. § 1346(b)(2).
This is not a civil action which would include jurisdiction of any set-off, counterclaim, or other claim or demand on the part of the United States against the Plaintiff under 28 U.S.C. § 1346(c).
This civil action does not involve a pension under 28 U.S.C. § 1346(d).
This civil action does not fall under the purview of 28 U.S.C. § 1346(e).
This civil action does not involve a claim to quiet title to real property or an estate in which an interest is claimed by the United States under 28 U.S.C. § 1346(f) and Plaintiff is not a covered employee within the meaning of section 453(2) of title 3 or under chapter 5 of such title pursuant to 28 U.S.C. § 1346(g).
On it's face, Plaintiff's complaint does not assert diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332. To the contrary, all the Defendants are from the Northern District of West Virginia as is the Plaintiff, a fact which defeats diversity.
Reading Plaintiff's complaint in the most liberal of terms, no federal question is presented within the meaning of 28 U.S.C. § 1331.
In short, Plaintiff does not assert a basis for federal jurisdiction. Therefore, his complaint fails to state a claim that this court has jurisdiction to hear and should be dismissed.
West Virginia Medical Professional Liability Act
Even if Plaintiff had diversity of citizenship and amount in controversy jurisdiction or federal question jurisdiction, the Court must assess his claims within the confines of the West Virginia Medical Professional Liability Act.
Plaintiff's complaint appears to be a medical negligence claim over which the Courts of the State of West Virginia have jurisdiction over all the parties as well as the subject matter, provided Plaintiff meets the requirements of West Virginia Code Chapter 55, Article 7B Sections 1 et seq.
From the face of Plaintiff's complaint it is apparent that he has not complied with the mandatory pre-requisites for filing a medical professional liability claim as established in W.Va. Code Ch. 55, Art. 7B, Sec. 6(b) or the alternative procedures established by Sec. 6(c) and (d). Absent compliance with the statutory pre-requisites, plaintiff's complaint, insofar as it makes a medical professional liability claim, fails to state a claim on which relief may be granted.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned RECOMMENDS Plaintiff's action be DISMISSED as frivolous for lack of jurisdiction and because the same fails to state a claim on which relief may be granted within the meaning of 28 U.S. C. § 1915(e)(2).
Any party may, within ten (10) days after being served with a copy of this Report and Recommendation, file with the Clerk of the Court written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Frederick P. Stamp, Jr., United States District Judge. Failure to timely file objections to the Report and Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such report and recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The District Clerk for the United States District Court for the Northern District of West Virginia is directed to provide a copy of this Opinion/Report and Recommendation to the pro se Plaintiff at Route 1, Box 497-A, Farmington, West Virginia 26571.
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ORDER OF REFERENCE
On January 9, 2007, pro se plaintiff, Efrem O. Laboke, filed the above-styled civil action in the United States District Court for the District of Columbia. On March 8, 2007, the United States District Court for the District of Columbia transferred this civil action to this Court and the case was assigned to the Honorable Irene M. Keeley. On March 14, 2007, this civil action was transferred by Judge Keeley to the undersigned judge.
For reasons appearing to the Court and pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), it is hereby ORDERED that this action be, and hereby is, referred to the Honorable John S. Kaull, United States Magistrate Judge, who is hereby designated and authorized to consider the record and do all things proper to recommend disposition of any dispositive motions filed in this matter and to rule upon any nondispositive motions, excluding motions in limine, including, without limitation, conducting a hearing on the motions, if necessary, and entering into the record a written order setting forth the disposition of the motions or recommendation for disposition, as the case may be. Further, the magistrate judge is directed to conduct as soon as practicable a screening of the complaint pursuant to 28 U.S.C. § 1915(a) and 28 U.S.C. § 1915(e)(2) (1996) and to make a recommendation for disposition.
The clerk is directed to transmit copies of this order of to the pro se plaintiff, to the defendants, and to any counsel of record herein and to the Honorable John S. Kaull, United States Magistrate Judge.
ORDER
Proceeding pro se, plaintiff Efrem O. Laboke, a resident of Farmington, West Virginia, filed this civil action against two West Virginia hospitals, Grafton City Hospital and United Hospital Center, and two "resident physicians" at those hospitals, Dr. Ola Adeniyi and Dr. Guirguis G. Nabil. Although the nature of plaintiff's claims is not entirely clear from the complaint, the claims relate to the death of plaintiff's wife while under the defendants' care in West Virginia. In particular, plaintiff alleges that Dr. Adeniyi illegally signed certain papers concerning hospice care for his wife (Compl. at 2), and that Dr. Nabil performed surgery on his wife without consent at the United Hospital Center ( id. at 4-5). Because it is clear from the face of the complaint that all of the events giving rise to plaintiffs' claims occurred in West Virginia, and because the case does not have any connection to this district, the Court will sua sponte transfer the case to the Northern District of West Virginia pursuant to 28 U.S.C. § 1404(a).
The caption of plaintiff's complaint lists only the two hospitals and Dr. Adeniyi as defendants; however, an attachment to the complaint includes allegations concerning Dr. Nabil, whom plaintiff also identifies as a defendant. (Compl. at 4-5.)
Section 1404(a) provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). There is no question that this case could have been brought in the Northern District of West Virginia. Both of the hospitals at which plaintiff's wife received medical care are located in that district, and all of the events giving rise to plaintiff's claims occurred there. See 28 U.S.C. § 1391(b) ("[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may . . . be brought . . . [in] a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . ."). In these circumstances, where the case has no connection to this jurisdiction and every connection to another district, transfer will serve both the convenience of the parties and witnesses and the interest of justice. See Kirby v. Mercury Sav. Loan Ass'n, 755 F. Supp. 445 (D.D.C. 1990) (transferring case sua sponte to the Southern District of California pursuant to 28 U.S.C. § 1404(a) where case involved California parties, witnesses, facts and law and had "virtually nothing to do with [the District of Columbia]"). Accordingly, it is hereby
Jurisdiction in this case cannot be based on diversity as plaintiff and the two hospital defendants are citizens of West Virginia. Exxon Mobil Corp. v. Allapattah Servs. Inc., 125 S. Ct. 2611, 2623 (2005) (federal jurisdiction under 28 U.S.C. § 1332 requires complete diversity). The citizenship of Dr. Adeniyi and Dr. Nabil is not alleged.
ORDERED that this case be transferred to the United States District Court for the Northern District of West Virginia; and it is
FURTHER ORDERED that the Clerk of this Court shall transmit all records and papers in this action to the Clerk of the Court for the United States District Court for the Northern District of West Virginia, together with a certified copy of this Order.