Opinion
Civil Action No. 6:16-3563-HMH-KFM
03-28-2017
Rachael Marie Ponto Rivera, Plaintiff, v. Margaret E. Burton and Maduka Odogwu, Defendants.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the defendants' motion to dismiss for failure to state a claim (doc. 22). The plaintiff, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983, seeking monetary damages. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983, and submit findings and recommendations to the district court.
On November 3, 2016 the plaintiff filed a complaint against four defendants: Women's Healthcare, Bon Secours St. Francis Health System ("Bon Secours"), Margaret Burton, and Maduka Odogwu (doc. 1). On February 1, 2017, defendants Women's Healthcare and Bon Secours were summarily dismissed from this action (doc. 18). On February 9, 2017, the two remaining defendants filed a motion to dismiss (doc. 22). On that same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the dismissal procedure and the possible consequences if she failed to respond adequately (doc. 23). On March 7, 2017, the plaintiff filed a response in opposition (doc. 25), and on March 13, 2017, the defendants filed a reply (doc. 27). On March 20, 2017, the plaintiff filed a sur-reply (doc. 28).
ALLEGATIONS
In her complaint, the plaintiff alleges discrimination on the basis of race, disability, and gender in violation of her Fourteenth Amendment rights (doc. 1 at 4). She also alleges violation of her Fourth Amendment rights based upon a warrantless search (id.). The plaintiff alleges that she is a pregnant, low income, disabled woman and a minority (id.). She went to Women's Healthcare for treatment during her pregnancy (id. at 8). She states that she was told that Women's Healthcare was "part of Saint Francis Bon Secours state hospital," and she alleges that defendants Margaret Burton and Moduka Odgowa are employees of Women's Healthcare (id. at 8-9, 11). She contends that she willingly gave a urine sample; however, Ms. Burton did not inform her that the tests would include a drug screen, she did not give permission for a drug test, and there was no probable cause for one to be administered (id. at 4, 8). The plaintiff alleges that a urinalysis was performed in order to report her to "outside agencies and law enforcement" (id. at 8). She alleges that Dr. Odogwu "did not revoke" the warrantless search by Ms. Burton (id. at 4). She also asserts that she received an improper and painful physical examination from Dr. Odgowa (id. at 9). The plaintiff states that she needed more antibiotics to treat an E. coli infection; however, Dr. Odgowa refused to prescribe them without completing a physical examination (id. at 10). The plaintiff alleges that someone made an entry in her medical chart that she was a high risk pregnancy and had not received proper medical care. She requested, and Dr. Odgowa agreed, to delete this information, but the staff at Women's Healthcare failed to correct her chart (id. at 10-11).
The plaintiff seeks removal of her medical record from the internet; $385 for the drug screening; and $1,500,000 for emotional distress, for any untreated illness suffered by the fetus, and for injury suffered during her examination (id. at 6).
APPLICABLE LAW AND ANALYSIS
Legal Standard
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F. Supp. 3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). "[T]he facts alleged 'must be enough to raise a right to relief above the speculative level' and must provide 'enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 569 (2007)). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
While a complaint "does not need [to allege] detailed factual allegations," pleadings that contain mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Stated differently, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show [n]'—'that the pleader is entitled to relief.' " Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). When determining a motion to dismiss pursuant to Rule 12(b)(6), the court must take all well-pled material allegations of the complaint as admitted and view them in the light most favorable to the non-moving party. De Sole v. U.S., 947 F.2d 1169, 1171 (4th Cir. 1991) (citing Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
Under Federal Rule of Evidence 201, a trial court may take judicial notice of facts on its own accord and "must take judicial notice if a party requests it and the court is supplied with the necessary information." The court may take judicial notice of a fact "that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). "The court may take judicial notice at any stage of the proceeding." Id. 201(d). When resolving a motion to dismiss, "a court may consider facts and documents subject to judicial notice without converting the motion into one for summary judgment." Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011)). The court may take judicial notice of matters of public record. Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
The plaintiff attached several exhibits to her response in opposition to the motion to dismiss, including witness statements (doc. 25-1), descriptions of several medical conditions (doc. 25-2), and her own medical records (doc. 25-3). As this material is not pertinent to the issues presented in the motion to dismiss for failure to state a claim, the undersigned has not considered the exhibits and recommends that the district court exclude the materials. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. . . ."); Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 252 (4th Cir.1991) (holding that inclusion of affidavits did not convert motion to dismiss into motion for summary judgment because the district court did not consider such material).
Section 1983 Claims
The plaintiff brought this action under Section 1983, which " 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.' " Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). In order to state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that she was deprived of a right secured by the Constitution or the laws of the United States and (2) that the alleged deprivation was committed by a person acting under the color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
The defendants first argue that the plaintiff's Section 1983 claims against them should be dismissed because they were not acting under the color of state law during the incidents alleged by the plaintiff. The undersigned agrees. A plaintiff may maintain an action under Section 1983 against a private individual only if the party charged with the deprivation "may fairly be said to be a state actor." Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The act of a private individual may be deemed state action "only if 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.'" Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). Circumstances where courts have found private conduct attributable to the State include the following: where the State exercised coercive power or provided such significant encouragement that the choice is deemed that of the State, where a private entity exercised powers that are traditionally the exclusive prerogative of the State, where a private actor operates as a willful participant in joint activity with the State or its agents, and where the government is entwined in the management or control of a private entity. Id. at 311-312 (citations omitted).
In her complaint, the plaintiff does not explain how Ms. Burton and Dr. Odogwu acted under color of state law. She alleges that she was told that Women's Healthcare is "part of Saint Francis Bon Secours state hospital" and infers that Ms. Burton and Dr. Odogwu are employees of Women's Healthcare and Bon Secours. Thus, it appears that she is alleging that the defendants are state employees. The defendants have presented matters of public record, specifically the "Business Entity Profiles" maintained by the South Carolina Secretary of State and available on the Secretary's website, showing that Bon Secours St. Francis Health System, Inc. is a private, domestic, nonprofit corporation (doc. 22-1), and Women's Healthcare, Inc. was a domestic corporation formed in 2002 and dissolved on April 27, 2015 (doc. 22-2). The defendants admit that they are employed by Bon Secours and are (and were at the relevant time) practicing at Women's Healthcare (doc. 22 at 5). The defendants ask that the court take judicial notice of these matters of public record, which is appropriate. See Fed. R. Evid. 201(c) ("The court . . . must take judicial notice if a party requests it and the court is supplied with the necessary information."). Based on these facts of public record, it is clear that Ms. Burton and Dr. Odogwu are employed by a private hospital and are not state employees.
In her response in opposition to the motion to dismiss, the plaintiff argues that the defendants were acting under color of state law for two reasons: (1) they are professionals licensed by the state, and (2) Ms. Burton conducted an unreasonable search and seizure and thereby "acted as a police officer," "did operations that only law enforcement can do," and "aided" DSS (a state agency), while Dr. Odogwu, as her supervising physician, was complicit in her actions (doc. 25 at 2, 5-9).
First, as argued by the defendants, doctors and nurse practitioners are not state actors simply by virtue of the fact that they are licensed and regulated by the State. See Jackson, 419 U.S. at 354 (doctors, lawyers, public utilities, and various businesses who are regulated by the State and provide arguably essential goods and services "affected with a public interest" are not on that basis alone deemed state actors); Milburn v. Anne Arundel Cty. Dep't of Soc. Servs., 871 F.2d 474, 477-79 (4th Cir. 1989) (declining to hold that abusive foster parents were state actors for purposes of § 1983, despite the fact that the foster parents were licensed by the State and entrusted by the State with the care of the abused child).
Second, in her complaint, the plaintiff fails to allege a close nexus between the State and the challenged actions of Ms. Burton and Dr. Odogwu. In attempting to explain why their actions should be deemed state action (see doc. 25 at 6-18), the plaintiff goes far beyond the factual allegations of her complaint, in which she merely alleges that Ms. Burton intended to report a positive drug test to "outside agencies and law enforcement." Her complaint alleges no association or cooperation between Ms. Burton and the police or DSS. She does not even allege that Ms. Burton reported her drug test results to the police, and Ms. Burton denies that she did so (doc. 27 at 3). To the extent the plaintiff alleges that it was Ms. Burton's intention to report a positive drug test to the Department of Social Services ("DSS"), the defendants note that in doing so Ms. Burton would be complying with South Carolina law, which requires her, as a nurse, to report to either DSS or a law enforcement agency that she had received information giving reason to believe that the plaintiff's child (a viable fetus) may have been abused or neglected (doc. 27 at 3). See S.C. Code Ann. § 63-7-310.
In her response in opposition to the motion to dismiss (doc. 25 at 3), the plaintiff cites Ferguson v. City of Charleston, 532 U.S. 67 (2001) for the proposition that an unconsented urine drug screen is an unconstitutional search. As argued by the defendants, the facts here differ sharply from Ferguson, where a state hospital developed and implemented a policy in cooperation with law enforcement to use the threat of arrest and prosecution in order to force women into substance abuse treatment. Id. at 81-82. The Supreme Court of the United States stated:
While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.Id. at 84-85 (emphasis in original). Here, however, there is no allegation of cooperation or coordination between the defendants and law enforcement nor any credible or plausible basis for such an allegation. The plaintiff fails to allege that there was any nexus between the actions of Ms. Burton and Dr. Odogwu and the State, that they participated with the State, that they exercised a public function in taking any of the actions challenged, or that they were entwined with the State in taking any of the actions challenged. Based upon the foregoing, the plaintiff has failed to allege facts supporting an inference that the private action by the defendants was converted to action by the State, and therefore the plaintiff has failed to demonstrate that the defendants are amenable to suit under Section 1983. See Bower v. Lawrence Cty. Children and Youth Servs., 964 F. Supp.2d 475, 488-89 (W.D. Penn. 2013) (granting summary judgment to private hospital on Section 1983 constitutional conspiracy claim finding no evidence of "willful participation, mutual understanding or joint activity" to violate plaintiff's rights where hospital reported positive results of drug test but did not participate in decision of how results would be used by state agency). Based upon the foregoing, the plaintiff's federal claims should be dismissed.
In the complaint, the plaintiff alleges in conclusory fashion that the defendants violated her Fourteenth Amendment rights in discriminating against her on the basis of her income ("low income"), "minority" (she did not specify her race), disability (she did not specify her disability), and gender ("pregnant woman") (doc. 1 at 4). However, the plaintiff's complaint fails to set forth specific allegations of intentional discrimination on account of race, disability, gender, or any other protected category, regarding the defendants' care and treatment of her. Accordingly, the complaint fails to state a claim for discrimination in violation of the plaintiff's constitutional rights, and such claims should be dismissed for this reason as well.
State Law Claims
To the extent the plaintiff's complaint is construed to raise any state law claims, the district court should decline to exercise supplemental jurisdiction because the plaintiff's complaint fails to state a federal claim for relief. 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . (3) the district court has dismissed all claims over which it has original jurisdiction . . . ."). See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.").
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the defendants' motion to dismiss (doc. 22) be granted.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge March 28, 2017
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).