ROSE, JR. v. GUANOWSKY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES E. ROSE, JR., :

Plaintiff, :

:

v. : CIVIL ACTION NO. 21-CV-0875

:

GLENN GUANOWSKY, ESQ., :

Defendant. :

MEMORANDUM

SCHMEHL, J. /s/ JLS NOVEMBER 17, 2021

This matter comes before the Court by way of a Complaint (ECF No. 2) submitted by pro

se Plaintiff James E. Rose, Jr., a regular, and prolific, litigant in this Court, against Glenn

Guanowsky, Esq., Deputy General Counsel for Litigation and Risk Management with the Lehigh

Valley Health Network (“LVHN”). Also before the Court is Rose’s Motion for Leave to

Proceed In Forma Pauperis (ECF No. 1). For the following reasons, the Court will grant Rose

leave to proceed in forma pauperis and dismiss his Complaint with prejudice for failure to state a

claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. FACTUAL ALLEGATIONS

Rose’s Complaint in this action is a ten-page, single-spaced typed document that is

largely not set forth in numbered paragraphs. The majority of Rose’s Complaint attempts to set

forth a chronological account of the events at issue by describing the content of approximately

12-15 different letters exchanged between Rose, Defendant Guanowsky, non-party Dr. Jennifer

O. Langstengel, and other non-parties in the fall of 2020. (See ECF No. 2 at 2-5). Rose attached

nearly forty pages of these letters as Exhibits to his Complaint. (See ECF No. 2-1 at 2-39.)

Despite Rose’s attempts to provide the Court with the necessary factual allegations and

background information in his case, the factual basis for Rose’s claims is disorganized and

unclear. The Complaint contains many long, confusing, narratives about Rose’s medical

treatment by Dr. Langstengel and what impact that may or may not have had on Rose’s handling

of retail theft charges he faced in the Lehigh County Court of Common Pleas.

However, having reviewed the Complaint and the attached letters in detail, the Court has

discerned the following relevant factual background in this case. Initially, it appears that Dr.

Langstengel, a doctor of internal medicine employed by LVHN, was Rose’s personal physician

for an unspecified period until approximately October or November of 2020. (ECF No. 2 at 2.)

During the time that Dr. Langstengel treated Rose, she prescribed Rose several medications,

including a prescription for irbesartan to treat Rose’s high blood pressure. (Id.) However, at

some point before October 22, 2020, Rose attempted to obtain a refill of his irbesartan

prescription but he was informed by the pharmacist at Walgreens that an individual by the name

of “Min” from Dr. Langstengel’s office “had cancelled” his prescription. (Id.) It appears that as

a result, Rose was left without his blood pressure medication for about four to five days leading

up to October 22, 2020. (ECF No. 2-1 at 4.)

As the Court understands Rose’s allegations, the fact that he was without his blood

pressure medication for a period up to and including October 22, 2020 is relevant because Rose

entered into a plea agreement on the retail theft charge on that date. Specifically, public records

reflect that Rose entered a guilty plea on October 22, 2020 to one count of retail theft by under

ringing in violation of 18 Pa. S. A. § 3939(a)(4). See Commonwealth v. Rose, MJ-31302-NT-

0000399-2020 (C.P. Lehigh County). Rose alleges that because he was not on his blood pressure

medicine during the October 22, 2020 proceedings in Lehigh County, he was “a hot mess[,]” that

he “did not have all [his] faculties[,]” and that he was not of “normal mind” at the time. (ECF

No. 2-1 at 4.) Rose claims that he “was very, very dizzy” on that day and “got confused” during

those proceedings – thinking that the charge against him was being dropped and that pleading to

a summary offense meant he would only get “a citation, like a ticket.” (Id.) Rose contends that

because he was not “of sound body and sound mind[,]” he “ended up [p]leading guilty to a

Summary Offense that [he] did not do.”1 (Id.)

A few weeks later, on or about November 3, 2020, Rose filed a motion in the Lehigh

County Court of Common Pleas seeking to withdraw his guilty plea. See Commonwealth v.

Rose, CP-38-MD-0001962-2020, (C.P. Lehigh County). Shortly before he filed that motion, it

appears that Rose contacted Dr. Langstengel by letter dated November 2, 2020 regarding “Blood

Pressure Verification[.]” (ECF No. 2-1 at 4.) In that letter, Rose specifically asked Dr.

Langstengel for “a statement . . . verifying that without that medication there is no way [he] can

be mentally stable” and “verify[ing] that [he] was without [his] medicine during the course of

this [October 22, 2020] Proceeding.” (Id.) After receipt of this letter, it appears that Dr.

Langstengel informed Rose by letter dated November 10, 2020 that she would no longer

continue treating him as a patient. (ECF No. 2 at 3.) Rose, who claims he did not understand

why Dr. Langstengel was “kicking [him] out of the Practice[,]” continued writing letters to Dr.

Langstengel about her decision to terminate him as a patient and his prior request for a statement

verifying the blood pressure medication issues. (ECF No. 2-1 at 5-8, 11.) Rose wrote directly to

the CEO of LVHN on several occasions, and cc’d the CEO on several of his letters to Dr.

Langstengel. (Id. at 9, 12.)

1 It appears that Rose was represented by an attorney at the time he entered his guilty plea on

October 22, 2020. (See ECF No. 2-1 at 9) (“I allowed my Attorney to talk me into Pleading

Guilty to a Summary Offense which I knew nothing about.”).)

After several weeks of letters from Rose to Dr. Langstengel and the CEO of LVHN,

Defendant Guanowsky, in his role as Deputy General Counsel for Litigation and Risk

Management, sent a letter to Rose dated November 23, 2020. (Id. at 10.) In that letter,

Guanowsky informed Rose that he was responding on behalf of LVHN’s “Senior Leadership”

with respect to Rose’s request for a new primary care provider and explained that it was Rose’s

sole responsibility to find a new provider. (Id.) Guanowsky also advised Rose that he was “not

to communicate further with members of Senior Leadership regarding these matters” and that

any “further communication [would] be deemed harassment” requiring Guanowsky’s office to

take “necessary measures.” (Id.) Guanowsky’s November 23, 2020 letter appears to have

prompted Rose to send multiple letters to Guanowsky, Dr. Langstengel, and others – most of

which assert Rose’s belief that Guanowsky was attempting to infringe on Rose’s First

Amendment rights and his belief that he is being “mistreated” because he is Black.2 (See Id. at

13-19, 21-35.)

Rose contends that as a results of these events, he is now without a doctor to treat him for

various illnesses. (ECF No. 2 at 5.) Rose claims that Defendant Guanowsky “had no legal

2 In response to Rose’s continuing correspondence, Guanowsky wrote another letter to Rose

dated December 9, 2020 which provides in pertinent part:

As stated in my letter dated November 23, 2020 you were directed to

stop harassing our Senior Leadership in regards to Dr. Langstengel’s decision

to stop being your provider. The reasons are well known to you. You were

non-compliant with monitoring. You subsequently sought to have Dr.

Langstengel make a false statement to the Court after she made the medical[ly]

appropriate decision not to prescribe dangerously high doses of blood pressure

medication given your non-compliance.

For these reasons, Dr. Langstengel could not maintain a therapeutic relationship

with you and discharged you as a patient. Please be advised that legal action will be

taken if you make any further attempt to communicate with our Senior Leadership.

(ECF No. 2-1 at 20.)

authority to write any threatening letters to” Rose, an elderly Black man, and that Guanowsky

“displays . . . how White Supremacy and white Racism is enforced in Lehigh County, PA and in

particular, at LVHN.” (Id. at 8.) Rose seeks an order against Defendant Guanowsky for

“violating Plaintiff’s Civil Rights” and seeks an award of $250,000 in punitive damages and

$250,000 in nominal damages for these “flagrant Civil Rights Violations.” (Id.)

II. STANDARD OF REVIEW

The Court will grant Rose leave to proceed in forma pauperis because it appears that he

is not capable of paying the fees to commence this civil action. Accordingly, Rose’s Complaint

is subject to 28 U.S.C. § 1915(e)(2)(B)(ii), 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). “At this early stage of the litigation,’ ‘[the Court

will] accept the facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences

in [the plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . .

contains facts sufficient to state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366,

374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)).

Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As Rose is proceeding pro se, the

Court construes his allegations liberally. Vogt v. Wetzel, 8 F. 4th 182, 185 (3d Cir. 2021)

(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III. DISCUSSION

Rose repeatedly alleges that the Complaint in this case is “for Federal Civil Rights

Violations[,]” (see ECF No. 2 at 1, 2, 8), but he explicitly disclaims this action as one brought

pursuant to 42 U.S.C. § 1983. (See id. at 1) (“This is not a Claim Under Title 42 SS 1983[.]”)

Rather, Rose seeks to bring claims pursuant to 42 U.S.C. §§ 1981, 1985, 1986. (Id. at 2.) The

Court address each in turn.

A. Rose’s Claims Under § 1981

Section 1981 prohibits race discrimination in the making and enforcement of contracts.

See 42 U.S.C. § 1981(a) (“All persons within the jurisdiction of the United States shall have the

same right in every State and Territory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and proceedings for the security of persons

and property as is enjoyed by white citizens, and shall be subject to like punishment, pains,

penalties, taxes, licenses and exactions of every kind, and to no other.”). This Reconstruction-

era statute, along with several others, was enacted to effectuate the aims of the Thirteenth and

Fourteenth Amendments to the Constitution. Brown v. Philip Morris Inc., 250 F.3d 789, 796-97

(3d Cir. 2001) (noting that the legislative history of § 1981, derived from the Civil Rights Act of

1866 and from the reenactment of Section 1 of the 1866 Act in 1870, makes clear Congress’s

intent to enact “sweeping legislation implementing the [T]hirteenth [A]mendment to abolish all

the remaining badges and vestiges of the slavery system”) (quoting Mahone v. Waddle, 564 F.2d

1018, 1030 (3d Cir. 1977)). To state a claim under § 1981, a plaintiff “must allege facts in

support of the following elements: (1) [that plaintiff] is a member of a racial minority; (2) intent

to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or

more of the activities enumerated in the statute[,] which includes the right to make and enforce

contracts . . . .” Brown, 250 F.3d at 797 (alterations in original) (quoting Yelverton v. Lehman,

No. Civ. A. 94-6114, 1996 WL 296551, at *7 (E.D. Pa. June 3, 1996), aff’d. mem., 175 F.3d

1012 (3d Cir. 1999)).

Rose’s Complaint asserts that Defendant Guanowsky is a “White Racist” who is

“attempting to practice jiggaboo law” because Guanowsky believes he can “treat . . . [Rose] like

[Rose] [is] no more than a ‘stupid N[*&&$^]’.”3 (ECF No. 2 at 6.) Rose contends that in the

November 23, 2020 letter, Guanowsky “threatened” that if Rose exercised his First Amendment

Rights by “contacting a White Man for help then the ‘N[*&&$^]’ man should be arrested for

harassment when this retarded Defendant knows full well his remarks clearly indicate that he is a

White Racist.” (Id.) Throughout the remainder of the Complaint, Rose asserts that Guanowsky

is a white racist and a white supremacist who is attempting to restrict Rose’s First Amendment

rights in an effort to enforce white racism and white supremacy. (Id. at 6-8.) Rose concludes by

comparing himself to George Floyd because, like Floyd, Rose “cannot breathe because, [he] has

been stripped of his Civil Rights and Liberties.”4

Despite Rose’s repeated use of racial epithets and language designed to describe racial

animus, Rose does not actually allege that Defendant Guanowsky committed any intentional act

to discriminate against him based on his race with respect to the end of Rose’s treatment by Dr.

Langstengel or Rose’s need to obtain a new primary care provider. Rose alleges that as an

3 For purposes of this Memorandum, the Court will refrain from the use of racial epithets and

simply note that they are present in Rose’s Complaint.

4 The letters Rose attached as exhibits to his Complaint also contain repeated use of racial

epithets and make similar conclusory, impertinent allegations against Defendant Guanowsky,

and include the use of inflammatory language, like references to the “Ku Klux Klan”, the “Third

Reich”, and what “Joesef Mangela [sic]. . . did to the Jews[.]” (See generally ECF No. 2-1 at 13-

17, 21-23, 28-34.)

African American he suffered unlawful discrimination, (see ECF No. 2 at 6-8), but he does not

explain what facts or circumstances support his conclusion. Rather, Rose relies on conclusory

allegations of generalized racial bias, which are insufficient to satisfy the elements of a claim

under § 1981. See Spence v. Caputo, Civ. A. No. 12-1077, 2015 WL 630294, at *27 (W.D. Pa.

Feb. 12, 2015) (dismissing § 1981 and § 1982 claims because plaintiff’s claims were mere

speculation and did not allege which of the enumerated rights under these sections were

allegedly violated, which defendants were involved, the dates that any violations occurred, nor

were facts alleged to show that any deprivation of the enumerated rights was racially motivated);

see also Davis v. Samuels, 962 F.3d 105, 115-16 (3d Cir. 2020) (affirming dismissal on the

merits of plaintiff’s § 1981 claim against federal defendants for failure to state a plausible claim

of race discrimination). Moreover, Rose’s Complaint lacks any plausible allegation that the

alleged discrimination concerned one or more of the activities enumerated in the statute, such as

the making or enforcement of contracts. Accordingly, Rose’s claim has failed to state a plausible

claim under § 1981. This claim will be dismissed with prejudice as any attempt to amend would

be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002) (stating that

leave to amend claims dismissed on screening should be generally be granted “unless

amendment would be inequitable or futile.”)

B. Rose’s Claims Under § 1983

Although Rose explicitly disclaims that he seeks to bring this action pursuant to § 1983,

the allegations of the Complaint, construed liberally, could fairly be understood as an attempt to

bring a claim against Defendant Guanowsky for violating Rose’s First Amendment rights by

somehow attempting to restrict or limit Rose’s speech to various employees at LVHN pursuant

42 U.S.C. § 1983, the vehicle by which federal constitutional claims may be brought in federal

court. Section 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

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).

Pursuant to § 1983, action under color of state law requires that the one liable under that statute

have exercised power possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law. Harvey v. Plains Twp. Police Dep’t, 635

F.3d 606, 609 (3d Cir. 2011).

“It is axiomatic that the First Amendment governs only state action, not the actions of

private [actors and] entities.” Max v. Republican Comm. of Lancaster Cty., 587 F.3d 198, 200

(3d Cir. 2009). The Supreme Court has made clear that “a private entity may qualify as a state

actor when it exercises ‘powers traditionally exclusively reserved to the state.’” See Manhattan

Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (citing Jackson v. Metro. Edison

Co., 419 U.S. 345 (1974)). Moreover, “the fact that the government licenses, contracts with, or

grants a monopoly to a private entity does not convert the private entity into a state actor – unless

the private entity is performing a traditional, exclusive public function. The same principle

applies if the government funds or subsidizes a private entity.” Id. at 1931-32 (internal citations

omitted). Private hospitals, no matter how much federal funding they may receive, are generally

not state actors for purposes of constitutional questions. See, e.g. Thomas v. Nationwide

Children’s Hosp., 882 F.3d 608, 612 (6th Cir. 2018).

To the extent Rose’s Complaint could be construed as seeking to bring a § 1983 claim

against Guanowsky for allegedly violating Rose’s First Amendment rights (or any other

constitutional rights), Rose has not plausibly alleged facts demonstrating that Guanowsky is a

state actor. The Complaint and the attached Exhibits make clear that Guanowsky is Deputy

General Counsel for Litigation and Risk Management LVHN. LVHN is a private healthcare

system, and there are no allegations in the Complaint that LVHN has any connection to a state,

county, or local government entity which suggest that its private business conduct can be treated

as that of the state. The same is true with respect to Guanowsky in his role as Deputy General

Counsel for LVHN. Rose does not allege that Guanowsky has any connection to a state, county,

or local government entity. Moreover, even assuming the LVHN receives any federal funding,

that alone is insufficient to convert Guanowsky into a state actor for purposes of a § 1983 claim.

Accordingly, any claims Rose seeks to bring against Guanowsky under § 1983 will be dismissed

with prejudice pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim. Rose will not be

granted to leave to amend on this issue as any attempt to amend would be futile.

C. Rose’s Conspiracy Claims Under §§ 1985 and 1986

Rose asserts that he is bringing claims pursuant to §§ 1985 and 1986. (ECF No. 2 at 2.)

42 U.S.C. § 1985(3) creates a cause of action against persons who “conspire . . . for the purpose

of depriving, either directly or indirectly, any person or class of persons of the equal protection

of the laws, or of equal privileges and immunities under the laws. . . .” 42 U.S.C. § 1985(3). To

state a plausible claim under § 1985(3) a plaintiff must allege the following elements: (1) a

conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive,

directly or indirectly, any person or class of persons of the equal protection of the laws; (3) an act

in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any

right or privilege of a citizen of the United States. Lake v. Arnold, 112 F.3d 682, 685 (3d

Cir.1997). Significantly, “‘[t]he [statutory] language requiring intent to deprive of equal

protection . . . means that there must be some racial . . . invidiously discriminatory animus

behind the conspirators’ action.’” United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-

CIO v. Scott, 463 U.S. 825, 835 (1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102

(1971). Moreover, a plaintiff must allege specific facts to sustain a § 1985(3) claim:

With near unanimity, the courts have rejected complaints containing mere

conclusory allegations of deprivations of constitutional rights protected under §

1985(3). A conspiracy claim based upon § 1985(3) requires a clear showing of

invidious, purposeful and intentional discrimination between classes or

individuals.

Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972); see also Grigsby v. Kane, 250 F. Supp.

2d 453, 458 (M.D. Pa. 2003) (“[O]nly allegations which are particularized, such as those

addressing the period of the conspiracy, the object of the conspiracy, and actions taken in

furtherance of the conspiracy, will be deemed sufficient.”)

“[T]o properly plead an unconstitutional conspiracy, a plaintiff must assert facts from

which a conspiratorial agreement can be inferred.” Great W. Mining & Mineral Co. v. Fox

Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). “[A] bare assertion of conspiracy will not

suffice.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “[Section] 1986 constitutes an

additional safeguard for those rights protected under 42 U.S.C. § 1985, and ‘transgressions of §

1986 by definition depend on a preexisting violation of § 1985.” Clark v. Clabaugh, 20 F.3d

1290, 1295 (3d Cir. 1994) (quoting Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980)).

In other words, “to maintain a cause of action under § 1986, the plaintiffs must show the

existence of a § 1985 conspiracy.” Id. at 1295 n.5.

Rose’s Complaint does not allege a plausible claim under § 1985. At the outset, the

Court notes that the Complaint itself does not even contain the word conspiracy or conspire, and

makes only one passing reference to § 1985 in its jurisdictional paragraph.5 Rose has not alleged

a single factual detail regarding the formation of a conspiracy between Defendant Guanowsky

and any other individual. Leaving aside Rose’s conclusory allegations, impertinent

characterizations, and his use of racial epithets and other inflammatory language in the

Complaint, Rose completely fails to specify the nature and purpose of any alleged conspiracy

against him, nor does he plausibly allege a conspiracy against him based on his race or

membership in a class. Accordingly, these claims are also implausible and will be dismissed

with prejudice. Cf. Balthazar v. Atl. City Med. Ctr., 279 F. Supp. 2d 574, 592 (D.N.J. 2003),

aff’d, 137 Fed. Appx. 482 (3d Cir. 2005) (dismissing § 1985 conspiracy claim for failure to state

a claim where plaintiff, an indigent, African-American woman, asserted that a medical center

and several doctors conspired to deprive her of her Medicaid benefits because she did “not

provide a factual basis for her claims that the alleged conspiracy was motivated by ‘racial ... or

otherwise class-based’ animus.”). Because Rose has failed to allege the existence of a § 1985

5 In Rose’s December 15, 2020 letter to Defendant Guanowsky, Rose states that Guanowsky is

“no more than a coconspirator who had a meeting of the minds with Dr. Langstengel to come up

with this diabolical defense by stating a ‘N[*&&#$’ wanted a white doctor to tell the [Lehigh

County Common Pleas] Court a lie.” (ECF No. 2-1 at 33.) This passing reference to

Guanowsky as a “coconspirator” and a “meeting of the minds” between Guanowsky and Dr.

Langstengel in a letter predating the initiation of this litigation is insufficient to allege a plausible

claim under § 1985.

conspiracy, he also cannot maintain a plausible § 1986 claim and this claim will similarly be

dismissed with prejudice pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim. As any

attempt to amend either the § 1985 or § 1986 claim would be futile, Rose will not be granted

leave to amend these claims.

IV. CONCLUSION

For the foregoing reasons, the Court will grant Rose leave to proceed in forma pauperis,

dismiss his Complaint with prejudice in its entirety pursuant to § 1915(e)(2)(B)(ii) for failure to

state a claim. He will not be given leave to file an amended complaint, because it appears that

any attempt to cure the defects in his claims would be futile. An appropriate Order follows.

BY THE COURT:

/s/ Jeffrey L. Schmehl

JEFFREY L. SCHMEHL, J.