OWUSU ANSAGH v. UPMC MEDICAL CENTER

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

NIEYA ANDIE OWUSU ANSAH, )

)

Plaintiff, )

)

v. ) 2:24cv1302

) Electronic Filing

UPMC MEDICAL CENTER and )

JESSICA RUSSELL, )

)

Defendants. )

OPINION

Plaintiff commenced this action by filing a motion to proceed in forma pauperis and

attaching to it a "complaint" against UPMC Medical Center ("UPMC") and Jessica Russell

("Russell") (collectively “defendants”). Plaintiff seeks redress for a delay in implementing an

approved increase in the authorized hours of home health care to be provided to her mother.1

Defendants entered an appearance prior to the court conducting the traditional screening under

28 U.S.C. § 1915(e). Presently before the court is defendants' motion to dismiss for lack of

subject matter jurisdiction and failure to state a claim upon which relief can be granted. For the

reasons set forth below, the motion will be granted.

It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) "[t]he applicable standard of review requires the court to accept as true all

allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view

them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868

F.2d 644, 645 (3d Cir. 1989). Under the Supreme Court's decision in Bell Atlantic Corp. v.

proper only where the averments of the complaint plausibly fail to raise directly or inferentially

the material elements necessary to obtain relief under a viable legal theory of recovery. Id. at

544. In other words, the allegations of the complaint must be grounded in enough of a factual

basis to move the claim from the realm of mere possibility to one that shows entitlement by

presenting "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 570).

"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."

Id. In contrast, pleading facts that only offer "'labels or conclusions' or 'a formulaic recitation of

the elements of a cause of action will not do,'" nor will advancing only factual allegations that

are "'merely consistent with' a defendant's liability." Id. Similarly, tendering only "naked

assertions" that are devoid of "further factual enhancement" falls short of presenting sufficient

factual content to permit an inference that what has been presented is more than a mere

possibility of misconduct. Id. at 1949-50; see also Twombly, 550 U.S. at 563 n. 8 (A complaint

states a claim where its factual averments sufficiently raise a "'reasonably founded hope that the

[discovery] process will reveal relevant evidence' to support the claim.") (quoting Dura

Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347 (2005) & Blue Chip Stamps v. Manor Drug

Stores, 421 U.S. 723, 741 (1975)); accord Morse v. Lower Merion School Dist., 132 F.3d 902,

906 (3d Cir. 1997) (a court need not credit "bald assertions" or "legal conclusions" in assessing a

motion to dismiss) (citing with approval Charles Alan Wright & Arthur R. Miller, FEDERAL

PRACTICE AND PROCEDURE § 1357 (2d ed. 1997) ("courts, when examining 12(b)(6) motions,

have rejected 'legal conclusions,' 'unsupported conclusions,' 'unwarranted inferences,'

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form of factual allegations.'").

This is not to be understood as imposing a probability standard at the pleading stage.

Iqbal, 556 U.S. at 678 ("'The plausibility standard is not akin to a 'probability requirement,' but it

asks for more than a sheer possibility that a defendant has acted unlawfully.'"); Phillips v. County

of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (same). Instead, "[t]he Supreme Court's

Twombly formulation of the pleading standard can be summed up thus: 'stating ... a claim

requires a complaint with enough factual matter (taken as true) to suggest the required element ...

[and provides] enough facts to raise a reasonable expectation that discovery will reveal evidence

of the necessary element.'" Phillips, 515 F.3d at 235; see also Wilkerson v. New Media

Technology Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) ("'The complaint must state

'enough facts to raise a reasonable expectation that discovery will reveal evidence of the

necessary element.'") (quoting Phillips, 515 F.3d at 235) (citations omitted). "Once a claim has

been stated adequately, it may be supported by showing any set of facts consistent with the

allegations in the complaint." Twombly, 550 U.S. at 563.

It also is well settled that pleadings filed by pro se litigants are to be construed liberally.

McNeil v. United States, 508 U.S. 106, 113 (1993); Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir.

2002). And in such circumstances the court has an obligation to "apply the applicable law,

irrespective of whether a pro se litigant has mentioned it by name." Higgins, 293 F.3d at 688

(quoting Holley v. Dept. of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)).

But the above-referenced standards are not to be read as a license to excuse or overlook

procedural shortcomings in pleadings submitted by those who choose to represent themselves.

McNeil, 508 U.S. at 113 ("we have never suggested that procedural rules in ordinary civil

litigation should be interpreted so as to excuse mistakes by those who proceed without counsel").

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Rule of Civil Procedure 8(a). And, while Fed. R. Civ. P. 8(a)(2) requires only a "short and plain

statement of the claims showing that the pleader is entitled to relief," Rule 12(b)(6) is not without

meaning. Krantz v. Prudential Investments Fund Management, 305 F.3d 140, 142 (3d Cir.

2002). It follows that in order to comply with the applicable pleading standards "more detail is

often required than the bald statement by plaintiff that he has a valid claim of some type against

defendant." Id. at 142 - 43 (quoting Charles A. Wright and Arthur R. Miller, FEDERAL PRACTICE

AND PROCEDURE, § 1357 at 318 (2d ed. 1990)). This principle appears to be even more well-

grounded after Twombly.

The facts read in a light most favorable to the plaintiff are as follows. On June 20, 2024,

plaintiff had a meeting with Russell to discuss approving 65 hours of care per week for plaintiff’s

mother. Russell told plaintiff she had to get approval from the "team" prior to increasing the care

and indicated they would be in contact in one week to advise whether the hours were approved.

Eventually, the hours were approved and the care was increased to 65 hours per week. Russell

tried to contact plaintiff’s mother about the approved increase but was unable to make contact

with either plaintiff or her mother. On or about August 2, 2024, plaintiff discovered that the

increase in care had been authorized. She was never contacted by voicemail or written

communication to inform her of the increase. She learned of it when she reached out to Russell

by email.

The complaint asserts jurisdiction under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971).2 It also lists a variety of claims under Title

2 “Bivens is the short-hand name given to causes of action against federal officials for alleged

constitutional violations.” Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018).

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Pay Act of 1963, the Rehabilitation Act of 1973, the Equal Opportunity Act of 1972, the Fair

Labor Standards Act, and a claim for “elder neglect/abandonment.”

As a backdrop to plaintiff's assertions, defendants explain that "UPMC Community

HealthChoices is a managed care plan offered by UPMC For You, Inc. (a subsidiary of UPMC)

that provides Medicaid-funded insurance coverage, including certain coverage for long-term

supports and services ('LTSS') such as in-home care. Ms. Russell is an LTSS Service

Coordinator for UPMC Community HealthChoices, with whom Ms. Owusu Ansah has

corresponded. (See Complaint [ECF No. 6] at 10.). Ms. Owusu Ansah is an in-home care

provider who is compensated by Superior Care Home Care Agency, LLC ('Superior Care') for

delivering personal care services." Motion to Dismiss (Doc No. 11) at ¶¶ 5-7.

Defendants further note that "[a] ll of the claims lodged in the Complaint relate to Ms.

Owusu Ansah’s role as an in-home caretaker and her entitlement to wages for that work." Id. at

¶ 2. And they observe that plaintiff's employment relationship with Superior Care Home Care

Agency is documented by the time sheets plaintiff attached to her motion to proceed in forma

pauperis in Nieya Andie Owusu Ansah v. Superior Home Care Agency, 2:24cv1115 (at Doc.

No. 1-2 in that case).

Defendants maintain that the complaint in this action should be dismissed for the

following reasons. First, they are not subject to suit under 42 U.S.C. § 1983 because they did not

act under color of state law. Second, plaintiff has never been an employee of any UPMC entity

and thus her employment claims fail as a matter of law. Third, plaintiff lacks standing to pursue

relief for any harm allegedly suffered by her mother and a claim for "elder neglect/abandonment"

is not legally cognizable in any event.

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notice of the increase in her mother's care and she has legitimate claims under the Fair Labor

Standards Act and for civil rights violations. In addition, she asserts that her wages were

withheld by "Superior Home Care" and "Skymas Living Solutions." Response in Opposition

(Doc. No. 16) at p. 2. In doing so, she essentially admits that she has employment relationships

with these entities.

Plaintiff's claims will be dismissed for a number of reasons. First, plaintiff has not set

forth sufficient facts to show plausibly that defendants were acting under color of law and

therefore any claim arising under 42 U.S.C. § 1983 or Bivens will be dismissed. Section 1983

provides a cause of action for “any person who has been deprived of rights secured by the

Constitution or laws of the United States by a person acting under color of state law.” Untracht

v. Fikri, 454 F. Supp. 2d 289, 316 (W.D. Pa. 2006) (citing Curley v. Klem, 298 F.3d 271, 277

(3d Cir. 2002)). To recover under Section 1983, a plaintiff must establish “1) that the conduct

complained of was committed by a person acting under color of state law; and 2) that as a result

of this conduct plaintiff was deprived of rights, privileges or immunities secured by the

Constitution or the laws of the United States.” Id. (citing West v. Atkins, 487 U.S. 42, 48

(1988)). If a defendant was not acting under color of state law, a “claim for the violation of civil

rights under § 1983 must fail.” Id.

Acting under color of state law is shown if:

1) the deprivation of federal rights was caused by the exercise of some right or

privilege created by the state or by a person for whom the state is responsible; and

2) the party charged with the deprivation was a person who may fairly be said to

be a state actor.

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of state law and made possible only because the wrongdoer is clothed with the authority of state

law.” Id. at 317.

The inquiry under Bivens similarly is focused on the exercise of authority under color of

law. In this regard, our Court of Appeals has viewed Bivens as indistinguishable from § 1983 in

establishing a damages remedy for unconstitutional action taken under color of federal law.

Fisher v. Hollingsworth, 115 F.4th 197, 209 (3d Cir. 2024).

The Supreme Court has recognized at least three tests to determine whether the actions of

a private person can be attributed to the state:

1) the “close nexus” test, under which the court determines whether the state can

be deemed responsible for the specific conduct at issue, 2) the “symbiotic

relationship” test, in which the court examines the relationship of the parties to

determine whether or not the state has “insinuated itself into a position of

interdependence” with the alleged actor, so as to be considered a joint participant

therein; and 3) the “public function” test, under which the court inquires into

whether the government is using a private party to engage in activities that were

the exclusive prerogative of the state.

Id. (citations omitted).

Under any of these tests, plaintiff has not pled facts to show plausibly that either UPMC

or Russell was acting under color of state or federal law. Of course, UPMC's receipt of federal

Medicare or Medicaid funding and administrative actions leading to the allocation of that

funding are in themselves inadequate to establish action under color of law. See Hodge v. Paoli

Memorial Hospital, 576 F.2d 563, 564 (3d Cir. 1978) ("We have determined to stand with the

vast majority of courts of appeals and hold that the receipt of Hill-Burton construction funding,

Medicare and Medicaid funds, and the existence of tax exemption, as well as state licensing

requirements for nonprofit hospitals, do not constitute state action under 42 U.S.C. § 1983."). It

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any such claim must be dismissed.

Plaintiff's various employment-based claims suffer from similar shortcomings. Plaintiff

has not plausibly shown that she and defendants have or had an employer-employee relationship.

An employment relationship must be established to proceed with each of the various

employment claims proffered by plaintiff. Title VII prohibits an “unlawful employment

practice” by an employer. 42 U.S.C. § 2000e-2. To establish a prima facie case of

discrimination under the Americans with Disabilities Act, a plaintiff must be able to establish

that her or she (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse

employment action as a result of the discrimination. Jakomas v. City of Pittsburgh, 342

F.Supp.3d 632, 642 (W.D. Pa. 2018). The Age Discrimination in Employment Act states that it

is unlawful for an employer to discriminate against a party based on their age. 29 U.S.C. § 623.

Under the Equal Pay Act a plaintiff must demonstrate that “employees of the opposite sex were

paid differently for performing ‘equal work.’” Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d

Cir. 2000) (citing E.E.O.C. v. Delaware Dept. of Health and Social Services, 865F.2d 1408,

1413-14 (3d Cir. 1989)). To establish a prima facie case under the Rehabilitation Act, a plaintiff

must show an employer-employee relationship. See Mengine v. Runyon, 114 F.3d 415, 419 (3d

Cir. 1997) (observing that the Rehabilitation Act was amended in 1992 to incorporate the

standards of the ADA); see also Shiring v. Runyon, 90 F.3d 827, 830 (3d Cir. 1996) (same). The

Equal Employment Opportunity Act of 1972 is not a viable claim alone but instead reflects an

expansion of the Equal Employment Opportunity Commission’s enforcement powers. See Equal

Opportunity Act of 1972. To show a prima facie case under the Fair Labor Standards Act, a

plaintiff must first plead that he or she was an “employee” as defined by the FLSA. Mell v.

GNC Corp., No. 10-945, 2010 U.S. Dist. WL 4668966 at *5 (W.D. Pa. Nov. 9, 2010).

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claim under each of the employment claims alleged here. Plaintiff has not sufficiently pled facts

to show plausibly that UPMC was her employer. In fact, plaintiff has submitted documents

showing that Superior Home Care was her employer, not UPMC. Doc. No. 13 at p. 2. She also

has submitted time sheets in her motion to proceed in forma pauperis in Owusu Ansah v.

Superior Home Care Agency, 2:24cv1115, reflecting that she is employed by Superior Home

Care Agency. See Doc. No. 1-2 in that case. Given this backdrop, plaintiff has not shown that

defendants were her employer for the purposes of establishing the threshold requirement of an

employment relationship in the preceding employment-based claims and as such those claims

also will be dismissed.

Plaintiff’s claim of “elder neglect/abandonment” will be dismissed because plaintiff does

not have standing to bring a negligence claim. To have standing, a plaintiff must have “(1)

suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

578 U.S. 330, 338 (2016). In this regard, a pro se litigant who is “not an attorney may not

represent someone else in federal court.” McCain v. Abraham, 337 Fed. Appx. 141, 142 (3d Cir.

2009) (citing Osei-Afriyie v. Med. Coll. of Penn., 937 F.2d 876, 882 (3d Cir. 1991)). Plaintiff

does not identify any injury to her person or property that may be fairly traced to the challenged

conduct of defendants. As a result, she lacks standing to pursue relief from them for the harms

identified. To the extent that plaintiff’s claims of “elder neglect/abandonment” seek redress for

harm suffered by her mother or other patients, plaintiff likewise does not have standing to bring

this claim. It follows that plaintiff's "elder neglect/abandonment" claim must be dismissed.

The record lacks a sufficient basis to warrant dismissing plaintiff's claims with leave to

amend and therefore plaintiff’s claims will be dismissed with prejudice. Generally, plaintiffs are

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Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002). Amendment is futile “if

the amended complaint would not survive a motion to dismiss for failure to state a claim upon

which relief could be granted.” Cessna v. REA Energy Cooperative, Inc, 258 F.Supp.3d 566,

595 (W.D. Pa. 2017) (quoting Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000)). The court

may dismiss a claim with prejudice when leave to amend would be futile. Grayson, 293 F.3d at

108.

As previously noted, when ruling on a motion to dismiss for failure to state a claim the

court must accept all factual allegations in a complaint as true and view them in a light most

favorable to the plaintiff. Ashcroft, 556 at 678. In this case, even assuming all facts are true and

drawing all reasonable inferences in plaintiff’s favor, plaintiff has failed to state a claim upon

which relief may be granted. What's more, the record makes clear that it is unreasonable to

assume or conclude that she can advance factual allegations that will cure the fundamental

deficiencies highlighted above. First, she cannot amend the complaint to show plausibly that

defendants acted under color of law because, at minimum, there is no conceivable basis to

assume defendants acted under federal or state authority. Second, she cannot amend the

complaint to cure the deficiencies to allege an employer-employee relationship existed between

the parties as required by the preceding employment claims. Lastly, plaintiff is unable to assert a

claim for another person's injuries and has not identified any personal injuries traceable to the

conduct of defendants. Given that the record indicates amending the complaint would be futile,

all of plaintiff’s claims will be dismissed with prejudice.

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claims will be dismissed with prejudice.3 An appropriate order will follow.

Date: August 8, 2025

s/David Stewart Cercone

David Stewart Cercone

Senior United States District Judge

cc: Nieya Andie Owusu Ansah

11 Tecumsah Street

Apartment 206

Pittsburgh, PA 15207

(Sent Via First Class Mail)

Antoinette C. Oliver, Esquire

(Via CM/ECF Electronic Mail)

3 Because defendant’s motion to dismiss will be granted, plaintiff’s motion for entry of default

and motion for summary judgement will be denied as moot.

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