Fullman v. Laurel Medical Management Group, Civil Action 21-CV-2193

ANDREW FULLMAN, Plaintiff, v. LAUREL MEDICAL MANAGEMENT GROUP, et al., Defendants.

Civil Action No. 21-CV-2193

United States District Court, E.D. Pennsylvania

July 19, 2021

MEMORANDUM

EDUARDO C. ROBRENO, J.

Plaintiff Andrew Fullman, a resident of Philadelphia who is proceeding pro se, filed this civil action alleging claims under 42 U.S.C. §§ 1981, 1983 and 12188 against Laurel Medical Management Group (“LMMG”) and its employee Stanley R. Askin, M.D. (ECF No. 2.) Fullman also seeks leave to proceed in forma pauperis. (ECF No 1.) For the following reasons, the Court will grant Fullman leave to proceed in forma pauperis and dismiss his Complaint.

I. FACTUAL ALLEGATIONS

The factual allegations of the Complaint suggest that Fullman is dissatisfied with a medical report prepared by Stanley R. Askin, M.D. following an independent medical evaluation (“IME”) conducted on May 13, 2019. (ECF No. 2 at 2.)^[1] Prior to the IME, Fullman asserts that he was “misled into believing a recent court order” had directed him to undergo the IME and subsequently received a letter from the “medical provider . . . threatening and intimidating him with a $550.00 penalty fee if he did not attend” the IME. (Id. underlining in original).)

Fullman was examined by Askin on May 13, 2019 in connection with an unrelated personal injury lawsuit against SEPTA. (Id.) Fullman asserts that Askin was compensated by SEPTA to examine him and “falsify a medical report in an attempt to make it appear he was not injured” following a bus incident that had occurred on February 16, 2016. (Id.) Fullman asserts that Askin failed to consider his pain medications, refused to review medical records that Fullman presented to him, and made several factual misreprepresentations and omissions in the IME report concerning Fullman's work status and prior medical treatment. (Id. at 2-3.) Fullman avers that “Askin's medical report has numerous misrepresentations . . . and appears to be more of a legal argument to assist SEPTA rather than an independent medical evaluation.” (Id. at 3.)

Fullman avers that the Defendants have committed fraud, and he has been denied “due process” and “equal protection” in violation of his Fifth, Sixth, and Fourteenth Amendment rights. (Id. at 3-4.) Fullman seeks compensatory and punitive damages in excess of $500, 000 for falsification of the IME report, mental distress, and defamation of character. (Id. at 4.)

II. STANDARD OF REVIEW

The Court will grant Fullman leave to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Conclusory allegations do not suffice. Id. As Fullman is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

Additionally, when allowing a plaintiff to proceed in forma pauperis the Court must review the pleadings and dismiss the matter if it determines, inter alia, that the action fails to set forth a proper basis for this Court's subject matter jurisdiction. 28 U.S.C. § 1915(e)(2)(B); Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Group Against Smog and Pollution, Inc. v. Shenango, Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (explaining that “an objection to subject matter jurisdiction may be raised at any time [and] a court may raise jurisdictional issues sua sponte”). A plaintiff commencing an action in federal court bears the burden of establishing federal jurisdiction. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (“The burden of establishing federal jurisdiction rests with the party asserting its existence.” (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006))).

III. DISCUSSION

A. Claims Raised Under 42 U.S.C. § 1983

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Whether a defendant is acting under color of state law - i.e., whether the defendant is a state actor - depends on whether 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.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal quotations omitted). “To answer that question, [the Third Circuit has] outlined three broad tests generated by Supreme Court jurisprudence to determine whether state action exists: (1) whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and alteration omitted).

Fullman has not alleged facts to support a plausible conclusion that either of the named Defendants meet any of the foregoing tests; therefore, he has failed to establish that either of them are state actors. See Hall v. Horizon House, 414 F.Supp.3d 720, 722 (E.D. Pa. 2019) (concluding that doctor and caseworkers at community-based treatment center were not state actors); Talbert v. Kaplan, Civ. A. No. 12-6533, 2013 WL 4434214, at *4 (E.D. Pa. Aug. 20, 2013) (concluding that private trauma surgeon at medical center was not a state actor for purposes of § 1983 where he was not employed by, or under contract with, the department of corrections or the corporate prison health care provider, and treatment began prior to incarceration); see also Schutt v. Melmark, Inc., 186 F.Supp.3d 366, 376 (E.D. Pa. 2016) (concluding that a residential treatment center was not a state actor despite receipt of state funding); Blum v. Yaretsky, 457 U.S. 991, 1011 (1982) (rejecting argument that nursing homes were state actors in light of “state subsidization of the operating and capital costs of the facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State”); Klavan v. Crozer-Chester Med. Ctr., 60 F.Supp.2d 436, 443 (E.D. Pa. 1999) (“[D]efendants' receipt of government funding, even if combined with [extensive regulation], does not render defendants state actors, regardless of which test we employ.”). Accordingly, the named Defendants are not subject to suit under § 1983. Nor is there any other plausible basis for a federal claim against the Defendants.

B. Remaining Federal Claims

Fullman has failed to articulate any basis for a claim under 42 U.S.C. § 1981. Section 1981 prohibits race discrimination in the making and enforcement of contracts and the right to sue and give evidence. See 42 U.S.C. §1981. To allege a plausible § 1981 claim, a plaintiff must “belong to a racial minority” and demonstrate that the defendants had the “intent to discriminate on the basis of race.” Bell v. City of Milwaukee, 746 F.2d 1205, 1232 (7th Cir. 1984); Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 569 (3d Cir. 2002). Even under the most liberal construction, nothing in Fullman's Complaint provides a basis for concluding that the Defendants were engaged in race-based discrimination, or somehow interfered with the making or enforcing of contracts or Fullman's right to sue and give evidence.

With respect to Fullman's citation to 42 U.S.C. § 12188, Title III of the Americans with Disabilities Act (“ADA”) “prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations” and provides parties who have experienced disability discrimination with a private cause of action for injunctive relief. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005); 42 U.S.C. § 12188 (a)(2). To succeed on a claim under this provision of the ADA, the plaintiff must prove (1) discrimination on the basis of a disability; (2) in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation; (3) by the public accommodation's owner, lessor, or operator. Dempsey v. Pistol Pete's Beef N Beer, LLC, Civ. A. No. 08-5454, 2009 WL 3584597, at *3 (D.N.J. Oct. 26, 2009) (citing Bowers v. Nat. Collegiate Athletic Ass'n, 118 F.Supp.2d 494, 514 (D.N.J. 2000)). Nothing in Fullman's Complaint provides a basis for concluding that the Defendants discriminated against him on account of a disability or restricted his ability to participate in the full and equal enjoyment of public accommodations. Accordingly, Fullman has not presented any plausible basis for a claim pursuant to 42 U.S.C. § 12188.^[2]

C. State Law Claims

Fullman appears to be raising state law claims such as fraud and misrepresentation against the named Defendants. Because the Court has dismissed his federal claims, the Court will not exercise supplemental...