United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, UNITED STATES DISTRICT JUDGE.
September 5, 2017, Doris Hughes (“Hughes”) filed
a pro se complaint naming Jose Raymon, Ryan Hunley,
Jeffrey Whiting, Touchette Regional Hospital and
Barnes-Jewish Hospital as defendants (Doc. 2). Hughes has
also filed a motion and affidavit seeking leave to proceed
in forma pauperis (“IFP”) (See
Docs. 3 & 4), a Motion for Service of Process at
Government Expense (Doc. 5), and a Motion for Appointment of
Counsel (Doc. 7).
1915 is meant to ensure that indigent litigants have
meaningful access to the federal courts, and it applies to
non-prisoner plaintiffs and prisoners alike. Neitzke v.
Williams, 490 U.S. 319, 324 (1989); Floyd v. United
States Postal Serv., 105 F.3d 274, 275-77 (6th Cir.
1997) (overruled on other grounds) (“[T]he only logical
interpretation of the statute is that non-prisoners have the
option to proceed in forma pauperis under §
1915(a).”). Under Section 1915, an indigent party may
commence a federal court action, without paying required
costs and fees, upon submission of an affidavit asserting
inability “to pay such fees or give security
therefor” and stating “the nature of the action,
defense or appeal and the affiant's belief that the
person is entitled to redress.” 28 U.S.C. §
Court's inquiry does not end there, however, because
Section 1915(e)(2) requires careful threshold scrutiny of the
complaint filed by a plaintiff seeking to proceed IFP. A
court can dismiss a case if the court determines that the
action is clearly frivolous or malicious, fails to state a
claim, or is a claim for money damages against an immune
defendant. 28 U.S.C. § 1915(e)(2)(B); see also
Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003)
(“District judges have ample authority to dismiss
frivolous or transparently defective suits spontaneously, and
thus save everyone time and legal expense.”). Thus,
resolution of the motion for IFP requires the undersigned
District Judge to review the allegations of the complaint.
reviewing the complaint filed by Hughes, the undersigned is
cognizant of the imperative that courts construe pro
se claims generously. Buechel v. United States,
746 F.3d 753, 758 (7th Cir. 2014). The Court accepts the
factual allegations as true, liberally construing those
allegations in the plaintiff's favor. Turley v.
Rednour, 729 F.3d 645 (7th Cir. 2013). Conclusory
statements and labels are not enough. The complaint must
allege enough facts to “state a claim to relief that is
plausible on its face.” Alexander v. United
States, 721 F.3d 418, 421 (7th Cir. 2013). An action or
claim is frivolous if “it lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
to the allegations within the complaint, Defendants subjected
Hughes to severe pain and suffering in violation of the
Eighth Amendment when they placed into her hip (or failed to
remove from her hip) a defective Stryker implant device.
Hughes alleges that Defendant Jose Raymon put the defective
implant in her hip at Barnes Jewish Hospital in 2009 and
failed to contact her after the device was recalled to
properly remove it. Hughes alleges that Ryan Hunley conducted
a second operation at Touchette Regional Hospital and
intentionally failed to remove the implant. Hughes alleges
that all defendants “where[sic] acting in the color of
state law when they subjected [Hughes] to a defective device,
failed to remove it from her hip, failed to advice[sic] her
of it being defective device and the bodily harm it would
cause to her by it not being removed from her body, and the
bodily harm it would severely cause her to be permanently
harm[sic] and subjected to pain and suffering.” (Doc.
2, p. 6-7). Hughes asks the Court for injunctive relief in
the form of a court order that orders surgery to remove the
device and awards her damages in the amount of ten million
dollars from each defendant.
alleges in a conclusory manner that Defendants were acting
under the “color of state law” (Doc. 2, p. 6).
The Constitution prevents the government from taking certain
actions against individuals; it does not generally prevent
individuals, acting as private citizens, from taking certain
actions against others. Thus, claims which seek to vindicate
federal constitutional rights are asserted against
individuals who act under the color of state law for purposes
of a Section 1983 action. See 42 U.S.C. § 1983.
Unless an individual's conduct includes some assertion of
actual or apparent authority granted by the state, he or she
cannot be said to have acted under the color of state law.
See West v. Atkins, 487 U.S. 42, 49-50 (1988)
(“The traditional definition of acting under color of
state law requires that the defendant . . . exercised power
possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
law.”) (internal quotation marks omitted).
does not state a plausible claim for violations of her
constitutional rights by persons acting under the color of
state law. None of the facts alleged in her complaint support
that conclusion or suggest that these defendants, which are
private individuals and entities, might be considered state
actors for purposes of Section 1983.
addition to the named defendants, the narrative of events
also seems to implicate Stryker. To the extent Hughes seeks
to allege a product liability claim against Stryker along
with medical negligence claims against the named defendants,
jurisdiction appears to be lacking because the citizenship of
the parties is not diverse (See Doc. 2, p. 2). The
diversity jurisdiction statute provides that district courts
have subject-matter jurisdiction over civil actions that are
between parties that are citizens of different states.
See 28 U.S.C. § 1332(a). Diversity of
citizenship exists only when no plaintiff and no defendant
are citizens of the same state.
because the Court finds that Hughes's allegations do not
state a plausible claim for relief, the Motion for Leave to
Proceed in forrma pauperis (Doc. 3) is
DENIED, and this action is DISMISSED
without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B). All pending motions are DENIED as
an abundance of caution, the Court advises Hughes as follows.
If Hughes wishes to contest this Order, she has two options.
She can ask the Seventh Circuit to review the Order, or she
can first ask the undersigned to reconsider the Order before
appealing to the Seventh Circuit.
Hughes chooses to go straight to the Seventh Circuit, she
must file a notice of appeal within 60 days from the
entry of judgment or order appealed from. Fed. R. App. P.
4(a)(1)(B). The deadline can be extended for a short time
only if Hughes files a motion showing excusable neglect or
good cause for missing the deadline and asking for an
extension of time. Fed. R. App. P. 4(a)(5)(A), (C); see
also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012)
(explaining the good cause and excusable neglect standards);
Abuelyaman v. Illinois State Univ., 667 F.3d 800,
807 (7th Cir. 2011) (explaining the excusable neglect
other hand, if Hughes wants to start with the undersigned,
she should file a motion to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e). The motion
must be filed within twenty-eight (28) days of the
entry of judgment, and the deadline cannot be
extended. Fed.R.Civ.P. 59(e); 6(b)(2). The motion must also
comply with Rule 7(b)(1) and state with sufficient
particularity the reason(s) that the Court should reconsider
the judgment. Elustra v. Mineo, 595 F.3d 699, 707
(7th Cir. 2010); Talano v. Nw. Med. Faculty Found.,
Inc., 273 F.3d 757, 760 (7th Cir. 2001); see also
Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587,
598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion
to amend judgment, a party must clearly establish (1) that
the court committed a manifest error of law or fact, or (2)
that newly discovered evidence precluded entry of
judgment.”) (citation and internal quotation marks
as the Rule 59(e) motion is in proper form and timely
submitted, the 60-day clock for filing a notice of appeal
will be stopped. Fed. R. App. P. 4(a)(4). The clock will
start anew once the undersigned rules on the Rule 59(e)
motion. Fed. R. App. P. 4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To
be clear, if the Rule 59(e) motion is filed outside the
28-day deadline or “completely devoid of substance,
” the motion will not stop the clock for filing a
notice of appeal; it will expire 60 days from the entry of
judgment. Carlson v. CSX Transp., Inc., 758 F.3d
819, 826 (7th Cir. 2014); Martinez v. ...