McPhail v. Fresenius Health Partners

Decision Date21 August 2019
Docket NumberNo. 5:19-CV-350-FL,5:19-CV-350-FL
CourtU.S. District Court — Eastern District of North Carolina
PartiesDOUGLAS E. MCPHAIL, Plaintiff, v. FRESENIUS HEALTH PARTNERS, INC., d/b/a Fresenius Care Navigation Network, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION

This matter is before the court on Plaintiff's application to proceed in forma pauperis [DE-1], for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and on Plaintiff's Motion for Temporary Restraining Order ("TRO") and Preliminary Injunction [DE-1-4]. Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed and the motion for a TRO and preliminary injunction be denied.

I. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.

In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition. . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Corr., 64 F.3d 951, 954 (4th Cir. 1995).

In order to state a claim on which relief may be granted, "a complaint must contain 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . . .'" Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

II. DISCUSSION

McPhail, a resident and citizen of Fayetteville, Cumberland County, North Carolina, brings this action against Fresenius Health Partners, Inc. ("Fresenius"), a North Carolina corporation providing transportation services for dialysis patients. Compl. [DE-1-1] ¶¶ 5-6, 12. McPhail is a dialysis patient and has received dialysis treatment for over two years at the Fresenius Dialysis Center located in Spout Springs, Harnett County, North Carolina. Id. ¶¶ 12-13, 20. In 2018, McPhail experienced transportation problems, and he began utilizing Fresenius for transportation to his dialysis treatments in Harnett County. Id. ¶¶ 7, 9. Fresenius is compensated for McPhail's transportation to the dialysis clinic through the Medicaid program. Id. ¶¶ 23-33. On an unspecified date, Plaintiff was "tentatively notified" that the transportation provided by Fresenius "would be ending soon" because Fresenius planned to terminate transportation to dialysis treatment centers located in "an adjoining county." Id. ¶¶ 10-11. McPhail contends that the transportation provided by Fresenius is a government entitlement that cannot be terminated without due process, i.e., a hearing. Id. ¶¶ 15, 34-43. McPhail alleges violations of the Equal Protection and Due Process Clauses of the United States Constitution; 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, and 1988; Title VI of the Civil Rights Act of 1964; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101(b)(4); and state law claims of negligent retention, training, and supervision; negligence; intentional infliction of emotional distress; and negligent infliction of emotional distress. Compl. [DE-1-1] ¶¶ 48-234. McPhail seeks entry of a TRO and permanent injunction prohibiting Fresenius from discontinuing his dialysis transportation, entry of a declaratory judgment that Fresenius violated his civil rights and the United States and North Carolina Constitutions, and compensatory and punitive damages. Id. at 36-38 ¶¶ 1-17.

A. Equal Protection Claim

The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Stop Reckless Econ. Instability Caused by Democrats v. Fed. Election Comm'n, 814 F.3d 221, 233 (4th Cir. 2016) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)); see also Robinson v. E. Carolina Univ., 329 F. Supp. 3d 156, 181 (E.D.N.C. 2018). McPhail has failed to allege any facts that would demonstrate he received unequal treatment from others similarly situated for discriminatory reasons. McPhail's allegations that Fresenius notified him of its intent to stop providing transportation service to adjoining counties suggests no intent to discriminate on the part of Fresenius. Accordingly, McPhail has failed to allege sufficient facts to state an Equal Protection claim.

B. Procedural Due Process Claim

The Due Process Clause of the Fourteenth Amendment prevents a state from "depriv[ing] any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV. To succeed on a procedural due process claim, a plaintiff must satisfy three elements: he had a constitutionally cognizable interest, the deprivation of that interest was caused by a form of state action, and the procedures were constitutionally inadequate. See Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013); McKernan v. Hayes, No. 4:18-CV-27-FL, 2019 WL 1767563, at *11 (E.D.N.C. Apr. 22, 2019).

Assuming McPhail has alleged a constitutionally cognizable property interest, he has failed to allege facts that would demonstrate the deprivation of that interest was caused by state action. Private action may be found to constitute state action "(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen." Rodgers v. Waste Indus., Inc., No. 4:12-CV-294-FL, 2013 WL 4460265, at *4 (E.D.N.C. Aug. 19, 2013) (quoting Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993)), aff'd, 553 F. App'x 332 (4th Cir. 2014); see also Mentavlos v. Anderson, 249 F.3d 301, 314 (4th Cir. 2001) (asking whether "there a sufficiently close nexus between the challenged actions of the defendants and the state "such that their actions may be fairly treated as that of the State itself.") (quotations omitted). Additionally, "[a] private party may be considered a state actor by 'conspiring with' a party acting under color of state law." Brown v. Phylbeck, No. 4:18-CV-202-FL, 2019 WL 2745758, at *3 (E.D.N.C. July 1, 2019) (quoting Dennis v. Sparks, 449 U.S. 24, 28 (1980)).

There are no facts alleged that would support a finding that the actions of Fresenius constitute state action. There are no allegations that Fresenius was coerced by or conspired with the state, that the state sought to evade a constitutional duty by delegating it to Fresenius, or that Fresenius performs a function traditionally reserved to the state. See Canfield v. Baylor Med. Ctr., No. 3:05-CV-1828-D, 2006 WL 2460554, at *4 (N.D. Tex. Aug. 23, 2006) (finding a...

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