KOSIBA v. THOMAS JEFFERSON UNIVERSITY HOSPITAL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BOZENA KOSIBA, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-2730

:

THOMAS JEFFERSON UNIVERSITY :

HOSPITAL., et al. :

Defendants. :

MEMORANDUM

GOLDBERG, J. SEPTEMBER 20, 2023

Bozena Kosiba, a citizen of New Jersey, has filed a pro se Complaint on July 14, 2023,

alleging civil rights violations and state law claims. The Complaint names as Defendants Thomas

Jefferson University Hospital (“TJUH”), and its Emergency Department in Philadelphia, Thomas

Jefferson Hospital in Cherry Hill, New Jersey (“TJCH”), the Cherry Hill Police Department, T.J.

Maxx, Lori Greenberg & Associates, Wainco LLC, Virtua Our Lady of Lourdes Hospital

(“Virtua”), and America’s Best Contacts and Eyeglasses (“ABCE”).1 (Complaint (“Compl.”)

(ECF No. 2)). Kosiba also seeks leave to proceed in forma pauperis. (ECF No. 1.) For the

following reasons, the Court will grant Kosiba leave to proceed in forma pauperis and dismiss the

Complaint.

1 Kosiba listed this Defendant in the caption as “Amerycan Best Contact Eyeglasses.” Since

she uses “America’s Best Contacts and Eyeglasses” in the body of the Complaint, the Clerk will

be directed to correct the spelling on the docket. Kosiba also listed Wainco LLC as a Defendant

in the caption of her Complaint, but the Clerk failed to list that entity as a Defendant on the docket.

The Clerk will be directed to correct this error.

I. FACTUAL ALLEGATIONS2

Kosiba’s allegations are not easily understood. She cites the Fifth, Sixth, and Thirteenth

Amendments, the Americans with Disabilities Act (“ADA”), as well as the Health Insurance

Portability and Accountability Act of 1996 (“HIPAA”) as a basis for federal law claims, and also

seeks to invoke the Court’s diversity jurisdiction to bring claims under state law. (Compl. at 3-4.)

Kosiba asserts that she has been followed, held as a slave, and been a victim of domestic violence,

that her husband disappeared, that her physical appearance has been changed, and that her

daughter’s physical appearance was changed so that Kosiba could not recognize her. (Id. at 3-4.)

She alleges she was subjected to harassment by an x-ray technician at TJCH during an emergency

visit on April 12, 2021. (Id. at 8.) Apparently, she was at TJCH because something was sprayed

at her while she was at work at T.J. Maxx. (Id.) She also alleges that the next day, April 13, 2021,

she was harassed by a manager at T.J. Maxx named Pam O’Neil. (Id.; see also id. at 4 (stating

“someone at work was hostile and I got harassed by manager Pamela Oneil [indecipherable]

obscene picture.”).) Apparently, Kosiba believes she is “owned” by a person named Mr. Bari,

who purchased her from the “Wainco Dynasty.” (Id. at 8.) She also appears to claim her parents

are Queen Elizabeth and a Russian prince named Felix Ysupov. (Id. at 9.)

Kosiba visited the TJUH Emergency Department on June 3, 2021, due to neck pain. (Id.)

She also visited TJCH on March 29, 2021, due to a seizure and skin lesions, but they failed to

diagnose her problem. (Id.) Rather, she asserts that they fraudulently made a diagnosis of a

psychological disorder, possibly due to reports from police about stalking and harassment. (Id.)

2 The facts set forth in this Memorandum are taken from Kosiba’s Complaint (ECF No. 2),

which consists of the Court’s form complaint available for use by pro se litigants to file cases, as

well as handwritten pages. The Court adopts the pagination assigned to the entire Complaint by

the CM/ECF docketing system.

She was again treated at TJUH in Philadelphia on October 7, 2021, due to a work incident at T.J.

Maxx involving a seizure, a bone fracture in her face, a myocardial infarction, and

cardiomyopathy. (Id. at 10.) She claims she was again fraudulently diagnosed with a

psychological disorder. (Id.) She was treated at TJUH for five days in July 2021 for a myocardial

infarction, and a psychologic disorder. (Id.) She asserts she slept the entire time she was a patient

and suffered a battery when doctors performed an operation on her eye orbits that made her eyes

smaller and closer together and left her with brown discoloration and bruises and a hump in her

nose. (Id. at 10-11.) On the last day she was there, a cleaning person allegedly spread poison ivy

on her bed sheets, resulting in a rash that caused her to return to the hospital. (Id. at 11.) Kosiba

next visited TJCH on July 27, 2021, where she was again allegedly fraudulently diagnosed with a

mental health problem. (Id. at 12.) She asserts that hospital employees failed to observe her,

resulting in injury. (Id.) She goes on to assert that this injury was connected to the disappearance

of her husband in 2009 and obstruction of justice by the Cherry Hill Police Department. (Id. at

13.) Kosiba apparently asserts that her daughter’s appearance changed in connection to her

daughter being isolated from her by the Cherry Hill Board of Education due to racial segregation.

(Id.)

In December 2021, she was again allegedly harassed in T.J. Maxx and was wrongly fired,

apparently in violation of the ADA. (Id. at 14.) She could not receive unemployment benefits and

could not pay her rent. (Id.) On March 3, 2023, her landlord began an eviction proceeding and

was represented by Defendant Lori Greenberg and Associates. (Id.)

Kosiba asserts a claim against ABCE arising from a visit on July 1, 2022 to its location in

Cherry Hill. She alleges she was followed, the appointment was unprofessional, and she suffered

malpractice. (Id. at 15.) She later returned the eyeglasses she received and was again followed by

young people. (Id.) Finally, on September 13, 2022, Kosiba was allegedly taken to Virtua in

Camden, New Jersey, where she was misdiagnosed with COVID, when she claims that she had

actually been pepper sprayed. (Id.) Kosiba seeks money damages on all claims.

II. STANDARD OF REVIEW

The Court grants Kosiba leave to proceed in forma pauperis. Accordingly, 28 U.S.C. §

1915(e)(2)(B) requires the Court to dismiss the Complaint if it is frivolous, malicious, or fails to

state a claim. A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). The use of the term “frivolous” in § 1915 “embraces not

only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. Section 1915

accords judges “the unusual power to pierce the veil of the complaint’s factual allegations and

dismiss those claims whose factual contentions are clearly baseless[,]” including claims that

describe “fantastic or delusional scenarios[.]” Id. at 327. “[A] finding of factual frivolousness is

appropriate when the facts alleged rise to the level of the irrational or the wholly incredible[.]”

Denton v. Hernandez, 504 U.S. 25, 33 (1992). A claim is legally baseless if it is “based on an

indisputably meritless legal theory.” Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995).

The Court must also 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); Talley v. Wetzel, 15 F.4th

275, 286 n.7 (3d Cir. 2021). “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 Kosiba is proceeding pro se, the Court construes her 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)).

Finally, 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. 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

Kosiba seeks to assert constitutional claims, federal statutory claims, and state law claims.

Preliminarily, the Court notes that many of the facts that Kosiba alleges rise to the level of the

irrational or the wholly incredible. Denton, 504 U.S. at 33. This includes her claims that she was

held as a slave, she is of royal parentage, a hospital cleaning person spread poison ivy on her bed

sheets, and her daughter’s physical appearance was changed so that Kosiba would not recognize

her. The Court will dismiss claims based on these frivolous assertions—specifically the

conclusory claim against Wainco LLC that it held her in slavery—and will conduct a statutory

screening of her remaining claims.

A. Constitutional Claims

The vehicle by which constitutional claims may be asserted in federal court is 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).

1. The Cherry Hill Police Department

Kosiba has named the Cherry Hill Police Department as a Defendant. Following the

decision in Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978), courts concluded that a

police department is a sub-unit of the local government and, as such, is merely a vehicle through

which the municipality fulfills its policing functions. See e.g. Johnson v. City of Erie, Pa., 834 F.

Supp. 873, 878-79 (W.D. Pa. 1993). Thus, while a municipality may be liable under § 1983, a

police department, as a mere sub-unit of the municipality, may not. Id.; Martin v. Red Lion Police

Dept., 146 F. App’x. 558, 562 n.3 (3d Cir. 2005) (per curiam) (stating that police department is

not a proper defendant in an action pursuant to 42 U.S.C. § 1983 because it is a sub-division of its

municipality); Thompson v. State of N.J., No. 05-4420, 2005 WL 2406100, at *3 (D.N.J. Sept. 28,

2005) (holding that a New Jersey police department is not a “person” subject to suit under 42

U.S.C. § 1983). Therefore, the Cherry Hill Police Department is not a proper defendant in this

case under § 1983 and is dismissed with prejudice.

2. Lori Greenberg & Associates

Kosiba has also named Lori Greenberg & Associates as a Defendant, apparently because

the law firm represented her landlord in an eviction proceeding. To the extent Kosiba seeks to

assert a constitutional claim against the law firm, the claim is dismissed with prejudice. “Attorneys

performing their traditional functions will not be considered state actors [subject to liability for

constitutional claim under § 1983] solely on the basis of their position as officers of the court.”

Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999). See also Clark v.

Punshon, 516 F. App’x 97, 99 (3d Cir. 2013) (per curiam) (noting that a court-appointed attorney

is not a state actor for purposes of § 1983); Webb v. Chapman, 852 F. App’x 659, 660 (3d Cir.

2021) (per curiam) (“[A]ttorneys representing individuals in criminal proceedings generally are

not state actors for purposes of § 1983.”); Singh v. Freehold Police Dep’t, No. 21-10451, 2022

WL 1470528, at *2 (D.N.J. May 10, 2022) (“Plaintiff[‘s] dissatisfaction with the representation

provided by Mr. Moschella does not provide a basis for a civil rights claim against him.”). Rather,

“before private persons can be considered state actors for purposes of section 1983, the state must

significantly contribute to the constitutional deprivation.” Angelico, 184 F.3d at 278 (quoting

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1266 (3d Cir. 1994)). Since Kosiba

fails to allege any facts under which the Court could plausibly hold that Lori Greenberg &

Associates was a state actor due to the representation of a private client in an eviction proceeding,

the claim is dismissed with prejudice.

3. TJUH, its Emergency Department, TJCH, T.J. Maxx, Virtua, and

ABCE

To the extent Kosiba seeks to assert constitutional claims against TJUH, its Emergency

Department and TJCH, as well as T.J. Maxx, and Virtua, these claims are also not plausible.

Whether a private entity 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 United States Court of Appeals for 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). “Action taken by private entities with

the mere approval or acquiescence of the State is not state action.” Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 52 (1999). Rather, to support a finding of state action, “the government

must be ‘responsible for the specific conduct of which the plaintiff complains.’” Borrell v.

Bloomsburg Univ., 870 F.3d 154, 160 (3d Cir. 2017) (quoting Blum v. Yaretsky, 457 U.S. 991,

1004 (1982)). The test imposed for determining whether a private party is exercising a traditionally

exclusive public function is “a rigorous standard that is rarely satisfied for while many functions

have been traditionally performed by governments, very few have been exclusively reserved to the

State.” Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 165-66 (3d Cir. 2001) (internal quotations

and alterations omitted) (holding that private school at which plaintiff was placed as a minor by

the Department of Human Services was not a state actor); see also Leshko, 423 F.3d at 347 (foster

parents were not exercising a traditionally exclusive public function and were not state actors

despite contractual relationship with social services agency). Because Kosiba fails to provide a

factual basis upon which the Court could plausibly conclude that TJUH, its Emergency

Department and TJCH, as well as T.J. Maxx, Virtua, and ABCE qualify as state actors subject to

liability under § 1983, her claims against these entities must be dismissed.

B. HIPAA Claim

Kosiba also cites the HIPAA law as a basis for federal jurisdiction. However, there is no

federal private right of action under HIPAA. See Dodd v. Jones, 623 F.3d 563, 569 (8th Cir.

2010); Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007); Acara v.

Banks, 470 F.3d 569 (5th Cir. 2006); Altavilla v. Geisinger Wyoming Valley Med. Ctr., No. 17-

1704, 2018 WL 1630961, at *2 (M.D. Pa. Mar. 12, 2018), report and recommendation

adopted, 2018 WL 1629870 (M.D. Pa. Apr. 4, 2018) (‘“The ability to bring an enforcement action

to remedy HIPAA violations, and ensure that a healthcare provider is HIPAA compliant, lies

within the exclusive province of the Secretary of Health and Human Services, not the hands of

private citizens.’” (quoting Polanco v. Omnicell, Inc., 988 F. Supp. 2d 451, 469 (D.N.J. 2013)).

Accordingly, all claims for money damages asserting violations of HIPAA are dismissed with

prejudice.

C. Other Federal Claims

Kosiba names T.J. Maxx and asserts that she was formerly employed there. She claims

she was harassed by a manager, which the Court understands as an attempt to assert a hostile

workplace claim, and that she was fired in violation of the ADA. Kosiba’s employment

discrimination claims are not plausible.

To plead a hostile work environment claim, a plaintiff must allege: (1) she suffered

intentional discrimination because of membership in a protected class; (2) the discrimination was

severe or pervasive; (3) the discrimination detrimentally affected her; (4) it would have

detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer

liability is present. Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416,

428 (3d Cir. 2020) (alterations, internal quotations, and citations omitted); Felder v. Penn Mfg.

Indus., Inc., 303 F.R.D. 241, 243 (E.D. Pa. 2014). However, “Title VII imposes no general civility

code” as it “does not reach the ordinary tribulations of the workplace, for example, sporadic use

of abusive language or generally boorish conduct.” Vance v. Ball State Univ., 570 U.S. 421, 452

(2013) (internal quotations omitted).

Kosiba fails to allege that she is a member of a protected class or that the complained about

unlawful discrimination occurred because of her membership in a protected class. In the absence

of such facts, Kosiba has not plausibly alleged claims for employment discrimination, hostile work

environment, or retaliation. See, e.g., Favors v. Sec’y United States Dep’t of Veterans Affs., 695

F. App’x 42, 44 (3d Cir. 2017) (per curiam) (affirming dismissal of Title VII race discrimination

claim where plaintiff “included no allegations whatsoever linking his termination to his race”);

Santos, 593 F. App’x at 119 (affirming dismissal of national origin discrimination claim where

plaintiff had “submitted nothing but the naked assertion that he was discharged because he is

Honduran”).

To state a claim for employment discrimination under the ADA, a plaintiff must allege that

she is a “qualified individual with a disability” within the meaning of the ADA, and that she

suffered an adverse employment decision as a result of the discrimination. Tice v. Ctr. Area

Transp. Auth., 247 F.3d 506, 511-12 (3d Cir. 2001). Kosiba has also failed to allege any facts to

support a plausible ADA claim. Accordingly, any federal law claim asserted against T.J. Maxx is

also dismissed.

D. State Law Claims

Kosiba also asserts state law claims against each Defendant. Because the Court has

dismissed her federal claims, the Court will not exercise supplemental jurisdiction under 28 U.S.C.

§ 1367(c) over any state law claims. Accordingly, the only independent basis for jurisdiction over

any such claims is 28 U.S.C. § 1332(a), which grants a district court jurisdiction over a case in

which “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and

costs, and is between . . . citizens of different States.”

Section 1332(a) requires “‘complete diversity between all plaintiffs and all defendants,’

even though only minimal diversity is constitutionally required. This means that, unless there is

some other basis for jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any

defendant.’” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015) (quoting

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) and Zambelli Fireworks Mfg. Co. v. Wood,

592 F.3d 412, 419 (3d Cir. 2010) (internal footnotes omitted)). An individual is a citizen of the

state where he is domiciled, meaning the state where he is physically present and intends to remain.

See Washington v. Hovensa LLC, 652 F.3d 340, 344 (3d Cir. 2011). It is the plaintiff's burden to

establish diversity of citizenship, see Gibbs v. Buck, 307 U.S. 66, 72 (1939); Quaker State Dyeing

& Finishing Co., Inc. v. ITT Terryphone Corp., 461 F.2d 1140, 1143 (3d Cir. 1972) (stating that,

in diversity cases, the plaintiff must demonstrate complete diversity between the parties and that

the amount in controversy requirement has been met); Jackson v. Rosen, C.A. No. 20-2842, 2020

WL 3498131, at *8 (E.D. Pa. June 26, 2020).

Kosiba alleges that she is a citizen of New Jersey. (Compl. at 4.) While she has checked

the box on the form used to file her Complaint indicating that she seeks to invoke the Court’s

diversity jurisdiction, she has provided Pennsylvania addresses for TJUH and its Emergency

Department only, while providing New Jersey addresses for each of the other Defendants. This

suggests that Kosiba and some, if not all, of the Defendants may be New Jersey citizens.

Accordingly, Kosiba has not sufficiently alleged that the parties are diverse for purposes of

establishing the Court’s jurisdiction over any state law claims she intends to pursue. These claims

will be dismissed without prejudice for lack of subject matter jurisdiction. Kosiba will be

permitted to amend these claims if she can cure the noted deficiency.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Kosiba’s Complaint in part with prejudice

and in part without prejudice. All claims brought pursuant to HIPAA, all claims against Wainco

LLC based the allegation that it held Kosiba in slavery, and all constitutional claims against the

Cherry Hill Police Department and Lori Greenberg & Associates are dismissed with prejudice

since amendment of these claims would be futile. See Grayson v. Mayview State Hosp., 293 F.3d

103, 112-113 (3d Cir. 2002) (stating that dismissals of claims do not require leave to amend where

the attempt “is inequitable or futile”). The constitutional claims against TJUH, its Emergency

Department, TJCH, T.J. Maxx, Virtua, and ABCE are dismissed without prejudice and Kosiba will

be given leave to file an amended complaint if she is capable of curing the defects identified in

these constitutional claims. The balance of the claims against T.J. Maxx concerning Kosiba’s

employment are also dismissed without prejudice and with leave to amend. Her state law claims

are dismissed for lack of subject matter jurisdiction. An appropriate Order with additional

information on amendment follows.3

3 Because Kosiba’s Complaint is dismissed, her motion to appoint counsel will be denied.