White v. Verzola

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MARY L. WHITE, )

Plaintiff, )

V. No. 4:20-cv-00295-RLW

EDUARDO D. VERZOLA,

Defendant,

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Mary L. White for leave to

commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having

reviewed the financial information submitted in support, the Court finds that the motion should be

granted. Additionally, for the reasons discussed below, plaintiff will be directed to show cause

why her complaint should not be dismissed for lack of subject matter jurisdiction.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Jd. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. /d. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8" Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8" Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit

of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the

plaintiff's complaint in a way that permits his or her claim to be considered within the proper legal

framework. Solomon vy. Petray, 795 F.3d 777, 787 (8" Cir. 2015). However, even pro se complaints

are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.

Aubuchon, 623 F.2d 1282, 1286 (8 Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8"

Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just

because an additional factual allegation would have formed a stronger complaint”). In addition,

affording a pro se complaint the benefit of a liberal construction does not mean that procedural

rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed

without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff is a self-represented litigant who brings this civil action against Dr. Eduardo D.

Verzola of Festus, Missouri. (Docket No. 1 at 2). She asserts that this Court has federal question

jurisdiction based on “[t]he Bill of Rights.” (Docket No. 1 at 3). The basis of the complaint is

plaintiff's contention that Dr. Verzola committed medical malpractice.

In the “Statement of Claim,” plaintiff alleges that she was harmed by Dr. Verzola while

being treated by him in 2012. (Docket No. 1 at 5). She claims that Dr. Verzola failed to warn her

about “the danger of the treatment,” that Dr. Verzola failed to warn her of “the F.D.A. warnings,”

that Dr. Verzola “failed to stop [and] cease treatment,” that Dr. Verzola failed to address her

condition, and that Dr. Verzola never should have placed her “on this treatment due to [her]

diagnoses.” Plaintiff also states that Dr. Verzola “failed to have [her] under mental health while

on this treatment.”

As a result, plaintiff states that she has scarring over her entire body, and that she has

suffered “mental abuse.” She further claims to suffer from depression, anxiety, loss of hope, loss

of joy, loss of happiness, the loss of her job, the loss of her savings, and the loss of love and

companionship. (Docket No. | at 6). Plaintiff seeks to have all her medical bills paid for the rest

of her life. (Docket No. 1 at 5). She also requests “actual damages [in the amount of] 5,0000 [sic]

million.” (Docket No. 1 at 6).

Discussion

Plaintiff brings this civil action against Dr. Eduardo Verzola, accusing him of medical

malpractice. For the reasons discussed below, plaintiff will be directed to show cause why this

case should not be dismissed for lack of subject matter jurisdiction.

A. Subject Matter Jurisdiction

Subject matter jurisdiction refers to a court’s power to decide a certain class of cases.

LeMay vy. U.S. Postal Serv., 450 F.3d 797, 799 (8" Cir. 2006). “Federal courts are not courts of

general jurisdiction; they have only the power that is authorized by Article III of the Constitution

and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986). See also Gunn vy. Minton, 568 U.S. 251, 256 (2013) (“Federal courts are

courts of limited jurisdiction, possessing only that power authorized by Constitution and statute”).

The presence of subject matter jurisdiction is a threshold requirement that must be assured in every

federal case. Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8" Cir. 1990). See also

Sanders vy. Clemco Indus., 823 F.2d 214, 216 (8" Cir. 1987) (“The threshold requirement in every

federal case is jurisdiction and we have admonished the district court to be attentive to a

satisfaction of jurisdictional requirements in all cases”). As such, the issue of subject matter

jurisdiction may be raised at any time, by any party or the court. Gray v. City of Valley Park, Mo.,

567 F.3d 976, 982 (8" Cir. 2009).

Federal courts have subject matter jurisdiction over both federal question cases and

diversity of citizenship cases. See Auto-Owners Ins. Co. v. Tribal Court of Spirit Lake Indian

Reservation, 495 F.3d 1017, 1020 (8 Cir. 2007) (finding that subject matter jurisdiction is lacking

if neither diversity of citizenship nor federal question jurisdiction applies); and McLaurin v. Prater,

30 F.3d 982, 984-85 (8" Cir. 1994) (noting that Congress has directed that district courts shall

have jurisdiction in both federal question and diversity cases). Here, plaintiff asserts that this Court

has federal question jurisdiction over her case. However, as discussed below, it does not appear

that either federal question jurisdiction or diversity jurisdiction is present.

B. Federal Question Jurisdiction

Federal question jurisdiction gives district courts “original jurisdiction over civil actions

arising under the Constitution, laws, or treaties of the United States.” Griffioen v. Cedar Rapids &

Iowa City Ry. Co., 785 F.3d 1182, 1188 (8 Cir. 2015). See also 28 U.S.C. § 1331. Whether a

claim arises under federal law is determined by reference to the “well-pleaded complaint.” Great

Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329 (8™ Cir. 2016).

The well-pleaded complaint rule provides that jurisdiction exists only when a federal question is

presented on the face of a plaintiffs properly pleaded complaint. Markham v. Wertin, 861 F.3d

748, 754 (8" Cir. 2017). See also Thomas v. United Steelworkers Local 1938, 743 F.3d 1134, 1139

(8" Cir. 2014) (“Under the well-pleaded complaint rule, a federal question must exist on the face

of the plaintiff's properly pleaded complaint in order to establish federal question subject matter

jurisdiction”). Plaintiff's complaint must establish “either that federal law creates the cause of

action or that the plaintiff's right to relief necessarily depends on the resolution of a substantial

question of federal law.” Williams v. Ragnone, 147 F.3d 700, 702 (8'" Cir. 1998).

Here, plaintiff asserts that her case implicates a federal questions because “[t]he Bill of

Rights” is at issue. To be sure, a claim brought pursuant to 42 U.S.C. § 1983 “arises under federal

law and will support federal-question jurisdiction pursuant to § 1331.” Convent Corp. v. City of

North Little Rock, Ark., 784 F.3d 479, 483 (8" Cir. 2015). Plaintiff, however, has not stated a §

1983 claim. That is, she has not presented facts demonstrating that any of her constitutional rights

were violated. See Wong v. Minnesota Dep’t of Human Servs., 820 F.3d 922, 934 (8" Cir. 2016)

(“To state a claim under section 1983, a plaintiff must allege the violation of a right secured by the

Constitution and laws of the United States”). Plaintiff has also failed to show that Dr. Verzola is a

state actor. See Zutz v. Nelson, 601 F.3d 842, 848 (8"" Cir. 2010) (stating that for purposes of a §

1983 claim, “a plaintiff must allege sufficient facts to show that the defendant(s) acted under color

of state law”). As such, § 1983 does not provide a jurisdictional basis.

Aside from plaintiff's reference to the Bill of Rights, she does not provide any support for

the proposition that federal question jurisdiction exists. In particular, she makes no reference to

any specific federal statutes or federal treaties. Though she mentions the Bill of Rights, she does

not identify any specific provisions of the United States Constitution. Plaintiff also acknowledges

that she is not suing the Federal Government, a federal official, or a federal agency. In short,

plaintiff has not shown that this case arises under federal law, or that federal question jurisdiction

exists over this matter.

C. Diversity Jurisdiction

“Under 28 U.S.C. § 1332(a), district courts have original diversity jurisdiction over civil

actions when the matter in controversy exceeds $75,000, without considering interest and costs,

and when the citizenship of each plaintiff is different from the citizenship of each defendant.” Ryan

ex rel. Ryan v. Schneider Nat. Carriers, Inc., 263 F.3d 816, 819 (8 Cir. 2001). A complaint

making a good faith allegation of the jurisdictional amount is sufficient to confer jurisdiction.

Scottsdale Ins. Co. v. Universal Crop Prot. All., LLC, 620 F.3d 926, 931 (8" Cir. 2010). However,

a “complaint will be dismissed if it appears to a legal certainty that the claim is really for less than

the jurisdictional amount.” Id. See also Kopp v. Kopp, 280 F.3d 883, 884 (8 Cir. 2002). “The

legal certainty standard is met where the legal impossibility of recovery is so certain as virtually

to negative the plaintiff's good faith in asserting the claim.” Peterson v. The Travelers Indem. Co.,

867 F.3d 992, 995 (8"" Cir. 2017).

“Complete diversity of citizenship exists where no defendant holds citizenship in the same

state where any plaintiff holds citizenship.” OnePoint Solutions, LLC v. Borchert, 486 F.3d 342,

346 (8" Cir. 2007). For purposes of diversity, state citizenship requires an individual’s physical

presence in the state coupled with an indefinite intention to remain there. Blakemore v. Missouri

Pac. R.R. Co., 789 F.2d 616, 618 (8" Cir. 1986).

Here, plaintiff has asserted an amount in controversy that exceeds the jurisdictional

threshold. However, she has failed to establish the diversity of the parties. Specifically, she states

that both her and Dr. Verzola are Missouri citizens. Therefore, she has failed to demonstrate the

existence of diversity jurisdiction in this action.

D. Order to Show Cause

As discussed above, plaintiff has not adequately provided a basis for this Court’s

jurisdiction. If the Court determines at any time that it lacks subject matter jurisdiction, the action

must be dismissed. See Fed. R. Civ. P. 12(h)(3). Therefore, plaintiff will be ordered to show cause

within thirty (30) days of the date of this order as to why this case should not be dismissed for lack

of subject matter jurisdiction. Failure to comply with this order will result in the dismissal of this

action without prejudice and without further notice.

E. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 3). In civil cases, a pro se

litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721

F.3d 940, 942 (8 Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998)

(stating that “[a] pro se litigant has no statutory or constitutional right to have counsel appointed

in a civil case”). Rather, a district court may appoint counsel in a civil case if the court is

“convinced that an indigent plaintiff has stated a non-frivolous claim...and where the nature of the

litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.”

Patterson v. Kelley, 902 F.3d 845, 850 (8" Cir. 2018). When determining whether to appoint

counsel for an indigent litigant, a court considers relevant factors such as the complexity of the

case, the ability of the pro se litigant to investigate the facts, the existence of conflicting testimony,

and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437

F.3d 791, 794 (8" Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. Plaintiff has demonstrated, at this point, that she can adequately present her

claims to the Court. Additionally, plaintiff is being directed to show cause as to why this case

should not be dismissed for lack of subject matter jurisdiction. The Court will entertain future

motions for appointment of counsel as the case progresses, if appropriate.

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that plaintiff is required to show cause in writing and

within thirty (30) days of the date of this order why this action should not be dismissed for lack

of subject matter jurisdiction.

IT IS FURTHER ORDERED that failure to comply with this order will result in the

dismissal of this case without prejudice and without further notice.

Dated this of Gilly. 2020.

Feri Mite

RONNIE L. WHITE

UNITED STATES DISTRICT JUDGE