Craven v. Boston Health Net Ins. Co.

• Decision Date: 06 December 2012
• Docket Number: CIVIL ACTION NO. 12-12064-JCB
• Parties: ALFRED CRAVEN, ET AL., on behalf of mother Joan Henry, Plaintiff, v. BOSTON HEALTH NET INSURANCE CO., ET AL., Defendants.
• Court: U.S. District Court — District of Massachusetts

ALFRED CRAVEN, ET AL., on behalf of mother Joan Henry, Plaintiff,

v.BOSTON HEALTH NET INSURANCE CO., ET AL., Defendants.

CIVIL ACTION NO. 12-12064-JCB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DATED: December 6, 2012

MEMORANDUM AND ORDER

BOAL, M.J.

BACKGROUND

On November 2, 2012, Plaintiffs Alfred Craven, a prisoner at FMC Devens, and his brother, James Craven, of Wilmington, Vermont,¹ filed a civil action on behalf of their mother, Joan Henry ("Joan"). Plaintiffs identify the Defendants as Boston Health Net Insurance Co. ("BHN") and other unknown and unnamed defendants (staff of BHN), located in Boston, Massachusetts. In the body of the Complaint, however, Plaintiffs name Dr. McNamee as a Defendant as well. Plaintiffs purport to bring this action for civil rights violations pursuant to 42 U.S.C. § 1983, for the alleged deliberate indifference to their mother's urgent medical needs, resulting in Joan's death from liver cancer.

Specifically, Plaintiffs claim that on or about June 6, 2012, Dr. McNamee made a request to BHN for a PET Scan for Joan, following surgery on February 21, 2012 for lung cancer. BHN denied two earlier requests for PET Scans, but on August 10, 2012, after three appeals to the Contract Administrator, BNH granted the request. With respect to Dr. McNamee, Plaintiffs contend that he waited too long to detect Joan's cancer, and was negligent in failing to order ablood test or other test that would have detected cancer sooner. Further, they contend that Dr. McNamee told Joan that her cancer was not life threatening and that she could wait a week to discuss her options; however, Dr. Kalva, a liver specialist, advised Joan that her cancer was discovered too late to save her life.

With respect to BHN, Plaintiffs claim that it was grossly negligent because it waited too long to approve insurance coverage for a PET Scan, and there were no reasonable grounds to deny coverage. Plaintiffs also claim that it (and Dr. McNamee) should have known Joan's medical history of cancer treatment and surgery, and should have known that urgent medical follow-up was necessary to determine if the cancer had reappeared. They also claim that the supervisor at BHN, and other unnamed staff, caused Joan to suffer pain. They allege the Defendants' inactions constituted cruel and unusual punishment under the Eighth Amendment. They also allege the conduct of the Defendants involved gross negligence, discrimination, deliberate indifference, and malpractice. Plaintiffs seek monetary damages.

Plaintiffs attached to the Complaint an Affidavit of Joan detailing her battle with cancer, dated October 12, 2012. They also attached various medical reports and test results, and a document titled as a motion, but actually presenting further arguments in support of Plaintiffs' claims.

In addition to filing the Complaint and exhibits, Plaintiffs filed a Motion for Appointment of Pro Bono Counsel (Docket No. 2) alleging counsel is needed in order to protect civil rights.² Plaintiffs failed to pay the $350.00 filing fee for civil actions, or to seek a waiver of thefiling fee due to indigency.

DISCUSSION

I. The Filing Fee

A party (or parties) bringing a civil action must either (1) pay the $350.00 filing fee, see 28 U.S.C. § 1914(a); or (2) seek leave to proceed without prepayment of the filing fee, see 28 U.S.C. § 1915 (proceedings in forma pauperis). Where, as here, Plaintiff Alfred Craven is a prisoner (as defined by 28 U.S.C. § 1915(h)), a motion for waiver of prepayment of the filing fee must be accompanied by "a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint ... obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2).³

In this District, it is the practice to apportion the filing fee between or among plaintiffs, because only one filing fee of $350.00 may be collected. Here, Alfred Craven would be responsible for paying $175.00, and James Craven would be responsible for paying $175.00.

In light of the above, Alfred Craven is directed either to pay his proportionate share of the filing fee within 21 days of this Memorandum and Order or in the alternative, file an application to proceed in forma pauperis accompanied by his certified prison account statement.Additionally, James Craven is directed either to pay his proportionate share of the filing fee within 21 days or file an application to proceed in forma pauperis. Failure to comply with this directive may result in the dismissal of claims.⁴

The Clerk shall also send a copy of this Memorandum and Order to the Treasurer's Office at FMC Devens in order to facilitate any request by Alfred Craven for a certified prison account statement. The Court requests that the Treasurer's Office include in any prison account statement Alfred Craven's average monthly deposits for the six-month period preceding the date the Complaint was filed, as well as the average monthly balance for that same period.

II. Failure of James Craven to Sign Complaint

Notwithstanding the above, this Court notes that James Craven has not signed the Complaint as required by Rule 11(a) of the Federal Rules of Civil Procedure. See Fed. R.Civ. P. 11(a). Under Rule 11(a), a court may strike an unsigned paper unless the omission is promptly corrected after being called to the party's attention. Id.

Accordingly, unless James Craven signs an Amended Complaint pursuant to this Memorandum and Order, all claims asserted by him will be dismissed.⁵

III. Screening of the Complaint

Because Alfred Craven is a prisoner, he is subject to the provisions of the Prison Litigation Reform Act. The Prison Litigation Reform Act of 1995 ("PLRA"), Title VIII of Pub.L. 104-134, 110 Stat. 1321-1375 (1996), enacted several provisions which grant the courtthe authority to screen and dismiss prisoner complaints. See 28 U.S.C. § 1915 (proceedings in forma pauperis); 28 U.S.C. § 1915A (screening of suits against governmental officers and entities).⁶

Here, the Plaintiffs have not yet been allowed to proceed in forma pauperis and therefore the screening of the Complaint under 28 U.S.C. § 1915(e) is not authorized. Moreover, because it does not appear that the Defendants are governmental entities, no preliminary screening is authorized under 28 U.S.C. § 1915A. Nevertheless, this Court has inherent authority to manage its own cases and to review a case to determine, among other things, whether or not it is frivolous as that term is used in legal parlance. See Bustos v. Chamberlain, 2009 WL 2782238, *2 (D.S.C. 2009) (noting that the court has inherent authority "to ensure a plaintiff has standing, that subject matter jurisdiction exists, and that a case is not frivolous") citing, inter alia, Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 307-308 (1989); Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (where a § 1915 screening was not applicable because a pro se party paid the filing fee, the Court still had inherent authority "wholly aside from any statutory warrant" to act sua sponte); and Rolle v. Berkowitz, 2004 WL 287678, *1 (S.D.N.Y. 2004) (sua sponte dismissal in fee-paying pro se case is warranted where the claims presented no arguably meritorious issue to consider). See also Gaffney v. State Farm Fire and Cas. Co., 294 Fed. Appx. 975, 977 (5th Cir. 2008) (unpublished) ("This court has on numerous occasions recognized the inherent authority of a district court to dismiss a complaint on its ownmotion for failure to state a claim.").

In addition to the statutory screening provisions and the inherent authority of the Court to manage its cases, this Court has an independent obligation to inquire, sua sponte, into its subject matter jurisdiction. See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004); Fed. R. Civ. P. 12(h)(3) ("If the court determines ... it lacks subject matter jurisdiction, the court must dismiss the action."). See also In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988) ("It is too elementary to warrant citation of authority that a court has an obligation to inquire sua sponte into its subject matter jurisdiction, and to proceed no further if such jurisdiction is wanting.").

In connection with the preliminary screening conducted here, the Plaintiffs' Complaint is construed generously because they are proceeding pro se. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000). However, even under a broad reading, the claims presented in this action are subject to dismissal for the reasons set forth below.

A. Lack of Respondeat Superior Liability of BNH or Its Unnamed Supervisor

Plaintiffs seek to hold BNH and its Supervisor liable for civil rights violations presumably based on actions or inactions of its employees. Their constitutional claims are not plausible, however, because there is no vicarious liability (i.e., no respondeat superior liability) for claims arising under 42 U.S.C. § 1983.⁷ See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). "Itis well-established that 'only those individuals who participated in the conduct that deprived the plaintiff of his rights can be held liable'" under § 1983. Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 156 (1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005)). Accordingly, to the extent Plaintiffs seek to hold BNH and its Supervisor liable for the civil rights violations of its employees, such claims would fail.

B. Failure to State Plausible Claims in Compliance With Fed. R. Civ. P. 8

Next, to the extent that Plaintiffs seeks to hold liable any unnamed individual employees of BNH, they fail to state plausible claims in accordance with Rule 8 of the Federal Rules of Civil Procedure. Rule 8(a) require...