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McDowell v. Our Lady of Lake

United States District Court, M.D. Louisiana

September 19, 2019

GERALD MCDOWELL
v.
OUR LADY OF THE LAKE, ET AL.

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Plaintiff, Gerald McDowell (“Plaintiff”), proceeding pro se and in forma pauperis, filed a Complaint against Our Lady of the Lake, Susan Dixon, Hanover Insurance Company, and Lane Regional Medical Center (“Defendants”).[1] On September 11, 2019, a hearing was held in this matter pursuant to Spears v. McCotter, [2] at which Plaintiff personally appeared (the “Spears hearing”). For the reasons set forth herein, the undersigned recommends that Plaintiff's suit be dismissed.

         I. Background

         Pro se Plaintiff filed his Complaint against Our Lady of the Lake, Susan Dixon, Hanover Insurance Company, and Lane Regional Medical Center on August 28, 2019.[3] Per the Complaint, Plaintiff alleges that certain defendants “did perform retaliatory, negligent, and racketeering against” Plaintiff.[4] Plaintiff seeks “2, 000, 000 for medical racketeering, ” “500, 000 for mental anguish due to him being bipolar and then getting reevaluated and then diagnosed with bipolar…, ” and requests “all the agencies listed come to court at the same time to prove the medical racketeering and the role they played in Geralds [sic] suffering.”[5] An “Emergency Complaint” is attached to the Complaint in which Plaintiff seems to question “the negotiating process” relative to an insurance claim.[6]

         During the Spears hearing, the Court asked Plaintiff to explain the basis for his Complaint. Plaintiff explained that he filed a claim against an urgent care clinic located at 1401 North Foster Drive (which appears to be affiliated with defendant, Our Lady of the Lake) because a stitch was left in his wrist. Plaintiff stated that he believes Defendants retaliated against him for making a claim (related to the stitch) by murdering his grandfather, Willie Tate. Plaintiff also complained that the insurance policy number included the “sign of the beast” (i.e., the policy number included “666”) but that Plaintiff did not realize that initially because he only knew the claim number. Following the Spears hearing, Plaintiff filed, inter alia, a “Motion for a Settlement Judgment Emergency Relief and Notification Required”[7] wherein Plaintiff referenced certain additional state and federal statutes.

         II. Law and Analysis

         A. Plaintiff has not Established that this Court has Subject Matter Jurisdiction

         During the Spears hearing, the Court explained that, unlike state district courts, which are courts of general jurisdiction and may therefore hear all types of claims, federal courts may only entertain those cases over which there is federal subject matter jurisdiction. Federal subject matter jurisdiction may be established in two ways. This Court has subject matter jurisdiction over “civil actions arising under the Constitution, laws, or treatises of the United States.”[8] This Court also has subject matter jurisdiction over civil actions where the amount in controversy exceeds $75, 000.00 exclusive of interest and costs and the parties are completely diverse (i.e., all plaintiffs are citizens of a different state than all defendants).[9] The burden of establishing federal subject matter jurisdiction is on the party asserting it (here, Plaintiff).[10] A court may raise on its own at any time the issue of whether subject matter jurisdiction exists.[11]

         1. Alleged Federal Claims

         Plaintiff references 42 U.S.C. § 1985 in the title of his Complaint, and other federal statutes in Plaintiff's later filing. “‘Title 42 U.S.C. § 1985, part of the Civil Rights Act of 1871, creates a private civil remedy for three prohibited forms of conspiracy to interfere with civil rights under that section.' Subsection 3 prohibits a conspiracy to deprive any person or class of persons of the equal protection of the law, or of equal privileges and immunities under the law. ‘To state a claim under § 1985(3), a plaintiff must allege facts demonstrating (1) a conspiracy; (2) for the purpose of depriving a person of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or a deprivation of any right or privilege of a citizen of the United States.' Additionally, the conspiracy must have a class or race-based animus.”[12]Even to the extent Plaintiff has attempted to allege a conspiracy, [13] he has failed to state which of his constitutional rights were violated. Further, Plaintiff has failed to allege that the purpose of the conspiracy was to deprive him of equal protection of laws based on racial animus or some other protected characteristic. Indeed, Plaintiff has alleged that the conspiracy was in retaliation for what appears to have been his malpractice claim.[14]

         Similarly, none of the federal statutes referenced in Plaintiff's later pleading[15] establish federal subject matter jurisdiction. 42 U.S.C. § 2000h-2, allowing intervention by the Attorney General in suits “seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution” when the Attorney General “certifies that the case is of general public importance, ” and 42 U.S.C. § 2000b, relative to civil actions by the attorney general, do not establish private rights of action.[16] Plaintiff also refers to 42 U.S.C. § 2000a-2, which prohibits any person from “withhold[ing], deny[ing], or attempt[ing] to withhold or deny, or deprive or attempt to deprive any person of any right or privilege secured by section 2000a or 2000a-1 of this title.” Section 2000a provides, in part, that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.”[17] Section 2000a-1 provides, in part, that “[a]ll persons shall be entitled to be free, at any establishment or place, from discrimination.”[18] Plaintiff has not explained how these provisions apply to his claim, and in any event, while 42 U.S.C. § 2000a-3 provides a private right of action for an individual seeking prospective relief, Plaintiff has not sought such relief here.[19] Based on a review of the Complaint, as amended, Plaintiff has not established subject matter jurisdiction under 28 U.S.C. § 1331.[20]

         2. Other claims

         Plaintiff's Complaint raises possible state law claims of retaliation and fraudulent inducement. As Plaintiff has not established subject matter jurisdiction under 28 U.S.C. § 1331, Plaintiff must establish that this Court has subject matter jurisdiction under 28 U.S.C. § 1332. Plaintiff's allegations may satisfy the amount in controversy requirement for jurisdiction under 28 U.S.C. § 1332.[21] However, Plaintiff does not adequately allege his own citizenship or the citizenship of the Defendants. During the Spears hearing, Plaintiff confirmed that he is a citizen of Louisiana. It appears that at least one of the ...


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