Appendix — Schneller v. Crozer Chester Medical Center

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NOT PRECEDENTAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-3855

James D. Schneller, Heirs & Beneficiaries of Marjorie

C. Schneller, by James D. Schneller, Trustee Ad Litem;

Estate Of Marjorie Schneller, by and through James D.

Schneller, Trustee Ad Litem; Marjorie Zitomer,

Executrix of the Estate Of Marjorie Schneller; Estate of

George H. Schneller, by and through Personal

Representative James D. Schneller

Petitioner

Crozer Chester Medical Center, dba Taylor Hospital And

Crozer Keystone Health System; Suburban Pulmonary

Medicine And Principals; Daniel Dupont, D.O.; E.

Heffelfinger, D.O.; Gerald Meis, D.O.; Gurpreet Kochar,

M.D.; Lalitha Gurijala, M.D.; Marjorie Zitomer; G.

Richard Schneller; T. Sergeant Pepper, Esquire;

Herman Mcgill, M.D.; Hepburn, Wilcox, Hamilton &

Putnam, LLP

Respondents

James D. Schneller, Appellant

On Appeal from the United States District Court for the

Eastern District of Pennsylvania

(D.C. Civil Action Nos. 2-06-cv-00698 and 2-08-cv-01479)

District Judge: Honorable Lawrence F. Stengel

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 20, 2010

Before: BARRY, AMBRO and COWEN, Circuit Judges

(Opinion filed: July 20, 2010)

Case: 09-3855 Document: 003110222513 Page: 2 Date

Filed: 07/20/2010

OPINION

PER CURIAM

Pro se appellant James Schneller appeals from an

order of the District Court dismissing his complaint for

lack of subject matter jurisdiction. For the following

reasons we will affirm the judgment of the District

Court. ..

In February 2006, Schneller filed a pro se action

against, inter alia, various health care institutions and

providers, his brother, a lawyer, and a law firm, alleging

violations of his civil rights, breach of contract,

negligence, malpractice, and violations of various state

and federal statutes in connection with his mother’s

death in 2002. See Civil Action E.D. Pa. No. 06-00698.

The District Court dismissed the action based on lack of

jurisdiction before service was perfected, but we vacated

the dismissal on the ground that Schneller should have

been given an opportunity to amend his complaint.

Schneller et al. v. Crozer Chester Medical Center, 276 F.

App’x. 169, 171 (3d Cir. 2008). Rather than amend the

complaint, Schneller initiated a wholly new case with an

identical complaint. See Civil Action No. 09-1479. The

defendants filed motions to dismiss in the latter case; the

District Court construed them as applying to both cases.

The District Court granted the defendants’ motions and

dismissed both complaints for lack of subject matter

jurisdiction.

Schneller filed a motion for reconsideration, which

the District Court denied by order entered June 26,

2009. On July 27, 2009, Schneller filed a motion for leave

to appeal in

forma pauperis. The motion was granted on August 3,

2009, and on September 29, 2009, Schneller filed a notice

of appeal.

If.

We have jurisdiction under 28 U.S.C. § 1291.”

When reviewing an order dismissing a claim for lack of

> Certain of the appellees argue that we do not have

jurisdiction over this appeal Because Schneller’s notice of

appeal was untimely filed. A notice of appeal in a civil

case “must be filed with the district clerk within 30 days

after the Judgment or order appealed from is entered.”

Fed. R. App. P. 4(a)(1)(A). This 30-day limit is

mandatory and jurisdictional. Bowles v. Russell, 551 U.S.

205, 209-10 (2007). The order Schneller seeks to appeal

was entered June 26, 2009. Schneller’s motion for leave

subject matter jurisdiction, we exercise plenary review

over legal conclusions and review findings of fact for

clear error. See White-Squire v. United States Postal

Service, 592 F.3d 453, 456 (3d Cir. 2010). We may affirm

the District Court on any grounds supported by the

record. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir.

2009).

ITT.

Federal courts have limited jurisdiction, and they may

only decide cases as authorized by Congress or the

Constitution. Kokkonen v. Guardian Life Ins. Co. of

America, 511 U.S. 375, 377 (1994). To establish diversity

jurisdiction under 28 U.S.C. §1332(a), the party asserting

jurisdiction must show that there is complete diversity of

citizenship among the parties and an amount in

controversy exceeding $75,000. 28 U.S.C. § 1332(a). The

District Court found no basis for diversity jurisdiction

because Schneller and eleven of the defendants were

residents of Pennsylvania. Id.; see Mennen Co. v. Atl.

to appeal in forma pauperis, which we construe as a

notice of appeal, was filed July 27, 2009, 31 days later.

See L.A.R. 3.4 (“The court will deem an application for

leave to appeal in forma pauperis. . . to be a notice of

appeal if no formal notice has been filed.”). However,

Schneller’s appeal was timely filed because the thirtieth

day fell on a Sunday, and Schneller’s notice of appeal

was filed on Monday, the next business day. See Fed. R.

App. P. 26(a)(1)(3).

Mut. Ins. Co., 147 F.3d 287, 290 (3d Cir. 1998)

(“[J Jurisdiction {under § 1332) is lacking if any plaintiff

and any defendant are citizens of the same state.”).

Schneller has provided no argument or evidence to

suggest otherwise. See Packard v. Provident Nat. Bank,

994 F.2d 1039, 1045 (3d Cir. 1993) (“The person

asserting jurisdiction bears the burden of showing that

the case is properly before the court at all stages of the

litigation.”). Accordingly, we agree with the District

Court that it lacked diversity jurisdiction.

We also agree with the District Court that the

Assisted Suicide Funding Restriction Act of 1997 (the

“Act”), 42 U.S.C. § 14401, et seq., does not provide a

basis for federal question jurisdiction under 28 U.S.C, §

1331. Federal question jurisdiction arises where federal

law creates the cause of action, or where the complaint,

on its face, poses a federal question. Club Comanche,

Inc., v. Gov’t of Virgin Islands, 278 F.3d 250, 259 (3d Cir.

2002). “The question whether a statute creates a cause

of action, either expressly or by implication, is basically a

matter of statutory construction.” Transamerica

Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979).

Thus, “what must ultimately be determined is whether

Congress intended to create the private remedy

asserted.” Id. at 15-16. The stated purpose of the Act is

“to continue current Federal policy by providing

explicitly that federal funds may n:.. be used to pay for

items and services (including

assistance) the purpose of which is to cause (or assist in

causing) the suicide, euthanasia, or mercy killing of any

individual.” 42 U.S.C. § 14401(b). Schneller claims that

certain of the appellees misapplied funds appropriated by

Congress, in violation of the Act, for the purpose of

assisting in causing the death of his mother by

euthanasia, mercy killing and assisted suicide. Even if

Schneller’s claims had a basis in fact, there is nothing in

the structure or language of the Act “either expressly or

by implication,” that shows any intent by Congress to

establish a private cause of action. Transamerica

Mortgage Advisors, 444 U.S. at

15.

On appeal, Schneller argues that the District

Court overlooked as a basis for federal question

jurisdiction his claims under the Comprehensive Drug

Abuse Prevention and Control Act, 21 U.S.C. § 801, et

seq., and claims based on statutes enacted by Congress

regarding medical care and nursing care, including

Medical Requirements for Skilled Nursing Facilities, 42

C.F.R. § 483.10 et seq.. The Comprehensive Drug Abuse

Prevention and Control Act is a statute enforceable only

by the Attorney General and, by delegation, the

Department of Justice. See 21 U.S.C. § 871. There is no

basis for civil liability arising out of this statute.

Schneller’s claims under 42 C.F.R. §§ 483.10, 483.13,

483.15, and 483.25 do not provide a basis for jurisdiction

pursuant to § 1331 because they merely set forth the

requirements that a facility must meet in order to

qualify to participate in Medicare and Medicaid; they do

not confer a private cause of action. Schneller’s

argument that his state law claims based on negligence

per se somehow support a finding of federal question

jurisdiction “in a cumulative respect” is

unpersuasive and unsupported by law. (Appellant’s Brief

14.)

Schneller’s civil rights claims under 42 U.S.C. §§

1983, 1985, and 1986 do contemplate a private cause of

action and therefore confer subject matter jurisdiction on

the court; however, we agree with the District Court that

his § 1983 claim fails because Schneller failed to

demonstrate that the alleged violations were committed

by a person acting under color of state law. See American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)

(“To state a claim for relief in an action brought under §

1983, respondents must establish that they were

deprived of a right secured by the Constitution or laws of

the United States, and that the alleged deprivation was

committed under color of state law.”). In his brief on

appeal, Schneller concedes that “there are no state actors

of any clearly defined sort in this action,” but continues

to press his argument that the private hospital appellees

are state actors because they receive public monies and

tax benefits, they are subject to state and federal

regulation, and their actions are “so entwined with

governmental policies . . . as to become state action

within the Civil Rights Act.” (Appellant’s Brief 22.) This

argument has been considered and repeatedly rejected by

the Supreme Court in similar cases. See Blum v.

Yaretsky, 457 U.S. 991, 1010-11 (1982) (rejecting the

argument that state subsidization of a private nursing

home facility combined with the state licensing and

regulation, converted acts of the homes into state

action); Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982)

(finding that a civil rights action by former teachers

against a private school failed for lack of “state action,”

even where “virtually all of the school’s income was

derived from government funding”); see

also Hodge v. Paoli Memorial Hospital, 576 F.2d 563 (3d

Cir. 1978). We agree with the District Court that

Schneller has not demonstrated that “there is a

sufficiently close nexus between the State and the

challenged action of the regulated entity so that the

action of the latter may be fairly treated as that of the

State itself.” Jackson v. Metropolitan Edison Co., 419

U.S. 345, 351 (1974).

Schneller argues that the District Court should

not have dismissed his complaint without giving him the

opportunity to amend the allegations in his § 1983

claims. If a complaint is vulnerable to dismissal for

failure to state a claim, a district court must first permit

the plaintiff a curative amendment, unless amendment

would be “inequitable or futile.” Alston v. Parker, 363

F.3d 229, 235 (3d Cir. 2004). We agree with the District

Court’s conclusions concerning Schneller’s § 1983

claims. Because Schneller could not present additional

information that would transform his allegations into

viable claims, we conclude that amendment would be

futile and thus will affirm the District Court’s judgment

as to these claims.

Schneller also argues that the District Court

ignored his claims under § 1985 and § 1986. Schneller’s

§ 1985 claim could not survive dismissal because he has

not set out sufficient facts to show that a racial or other

class-based invidious discriminatory animus lay behind

the appellees’ alleged actions and that the alleged

coconspirators “intended to deprive the victim of a right

guaranteed by the Constitution against private

impairment.” Brown v. Philly Morris Inc., 250 F.3d_789,

805 (3d Cir. 2001). Schneller cannot state a § 1986 claim

because a § 1985 violation is a pre-requisite. 42 U.S.C. §

1986. Because

Schneller’s federal claims were all dismissed, the District

Court did not abuse its discretion by refusing to exercise

supplemental jurisdiction over Schneller’s state law

claims. See 28 U.S.C. § 1367(c)(3). In any event, even if

Schneller otherwise stated a claim under §§ 1983, 1985

or 1986, we agree with the District Court that these

claims and the majority of Schneller’s state law claims

are barred by the governing two-year statute of

limitations.* See Lake v. Arnold, 232 F.3d 360, 368 (3d

* The only claims not barred by the statute of limit-ations

were Schneller’s breach of contract claims, over which

Cir. 2000) (holding that actions arising under §§ 1983,

1985 and 1986 are subject to the statute of limitations

prescribed for persona! injury actions in the state in

which the relevant events occurred); 42 Pa. C.S.A. §

0024(2), (7) (providing that personal injury, negligence,

and intentional tort actions in Pennsylvania must be

commenced within two years). °

We also agree that 42 Pa. C.S. § 5535 does not

provide a basis for jurisdiction in this case because it

specifically excludes actions for damages “for injury to

the person or for the death of an individual caused by the

wrongful act or neglect or unlawful violence or

negligence of another.” 42 Pa. C.S. § 5535(2).

IV.

Finding unpersuasive any of Schneller’s

arguments, we will affirm the decision of the District

Court. The parties’ outstanding motions are denied.

the District Court declined to exercise supplemental

jurisdiction.

* Because Schneller’s claims were properly dismissed for

lack of jurisdiction or failure to state a claim, we disagree

with Schneller that it was an abuse of discretion for the

District Court to dismiss all claims against all

defendants, including Gurpreet Kochar, who had not

filed a motion to dismiss. (Appellant’s Brief 17.)

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-3855

James D.Schneller, Heirs & Beneficiaries of Marjorie

C. Schneller, by James D. Schneller, Trustee Ad Litem;

Estate Of Marjorie Schneller, by and through James D.

Schneller, Trustee Ad Litem; Marjorie Zitomer,

Executrix of the Estate Of Marjorie Schneller; Estate of

George H. Schneller, by and through Personal

Representative James D. Schneller

Petitioner

Crozer Chester Medical Center, dba Taylor Hospital And

Crozer Keystone Health System; Suburban Pulmonary

Medicine And Principals; Daniel Dupont, D.O.; E.

Heffelfinger, D.O.; Gerald Meis, D.O.; Gurpreet Kochar,

M.D.; Lalitha Gurijala, M.D.; Marjorie Zitomer; G.

Richard Schneller; T. Sergeant Pepper, Esquire;

Herman Megill, M.D.; Hepburn, Wilcox, Hamilton &

Putnam, LLP

Respondents

James D. Schneller, Appellant

On Appeal from the United States District Court for the

Eastern District of Pennsylvania

(D.C. Civil Action Nos. 2-06-cv-00698 and 2-08-cv-01479)

District Judge: Honorable Lawrence F. Stengel

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 20, 2010

Before: BARRY, AMBRO and COWEN, Circuit Judges

(Opinion filed: July 20, 2010)

JUDGMENT

This cause came to be considered on the record from

the United States District Court for the Eastern District

of Pennsylvania and was submitted pursuant to Third

Circuit LAR 34.1(a) on July 10, 2010. On consideration

whereof; it is now hereby

ORDERED and ADJUDGED by this Court that thc

judgment of the District Court entered March 19, 2009,

be and the same is hereby affirmed. Costs taxed against

Appellant. All of the above in accordance with the

opinion of this Court.

ATTEST:

/s/ Marcia M. Waldron

Clerk

DATED: 20 July 2010

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES D. SCHNELLER, et al.,

CIVIL ACTION .

Plaintiffs

Vv.

NO.06-0698

CROZER CHESTER MEDICAL

CENTER, et al.,

Defendants

JAMES D. SCHNELLER, et al CIVIL ACTION

Plaintiffs

NO.08-1479

CROZER CHESTER MEDICAL

CENTER, et al.,

Defendants

FILED March 19, 2009

ORDER

AND NOW, this 19" day of March, 2009, upon

consideration of the defendants' motions to dismiss filed

in civil action No. 08-1479 (Documents# 24, 27, 35) the

plaintiffs responses thereto (Documents#43, 44, 45),

the defendants' reply brief, (Documents#48) and after a

status hearing with all parties present, it is hereby

ORDERED that the motions are GRANTED in their

entirety.

IT IS FURTHER ORDERED that all remaining

motions in these cases are DENIED as moot. The Clerk

of Court is directed to mark both of these actions

CLOSED for all purposes.

BY THE COURT

/s/

LAWREMCE F STENGEL, J.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES D. SCHNELLER, et al.,

CIVIL ACTION .

Plaintiffs

NO.06-0698

CROZER CHESTER MEDICAL

CENTER, et al.,

Defendants

JAMES D. SCHNELLER, et al CIVIL ACTION

Plaintiffs

vi.

NO.08-1479

CROZER CHESTER MEDICAL

CENTER, et al.,

Defendants

FILED March 19, 2009

MEMORANDUM

STENGEL, J. March 19, 2009

Almost four years after the death of his elderly

mother on March 31, 2002, James D. Schneller and

allegedly four other plaintiffs’ filed a pro se action

against several defendants” whom be claims are legally

responsible. The genesis of the case appears to be

medical and legal malpractice as a result of the allegedly

negligent services rendered to Mr. Schneller's parents

during the last few months of their lives. In fact, in the

paragraphs introducing ten of the twelve defendants, the

plaintiff indicates that 'this action is an action in

’ These plaintiffs include: (1) Heirs and beneficiaries of

Marjorie C. Schneller, by James D. Schneller, trustee ad

litem; (2) Estate of Marjorie Schneller, by and through

James D. Schneller, trustee ad litem; (3) Marjorie

Zitomer executrix of the Estate of Marjorie Schneller

(Miss Zitomer is Mr. Schneller's sister and also a

defendant in this action); and (4) Estate of George H.

Schneller, by and through personal representative James

D. Schneller The Third Circuit noted: "Schneller filed his |

complaint prose. He also purports to represent other

persons and entities. Although Schneller is entitled to

represent himself pro se, he 'may not appear pro Sc in

the cause of another person or entity." Schneller et al. v.

Crozer Chester Medical Center, et al 276F cd. Appx. 169,

*170 f1.t (8d Cm 2008). Accordingly, 1 will refer to Mr. |

Schneller as the solo plaintiff.

2 The twelve defendants include: (1) Crozer Chester

Medical Center dba Taylor Hospital and Crozer Keystone

Health System; (2) Herman McGill, M.D.; (3) Suburban

Pulmonary Medicine; (4) Daniel Dupont, D.O.; (5) E.

Heffelfinger, D.O.; (6) Gerald Meis, D.O.;(7) Gurpreet

Kochar, M.D.; (8) Lalitha Gurijala, MD.; (9) Marjorie

Zitomer (10) Richard Schneller (the plaintiff's brother);

(11) T. Sergeant Pepper, Esq. and (12) Hepburn Wilcox,

Hamilton and Putnam, LLP.

professional liability and intentional tort against this

defendant." See Compl. 11 5-9, 15-16. The only

exceptions are in the paragraphs for his brother and

sister. Id. 11 10,11. I dismissed the case based on lack

of jurisdiction before service was perfected. See Schneller

et al. v. Crozer Chester Medical Center. et al, No.06-

0698, 2006 U.S. Dist. LFXIS 21053, *7-8 (E.D. Pa. April

18, 2006). On appeal, the Third Circuit Court of Appeals

vacated the dismissal holding that the plaintiff should

have been given an opportunity to amend his complaint.

Schneller et al. v. Crozer Chester Medical Center. et al.,

276 Fed. Appx. 169, *171 (3d Cir. 2008). It appears that

the court's holding prompted the plaintiff to open a new

case with the identical complaint, rather than amend the

previously filed complaint. See Civil Action No.08-1479

The defendants have filed motions to dismiss the

latter case. Because the two cases are identical, I will

construe these motions as applying to both cases, grant

them in their entirety, and dismiss both cases.

BACKGROUND

In October 2004, Mr. Schneller began a series of

actions against these defendants in the Courts of

Common Pleas of the Counties of Delaware, Chester, and

Montgomery. The cases were dismissed through entries

of judgment of non pros for failure to file Certificates of

Merit as required by Rule 1042.3 of the Pennsylvania

Rules of Civil Procedure. Mr. Schneller unsuccessfully

attempted to re-open the cases and/or strike the

judgment of non pros. He then appealed the cases to the

Pennsylvania Superior Court which affirmed without an

opinion the entries of judgment. The Pennsylvania

Supreme Court denied his petitions for allowance of

appeal. Finally, the United States Supreme Court denied

the plaintiff's petitions for writ of certiorari.

The seventy-eight (78) page complaint contains

five-hundred fifty-three (553) paragraphs purporting to

provide the basis of the plaintiffs twenty-nine (29)

claims:

Count lA

Count IB

Count IC

Count 1D

Sount LE

Count 2

Count 3

Count 4

Count 5

Violation of the Assisted Suicide

Funding Restriction Act of 1997

Civil Action for Deprivation of Rights

Conspiracy to Interfere with Civil

Rights Depriving Persons of Rights

and Privileges

Conspiracy to Interfere with Civil

Rights - Obstructing Justice and

Intimidating Parties - Battery

Neglect to Prevent Deprivation of

Rights & Conspiracy for Depriva-

tion of Rights - Failure to Warn

Breach of Contract

Fraudulent Inducement of Contracts

Breach of Confidential Relationship,

Fiduciary Relationship and

| aaa anak ire mean, a

Fiduciary Duty

Count 6 - Wrongful Death

Count 7 - Survival

Count 8 - Intentional Tort - Abuse of Power of

Attorney

Count 9 - Intentional Tort Abuse of Advance

Health Care Directive

Count 10 - Negligence Per Se (violation of sixty-

five state and federal statutes)

Count I1 - Battery

Count 12 - Battery - Lack of Informed Consent

Count 13 Product Liability

Count 14 - Survival - Negligent and Intentional

Infliction of Emotional Distress

Count 15 - Survival - Conspiracy

Count 16 - Survival - Punitive Damages

Count 17 - Professional Negligence - Medical!

Count IS . Professional Negligence - Attorney

Count 19 - Slander and Libel

Count 20 - Fraud and Intentional

Misrepresentation

Count 21 - Conspiracy

Count 22 - Negligent and Intentional Infliction

of Emotional Distress

Count 23 : Breach of Fiduciary Duty

Count 24 - Tortious Interference with Present

& Prospective Economic Advantage

Count 25 : Punitive Damages

Mr. Schneller also alleges violations of various

Long ‘Term Care Facility regulations, including: 42

C.F.R. § 483.10, 42 C.F.R. § 483.13, 42 C.F.R. § 483.15,

and 42 C.F.R. § 483.25.° See Compl. 11 24.

’ These provisions "contain the requirements that an

institution must meet in order to qualify to participate as

C—O

There are three (3) groups of related defendants,*

each of which have filed a motion to dismiss with

substantially similar arguments. Accordingly, I will

address these motions in concert.

Il. STANDARD FOR A MOTION TO DISMISS

A motion to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state a

claim upon which relief can be granted examines the

legal sufficiency of the complaint. Conley v. Gibson, 355

U.S. 41,45-46(1957). The factual allegations must be

sufficient to make the claim for relief more than just

speculative. Bell Atlantic Corp. v. Twombly, 550 U.S.

544,555(2007). In determining whether to grant a

motion to dismiss, a federal court must construe the

complaint liberally, accept all factual allegations in the

complaint as true, and draw all reasonable inferences in

favor of the plaintiff Id.; see also D.P. Enters. v. Bucks

a [skilled nursing facility] in the Medicare program, and

as a nursing facility in the Medicaid program. They serve

as the basis for survey activities for the purpose of

determining whether a facility meets the requirements

for participation in Medicare and Medicaid." 42 C.F.R. §

483.1(b). These regulations do not confer a private right

of action. Accordingly, they provide no basis for

jurisdiction pursuant to 28 U.S.C. § 1331.

County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not

require a plaintiff to plead in detail all of the facts upon

which he bases his claim. Conley, 355 U.S. at 47. Rather,

the Rules require a "short and plain statement" of the

claim that will give the defendant fair notice of the

plaintiffs claim and the grounds upon which it rests. Id.

The “complaint must allege facts suggestive of [the

proscribed] conduct." Twombly, 550 U.S. at 555. Neither

"bald assertions" nor “vague and conclusory allegations"

are accepted as true. See Morse v. Lower Merion Schoo!

Dist., 182 F.3d 902,906 (3d Cir. 1997); Sterlin2 v.

Southeastern Pennsylvania Transp. Auth., 897 F. Supp.

893 (E.D. Pa. 1995). The claim must contain enough

factual matters to suggest the required elements of the

claim or to "raise a reasonable expectation that discovery

will reveal evidence of those elements. Phillips V

Countv of Allegheny, 515 F.3d224, 234 (3d Cir. 2008)

(quoting Twombly, 550 U.S. at 555).

A case maybe also dismissed under Rules 12(b)(1)

and 12(h)(3) of the Federal Rules of Civil Procedure

"[w]henever.it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject

matter...." FED.R.CIV.P. 12(h)(3). Alternatively, a court

* An exception to this is defendant Kochar who has not

filed a motion to dismiss.

choosing not to grant a motion to dismiss for lack of

subject matter jurisdiction may, under Rule 12(e), grant

a motion for a more definitive statement if "a pleading to

which a responsive pleading is permitted is so vague or

ambiguous that a party cannot reasonably be required to

frame a responsive pleading "FED.R.CIV.P. 12(e).

Moreover, courts must liberally construe pro se

complaints and “apply the applicable law, irrespective of

whether [the] litigant has mentioned it by name."

Higgins v Beyer, 293 F.sd 683, 688 (3d Cir. 2002). Thus,

a plaintiffs complaint, however inartfully pleaded, must

be held to a less stringent standard than a formal

pleading drafted by an attorney. Estelle v. Gamble, 429

U.S. 97, 106 (1976).

Iii. DISCUSSION

The defendants argue that the case should be

dismissed because this court does not have subject

matter jurisdiction. Federal courts are courts of limited

jurisdiction, and they may only decide cases as

authorized by Congress or the Constitution. District

courts have subject matter jurisdiction over federal

questions pursuant to 28 U.S.C. § 1331, in which

Congress grants courts "original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties

of the United States."

Federal courts also have subject matter

jurisdiction over cases where there is complete diversity

of citizenship among the parties and the amount in

controversy “exceeds the sum or value of $75,000,

exclusive of interest and costs" pursuant to 28 U.S.C. §

1332(a).° The requirement of complete diversity means

that "jurisdiction is lacking if any plaintiff and any

defendant are citizens of the same state." Menan Co. v.

Atl. Mut. Ins. Co., 147 F.3d 287, 290 (3d Cir. 1998)

(citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267,2 L.

Ed. 435 (1806)).

When a motion to dismiss for lack of subject

matter jurisdiction is before a court, "the person

asserting jurisdiction bears the burden of showing that

the case is properly before the court at all stages of

litigation." Packard v. Provident Nat'l Bank, 994 F.2d

1039, 1045 (3d Cir. 1993). This burden is applicable to

cases based on diversity jurisdiction as well, and in such

cases a plaintiff must demonstrate complete diversity

> Title 28 U.S.C. § 1332(a) provides: The district

courts shall have original jurisdiction of ali civil actions

where the matter in controversy exceeds the sum or

value of $75,000, exclusive of interest and costs, and is

between: (1) citizens of different states’ (2) citizens ofa

state and citizems or subjects of a foreign state; (3)

citizens of different states and in which citizens or

subjects of a foreign state are additional parties; and (4)

a foreign state as plaintiff and citizens of a state or of

different states.

between the parties and that the amount in controversy

requirement has been met. Quaker State Dyeing &

Finishing Co.. Inc.. v. ITT Terryphone Corp., 461 F.2d

1140, 1143 (3d

]

Cir. 1972) (citing McSparran v. Weist, 402 F.2d 867, 875

(3d Cir. 1968)).

Here, the plaintiff and eleven defendants are

residents of Pennsylvania. There is clearly no diversity of

citizenship. Thus, jurisdiction cannot be based on 28

U.S.C. §1332. The defendants, however, also argue that

the complaint fails to present a federal question

sufficient to confer jurisdiction. Federal question

jurisdiction exists in one of two circumstances: (1) where

federal law creates the cause of action; or (2) where the

complaint poses a substantial federal question. Sodi v.

Discover Financial Services, 2004 U.S. Dist. LEXIS

24133, *8 (E.D. Pa. 2004). Here, the plaintiff's alleged

bases for federal question jurisdiction fall into two

categories: (1) alleged violations of federal statutes and

regulations; and (2) alleged civil rights violations.

Mr. Schneller cites several federal statutes and

regulations throughout his complaint. of the twenty-nine

counts contained in the complaint, however, only five

counts attempt to set forth federal causes of action. The

first count alleges a violation of the Assisted Suicide

Funding Restriction Act of 1997,42 U.S.C. § 14401, et

seq. See Compl. 191 95-107. The defendants argue that

this Act does not create a private right of action, and

thus cannot provide the basis for jurisdiction. I agree.

If Congress intends to create a private cause of

action under a federal statute, the federal courts should

find a private cause of action under the given statute.

Transamerica Mortgage Advisors Inc. v. Lewis, 444 U.S.

11,15(1979). Congress' intent is determined by

examining "the language or structure of a statute or the

circumstances of

its enactment." Id. "[W]hether a statute creates a cause

of action, either expressly or by implication, is basically a

matter of statutory construction." Id. If the language of

the statute expressly gives a remedy then courts should

be wary when they are requested to add an additional

remedy that is not expressly provided for in the statute.

Id.

The structure and language of this Act do not

show any intent by Congress to establish a private cause

of action. The purpose of the Act is "to continue current

federal policy by providing explicitly that federal funds

may not be used to pay for items and services (including

assistance) the purpose of which is to cause (or assist in

causing) the suicide, euthanasia, or mercy killing of any

individual." 42 U.S.C. § 14401(b). Mr. Schneller claims

that jurisdiction is proper under this Act because many

of the defendants applied funds appropriated by

Congress for the purpose of paying for the provision of

health care services, federal fluids under certain grant

programs including Medicare and Medicaid, and federal

advocacy grants, to pay for, provide and contribute to

payment or coverage, for health care items and service

furnished for the purpose of causing, and for the purpose

of assisting in causing, the death of Marjorie C.

Schneller, by euthanasia, mercy killing and assisted

suicide. See Compl. 1 17. Mr. Schneller's assertion is

contrary to law.

The rationale for the enactment of this statute is

to prevent federal funds from being used for the criminal

and unlawful purpose of assisted suicide. See 42 U.S.C.A.

§14401 (a)(2). There have never been any criminal

charges in connection with the care

and treatment of Marjorie Schneller, and the claims that

the defendants engaged in some type of mercy killing are

unfounded. Further, no court has found that Title 42

U.S.C. §14401, et seg., creates a private cause of action.

Thus, the Assisted Suicide Funding Restriction Act

cannot form the basis of subject matter jurisdiction.

The next four counts in the complaint allege the

deprivation of civil rights pursuant to 42 U.S.C. §§ 1983,

1985, and 1986. Because they contemplate a private

cause of . action, these statutes provide subject matter

jurisdiction to the court. Counts IB, 1C, ID, and IE set

forth the plaintiffs civil rights claims against the

defendants for alleged violations of his mother's rights

guaranteed by the Fourteenth Amendment to the United

States Constitution. Count 1B contains allegations that

the defendants deprived Mrs. Schneller of life, liberty,

and property by enforcing her advanced health care

directive over Mr. Schneller's objection and causing her

death. See Compl. 11 108-129. Count IC claims that the

defendants conspired to deprive Mrs. Schneller of rights

and privileges including "freedom of speech, freedom to

write and communicate, right to locomotion, family

interaction, rights to legal representation, to meaningful

family visits, and right to choose her daily regimen and

health program." See Compl. 11 130-155. Count ID

alleges that the defendants "conspired for the purpose of

impeding, hindering, obstructing, and defeating the due

course of justice enjoyed by citizens, with the intent to

deny plaintiffs the equal protection of the laws,” and that

these acts constituted causes of action for obstruction of

justice, criminal assault, and criminal maiming. See

Compl. 19156-1783.

Finally, Count IE alleges that the defendants,

“having knowledge that any and all of the wrongs

conspired to be done, as enumerated in this complaint,

were about to be committed, and having power to

prevent or aid in preventing the commission of the same

neglected or refused so to do." Compl. 91 174-182.

The Fourteenth Amendment to the U.S.

Constitution provides that 'no State shall...deprive any

person of life, liberty, or property, without due process of

law..." US Const., Amend. 14, § 1 . The protections of the

Fourteenth Amendment do not extend to private conduct

abridging individual rights, no matter how unfair that

conduct may be. National Collegiate Ath. Ass'n v.

Tarkanian, 488 U.S. 179 (1988). It is the duty of this

court to ensure that the Fourteenth Amendment is

invoked only when it can be said that the State is

responsible for the specific conduct of which the plaintiff

complains. Brentwood Acad. v. Tennessee Secondarv

Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001); Edmonson

v. Leesville Concrete Co., 500 U.S. 614, 632 (1991); Blum

v. Yaretskv, 457 U.S. 991(1982). If a defendant's conduct

satisfies the state-action requirement of the Fourteenth

Amendment, the conduct also constitutes action "under

color of state law" for Section 1983 purposes. Brentwood

Acad., 531 U.S. at 295 (citing Lugar v. Edmondson Oil

Co., 457 U.S. 922(1982)).

Title 42 U.S.C. §1983 authorizes redress for

violations of constitutional rights and provides, in

pertinent part, that:

Every person who, under color of any statute,

ordinance regulation, custom, or usage, of any

State or Territory,

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. By its terms, Section 1983 does not

create a substantive right; it merely provides a method

for vindicating federal rights conferred by the United

States Constitution and the federal statutes that it

describes. Baker v McCollan, 4A U.S. 187 (1979). In

order to establish a claim under Section 1983, a plaintiff

must demonstrate (1) a violation of a right secured by

the Constitution and the laws of the United States and

that (2) the alleged deprivation was committed by a

person acting under color of state law. American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999).

Here, Mr. Schneller fails to satisfy these

requirements. Although a private party may cause a

deprivation of a constitutional right, it is subjected to

liability under Section 1983 only when it does sounder

color of law. Flagg Bros. Inc. v. Brooks, 436 U.S. 149,

156(1978). Section 1983 excludes from its reach "merely

private conduct," no matter how discriminatory or

wrongful. American Mfrs. Mut. Ins. Co., 526 U.S. at 50.

The actions alleged here were not performed under color

of state law, and the defendants are not and cannot be

considered state actors.

Mr. Schneller argues, however, that the defendants

"operated under a state-created system permitting

private parties to substitute their judgment for that of a

state official and invoked state power." See Comp!. Count

1B. He also alleges that some of the

defendants receive federal funds. Id. These

allegations do not establish that the defendants were

acting "under color of law" or were state actors. The

traditional exclusive governmental function test requires

that a private entity exercise powers traditionally and

exclusively reserved to the State, such as holding an

election or eminent domain. Wolotskv v. Hulin, 960 F.2d

1331, 1335(6th Cir. 1992). The provision of hospital

services is not a traditional public function exclusively

reserved for the State. Shannon v. Shannon, 965 F.2d

542, 547 (7th Cir. 1992) (hospital care is not an exclusive

prerogative of the State).

When analyzing the exclusive government

function test, the Supreme Court has held that the

receipt of public funds and the performance of a function

serving the public, alone, are not enough to make a

private entity a state actor. Rendell-Baker v. Kohn, 457

U.S. 830, 840(1982); Black. et al. v. Indiana School

District, 985 F.2d 707,710-Il (8d Cir. 1993) (a school bus

driver is not performing an exclusive government

function, even though paid by the state and performing a

service for the public). The fact that hospitals and

nursing homes may be extensively regulated and may

receive financial support from the government through

Medicaid and Medicare does not make them state actors .

457 U.S. at 1011. In Blum, the Supreme Court flatly

rejected the argument that the State's payment of more

than 90% of nursing home patients’ medical expenses

and the licensing of nursing homes does not create a

symbiotic relationship between the state and nursing

homes. Additionally, the vast majority of Courts of

Appeals have determined that

the recipient of federal construction funding, Medicare

and Medicaid funds, and the existence of tax exemption,

as well as state licensing requirements for non-profit

hospitals, do not constitute state action under 42 U.S.C.

§ 1983. See Hodge v. Paoli Memorial Hospital, 576 F.2d

563 (3d Cir. 1978) (citing Schlein v. Milford Hospital

Inc., 561 F.2d 427 (2d Cir. 1977); Greco v. Orange

Memorial Hospital Corporation, 513 F.2d 873 (5th Cir.),

cert. denied, 423 U.S. 1000(1975); Jackson v. Norton-

Children's Hospitals. Inc., 487 F.2d 502(6th Cm 1973),

cert. denied, 416 U.S. 1000(1974); Doe v.

Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973);

Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Watkins v.

Mercy Medical Center, 520 F.2d 894(9th Cir. 1975);

Ward St. Anthony Hospital, 476 F.2d 671(10th Cir.

1973)).

Accordingly, the receipt of federal finding is not

determinative of state action. Private entities are not

transformed into state actors by the simple provision of

funds. Because Mr. Schneller cannot establish state

action, he cannot establish a cause of action under 42

U.S.C. § 1983 or related statutes, which provide a

necessary conduit through which the plaintiff might

recover for alleged federal rights violations perpetrated

against him. Accordingly, I will dismiss Counts IB, IC,

ID, and IF.

If these federal claims were properly before me, they

would still fail as untimely. Although Rule 12(b) does not

explicitly permit the assertion of a statute of limitations

defense by a motion to dismiss, the so-called "Third

Circuit Rule" allows a defendant to assert a limitations

defense in a Rule 12(b)(6) motion "if 'the time alleged in

the

statement of a claim shows that the cause of action has

not been brought within the statute of limitations."

Zankel v. Temple University, 245 Fed. Appx. 196, 198

(3d Cir. 2007) (citing Robins v. Johnson, 313 F.3d 128,

135 (3d Cir. 2002)). Because these federal statutes do not

set forth a specific statute of limitations, the claims are

subject to Pennsylvania's two-year statute of limitations.

City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,

124(2005) (where a plaintiff relies upon federal statutes

in asserting a claim, and those statutes do not contain a

specific provision regarding the time within which an

action maybe brought, federal courts apply the statute of

limitations governing suits for personal injury in which

a eee te

the action arises); Wilson v. Garcia, 471 U.S. 265, 275

(1985); see also Lake v. Arnold, 232 F.3d 360, 368 (3d

Cir. 2000) (actions arising under Sections 1983,1985 and

1986 are subject to the statute of limitations prescribed

for personal-injury actions in the state in which the

relevant events occurred). Pennsylvania's personal injury

statute of limitations is two (2) years. Vojtasek v. Diocese

of Allentown, 916 A.2d 637,640 (Pa. Super. 2006); 42

Pa.C.S.A. § 5524(2). The death of Marjorie Schneller is a

discreet and identifiable event, and the statute of

limitations on any claims arising from her death or any

of the alleged events that precipitated her death, began

to arise on March 31, 2002. This action was commenced

on February 16, 2006, almost four (4) years later, and is

thus untimely by two (2) years. Accordingly, Mr.

Schneller's federal claims would be time-barred if they

were properly before me.

Finally, the plaintiff claims that jurisdiction exists

pursuant to 42 Pa.C.S. § 5535.

Title 42 Pa.C.S. § 5535(1) provides: "If a civil action or

proceeding is timely commenced and is terminated, a

party, or his successor in interest, may, notwithstanding

any other provision of this subchapter, commence a new

action or proceeding upon the same cause of action

within one year after the termination and any other

party may interpose any defense or claim which might

have been interposed In the original action or

proceeding." The plaintiff claims that this statute

supplies jurisdiction because his prior civil action

docketed at 06-cv-0698 was terminated by the court, and

a new action was timely commenced. Mr. Schneller's

reliance on this statute is misplaced. Title 42 Pa.C.S

§5535(2) specifically provides that "paragraph (1) does

not apply to an action to recover damages for injury to

the person or for the death of an individual caused by the

wrongful act or neglect or unlawful violence or

negligence of another." Accordingly, in this wrongful

death action, jurisdiction cannot be based on 42 Pa.C.S. §

5535.

Mr. Schneller also claims that the court has

supplemental jurisdiction over his remaining state law

claims pursuant to 28 U.S.C. § 1367(a), which provides:

[IJn any civil action of which the district courts

have original jurisdiction, the district courts shall

have supplemental jurisdiction over all other

claims that are so related to claims in the action

within such original jurisdiction that they forrn

pad of the same case or controversy under Article

Ill of the titited States Constitution. Such

supplemental jurisdiction shal} include claims that

involve the joinder or intervention of additional

parties.

The state law claims ~ this complaint

substantially predominate over the § 1983 claims. See 28

U.S.C. § 1367(c)(2). The federal claims over which the

court had

jurisdiction will be dismissed. 28 U.S.C. § 1367(c)(*).

Accordingly, I decline to exercise supplemental

jurisdiction over the state jaw claims in this case.

I note that if the state law tort claims were

properly before me, however, they would still be

dismissed as untimely. The plaintiff and eleven of the

twelve defendants are residents of Pennsylvania, and all

relevant events in this case arose in Pennsylvania. It is

well established that a federal court shall apply

Pennsylvania substantive law and federal procedural

rules to the resolution of state Jaw claims. See Erie

Railroad Company v. Tomkins, 304 U.S. 64 (1938)).

Accordingly, Pennsylvania law governs the disposition of

the plaintiffs state law tort claims. In Pennsylvania, the

applicable two-year statute of limitations provides that:

"The following actions and proceedings must be

commenced within two years:

(1) An action for assault, battery, false

imprisonment, false arrest, malicious

prosecution or malicious abuse of process.

(2) An action to recover damages for injuries to

the person or for the death of an individual

caused by the wrongful act or neglect or

unlawful violence or negligence of another

(3) An action for taking, detaining or injuring

personal property, including actions for

specific recovery thereof. . .

(4) Any other action or proceeding to recover

damages for injury to person or property

which is founded on negligent, intentional,

or otherwise tortious conductor any other

action or proceeding sounding in trespass,

including deceit or fraud, except an action

or proceeding subject to another limitation

specified in this subchapter.

Title 42 Pa. C.S.A. § 5524. Thus, under § 5524(2),

because the case was filed almost

four (4) years after Mrs. Schneller's death, the plaintiffs

state law claims arising from her death or the care she

received in the months preceding her death would also

be time barred.

In conclusion, while the plaintiff attempts to bring

federal claims in combination with his predominant state

law claims, the federal claims will be dismissed for lack

of subject matter jurisdiction and for failure to state a

claim. In the alternative, if the federal claims were

properly before me, they would be dismissed as untimely.

Finally, 1 decline to exercise supplemental jurisdiction

over the state law claims, most of which are also

untimely.®

An appropriate Order follows.

° Any breach of contract claims in this complaint

would be timely because under Pennsylvania law, an

action for breach of contract is subject to a four (4) year

statute of limitations. Pa.C.S.A. § 5525. Mrs. Schneller

died on March 31, 2002, and the earlier of these two

cases was filed on February 16,2006, over a month

within the statute of limitations. Because I decline to

exercise supplemental jurisdiction, this point is moot.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES D. SCHNELLER, et al.,

CIVIL ACTION .

Plaintiffs

NO.06-0698

CROZER CHESTER MEDICAL

CENTER, et al.,

Defendants

wet et ee He ee eee a a ee et ee ee ee ee ee ee ee ee ee ee ee

JAMES D. SCHNELLER, et al CIVIL ACTION

Plaintiffs

Vii.

NO.08-1479

CROZER CHESTER MEDICAL

CENTER, et al.,

Defendants

FILED JUNE 26, 2009

ORDER

AND NOW, this 25 day of June, 2009, upon consider-

ation of the plaintiff's motion for reconsideration filed

both in Civil Action No. 08-1479 (Document #72) and in

Civil Action No.06-0698 (Document #39), and the

defendants’ responses thereto, it is hereby ORDERED

that the motion is DENIED. '

‘On March 19,2009,1 dismissed the above captioned

cases. The plaintiff filed a motion for reconsideration to

which the defendants responded. Granting a motion for

reconsideration is appropriate "if the party seeking

reconsideration shows at least one of the following

grounds: (1) an intervening change in the controlling

law; (2) the availability of new evidence that was not

available when the court granted the motion . . .; or (3)

the need to correct a clear error of law or fact or to

prevent manifest injustice." Max's Seafood Cafe ex rel.

Lou-Ann. Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.

1999) (citing N. River Ins. Co. v. CIGNA Reins. Co., 52

P.3d 11941 1218 (3d Cir. 1995)); see also Cont'l Cas. Co.

v. Diversified Indus.. Inc., 884 F. Supp. 937.943 (E.D. Pa.

1995) (because federal courts have a strong interest in

the finality of judgments, motions for reconsideration

should be granted sparingly). The plaintiff has shown.

none of those grounds. There was no intervening change

in the controlling law, no new evidence presented, or no

clear error of law or fact in my previous Memorandum

and Order dismissing the actions. Accordingly, I will

deny the motion.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES D. SCHNELLER, et al.,

CIVIL ACTION .

Plaintiffs

Vv.

NO.06-0698

CROZER CHESTER MEDICAL

CENTER, et al.,

Defendants

ee ee ee Oe eee ee ee re ee ee ee ee yD OS Ee ES ee oe ee a Oe

JAMES D. SCHNELLER, et al CIVIL ACTION

Plaintiffs

Vill.

NO.08-1479

CROZER CHESTER MEDICAL

CENTER, et al.,

Defendants

FILED JUNE 26, 2009

ORDER

AND NOW, this 25 day of June, 2009, upon

consideration of the plaintiffs motion

for leave to reply to the defendants’ responses with a

motion to dismiss non-diversity defendants and for

remand filed in Civil Action No.08-1479 (Document

#77), it is hereby ORDERED that the motion is

DENIED.’

‘On April 3, 2009, the plaintiff filed a motion for

reconsideration of the dismissal of the above-captioned

cases. Responses to that motion were due by April 20

2009. See local Rules 7.1 (c) and 8(e). The defendants

filed untimely responses on April23, 2009, April24, 2009,

and May 8 2009. At least twenty-eight days later, the

plaintiff filed this motion for leave to reply to those

responses. After review of these papers, I find that

nothing in the motion for reconsideration, the

defendants' untimely responses, and the plaintiffs

untimely request for leave warrant reconsideration of

the dismissal of these actions. Accordingly, 1 will deny

the plaintiffs motion for leave to reply. Furthermore,

waiting until after the dismissal of the actions to motion

for the dismissal of the non-diversity defendants and for

remand is inappropriate.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.