Newton v. Compass Health Network

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ELROY G. NEWTON, )

)

Plaintiff, )

)

v. ) Case No. 4:22-CV-239 AGF

)

COMPASS HEALTH NETWORK, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court sua sponte. Self-represented plaintiff Elroy G. Newton filed

this action on February 25, 2022, against defendants the Compass Health Network, Kevin Schmidt

DDS, Lisa Barnes, Jane Does 1 and 2 and Unknown Office Supervisor. On March 15, 2022, the

Court ordered plaintiff to show cause why this matter should not be dismissed for lack of subject

matter jurisdiction. Plaintiff was given twenty-one (21) days to respond to the Order to Show

Cause. Plaintiff has failed to respond to the Order to Show Cause. As a result, plaintiff’s action

will be dismissed for lack of subject-matter jurisdiction. See Fed.R.Civ.P.12(h)(3).

Plaintiff’s Complaint

Plaintiff filed the instant civil action on February 25, 2022. He claimed that he was bringing

this action pursuant to the following federal laws: “Title 18 U.S.C. § 242 – Deprivation of Rights

Under Color of Law;” Title 18 U.S.C. § 241 – “Conspiracy Against Rights;” Title 18 U.S.C. § 245

“Federally Protected Activities;”– Title 18 U.S.C. § 248 “Freedom of Access to Clinic Entrances;”

Federal Trade Commission Act; Section 5: Unfair or Deceptive Acts or Practice, Fraud, Extortion,

Breach of Fiduciary Duty.

office he was referred to by Compass Health.1 In essence, plaintiff alleged that he was unable to

obtain a dental service at Wentzville Dental for removal of his top teeth in preparation of

procurement of dentures. Plaintiff attached to his complaint a document titled, “Compass Health

Network Title VI Complaint Form.” Plaintiff stated in his complaint as follows: “I felt

discrimination from the 3 main people I came in contact with and these people are listed as the two

receptionist[s] the dental assistant and their supervisor which would make 4.” However, plaintiff

failed to allege a basis for his discrimination.

On March 15, 2022, the Court ordered plaintiff to show cause why this action should not

be dismissed for lack of subject matter jurisdiction. Plaintiff failed to respond. Based on the Court’s

review of plaintiff’s Complaint, as well as plaintiff’s failure to respond to the Order to Show Cause,

the Court will dismiss this action for lack of subject matter jurisdiction.

Discussion

As set for the in the Court’s March 15, 2022 Memorandum and Order to Show Cause, the

Court has a duty to determine its jurisdiction and raise the issue of subject matter jurisdiction sua

sponte, if necessary. See City of Kansas City, Mo. v. Yarco Co., Inc., 625 F.3d 1038, 1040 (8th Cir.

2010). This Court has jurisdiction to hear cases involving the Constitution, laws, or treaties of the

United States under 28 U.S.C. § 1331, and cases where diversity jurisdiction exists under 28 U.S.C.

§ 1332. Plaintiff’s complaint fails to establish this Court’s jurisdiction under either basis.

The Court has diversity jurisdiction under 28 U.S.C. § 1332 over cases where the

citizenship of each plaintiff is different from the citizenship of each defendant, and where the

amount in controversy is more than $75,000. Ryan ex rel. Ryan v. Schneider Nat. Carriers, Inc.,

1Compass Health Network describes themselves as “a nonprofit health care organization that

provides a full continuum of behavioral health services as well as primary and dental health

services throughout Missouri.” See https://compasshealthnetwork.org/services.

defendants are all alleged to be citizens of the State of Missouri.

Federal question jurisdiction under 28 U.S.C. § 1331 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 (8th Cir. 2015). As noted in

the Court’s prior Memorandum and Order, the Court lacks subject matter jurisdiction over the four

different civil rights statutes articulated by plaintiff.

The first three statutes, 18 U.S.C. § 242, “Deprivation of Rights Under Color of Law,” 18

U.S.C. § 241 – “Conspiracy Against Rights” and 18 U.S.C. § 245 “Federally Protected Activities”

cannot provide plaintiff a basis for jurisdiction. Even if plaintiff had properly alleged defendants

violated these statutes, the statutes he relies on are criminal in nature and do not give him a private

right of action. See U.S. v. Wadena, 152 F.3d 831, 846 (8th Cir 1998) (“Courts have repeatedly

held that there is no private right of action under [18 U.S.C.] § 241, even though the statute allows

federal authorities to pursue criminal charges”); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989)

(stating that only a United States prosecutor can bring a complaint under 18 U.S.C. §§ 241- 242,

and that the “statutes do not give rise to a civil action for damages”); Storm-Eggink v. Gottfried,

409 Fed. Appx. 426, 427 (2nd Cir. 2011) (stating that “nothing in the language or structure of [18

U.S.C.] § 241 suggests that Congress intended to create a private right of action”); Robinson v.

Overseas Military Sales Corp., 21 F.3d 502, 511 (2nd Cir. 1994) (stating that 18 U.S.C. § 242 is a

criminal statute that does not provide a private right of action); Davis v. Norwood, 614 Fed. Appx.

602, 605 (3rd Cir. 2015) (stating “that 18 U.S.C. § 242, which criminalizes the deprivation of rights

under color of law, does not provide a private right of action”); Brown v. Express Scripts, 2018

WL 1295482, at *2 (E.D. Mo. 2018) (dismissing plaintiff's claim brought under 18 U.S.C. § 242

because plaintiff had no private right of action); Roberson v. Pearson, 2012 WL 4128303, at *1

basis for any private cause of action”); Banks-Bey v. Acxiom, 2010 WL 395221, at *3 (N.D. Ohio)

(dismissing claim under 18 U.S.C. § 245 because § 245 is a criminal statute for which there is no

private right of action); Wolf v. Jefferson Cty., Mo., 2016 WL 233247, at *2 (E.D. Mo. 2016).

Similarly, plaintiff may not base his case for federal jurisdiction in this matter on claims

brought pursuant to the Federal Trade Commission Act, as there is no private right of action under

the FTC. Holloway v. Bristol-Myers Corp., 485 F.2d 986, 988–89 (D.C. Cir. 1973). Plaintiff also

cannot state a claim under 18 U.S.C. § 248 “Freedom of Access to Clinic Entrances (FACE)”

because the statute prohibits persons from intimidating or interfering with someone obtaining or

providing reproductive health services, which does not apply in this instance as plaintiff was

attempting to obtain dental services. See U.S. v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996).

To the extent plaintiff is asserting federal question jurisdiction under the complaint’s listed

“violations,” he has not shown that his claims arise under: “the False Claims Act2,” Title VII of

2The False Claims Act punishes those who attempt to defraud the federal government. 31 U.S.C.

§ 3729. It authorizes private individuals to bring civil actions in the government’s name, and

such actions are referred to as qui tam actions. In a qui tam action, the private individuals

actually “sue on behalf of the government as agents of the government, which is always the real

party in interest.” United States ex. rel. Rodgers v. State of Ark., 154 F.3d 865, 868 (8th Cir.

1998). Plaintiff has not alleged that defendants attempted to defraud the government.

“HIPAA5,” “the Rehabilitation Act of 19736,” “the HITECH ACT7” or “Section 1981.”8

3The purpose of Title VII is to ensure a workplace environment free of discrimination Ricci v.

DeStefano, 557 U.S. 557, 580 (2009). Because plaintiff was not employed by Compass, he

cannot bring a claim under Title VII.

4While the EMTALA’s civil enforcement provision expressly permits a private cause of action

against a participating hospital, it does not expressly permit a private cause of action against an

individual physician. See 42 U.S.C. § 1395dd(d)(2)(A) (“Any individual who suffers personal

harm as a direct result of a participating hospital’s violation of a requirement of this section may,

in a civil action against the participating hospital, obtain those damages available for personal

injury under the law of the State in which the hospital is located, and such equitable relief as is

appropriate”) (emphasis added); see also, King v. Ahrens, 16 F.3d 265, 270-71 (8th Cir. 1994).

Therefore, plaintiff cannot bring a private claim against defendants.

5HIPAA does not create a private right of action. Trone Health Servs., Inc. v. Express Scripts

Holding Co., 974 F.3d 845, 851 (8th Cir. 2020) (quoting Dodd v. Jones, 623 F.3d 563, 569 (8th

Cir. 2010)).

6Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701–796, prohibits any “program or activity

receiving Federal financial assistance” from discriminating on the basis of disability. “To

establish a prime facie case of disability discrimination under Section 504, the plaintiff must

prove: (1) [he] is a qualified individual with a disability; (2) [he] was denied the benefits of a

program or activity of a public entity receiving federal funds; and (3) [he] was discriminated

against based on [his] disability.” M.P. ex rel. K. & D.P. v. Indep. Sch. Dist. No. 721, New

Prague, Minn., 439 F.3d 865, 867 (8th Cir. 2006). Plaintiff has not alleged he is a qualified

individual with a disability, that defendants were receiving federal funds or that he was denied

benefits on the basis of his disability.

7The Health Information Technology for Economic and Clinical Health Act was passed by

Congress as part of the American Recovery and Reinvestment Act (ARRA) of 2009. Pub. L. No.

111-5, Title XIII, 123 Stat. 115, 226 (2009). ARRA contains incentives related to health care

information technology in general (e.g. creation of a national health care infrastructure) and

contains specific incentives designed to accelerate the adoption of electronic health record (EHR)

systems among providers. The HITECH Act also widens the scope of privacy and security

protections available under HIPAA; it increases the potential legal liability for non-compliance;

and it provides for more enforcement. Like HIPAA, the HITECH Act does not allow an

individual to bring a cause of action against a provider. However, it does allow a state attorney

general to bring an action on behalf of his or her residents. See, e.g., Ciox Health, LLC v. Azar,

435 F.Supp.3d 30, 39-41 (D.C. D.C. 2020); Rios v. Partners in Primary Care, P.A., No. SA-18-

CV-00538-FB, 2019 WL 668509 (W.D. TX Feb. 15, 2019). Thus, plaintiff cannot bring a case

under the HITECH Act in this action.

8Section 1981 provides that all persons within the jurisdiction of the United States shall have

“the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C.

§ 1981(a). To establish a prima facie case for race discrimination under § 1981, “a plaintiff must

Plaintiff has not only failed to set forth the causes of action under each of these laws, but

he has also failed to outline how each of these laws are related to the facts alleged in his complaint.’

Plaintiff cannot simply provide a laundry list of federal laws in his complaint and without more,

state that these laws form the bases for this Court’s jurisdiction.

In light of the aforementioned, the Court will dismiss this action for lack of jurisdiction

pursuant to Federal Rule of Civil Procedure 12(h)(3).

Accordingly,

IT IS HEREBY ORDERED that this action is DISMISSED for lack of subject matter

Jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3).

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

A separate Order of Dismissal shall accompany this Memorandum and Order.

Dated this 19th day of April, 2022.

AUDREY G. FLEISSIG “\

UNITED STATES DISTRICT JUDGE

show (1) he is a member of a protected class, (2) he met his employer’s legitimate expectations,

(3) he suffered an adverse employment action, and (4) the circumstances gave rise to an

inference of discrimination (for example, similarly situated employees outside the protected class

were treated differently).” Young v. Builders Steel Co., 754 F .3d 573, 577 (8th Cir. 2014).

Plaintiff has not alleged he was a member of a protected class or that he was employed by

defendant Compass.

-6-