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Dickens v. Wakemed Health & Hospitals

United States District Court, E.D. North Carolina, Western Division

July 26, 2018

WELLINGTON DICKENS III, Plaintiff,
v.
WAKEMED HEALTH & HOSPITALS and WAKE COUNTY GOVERNMENT, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on frivolity review of plaintiff's pro se complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Kimberly A. Swank entered a memorandum and recommendation (“M&R”), wherein it is recommended that the court dismiss plaintiff's claims. Plaintiff timely filed objections to the M&R (DE 8). In this posture, the issues raised are ripe for ruling. For the reasons stated herein, the court adopts the M&R, and dismisses the action in its entirety.

         BACKGROUND

         Plaintiff filed motion for leave to proceed in forma pauperis on January 5, 2018, accompanied by proposed complaint and several exhibits, asserting claims against defendant for violations of his federal and state constitutional rights. Plaintiff also asserts claims for several state torts, including false imprisonment, intentional infliction of emotional distress, and invasion of privacy. All claims arise from a report of child abuse or neglect made by defendant WakeMed Health & Hospitals, Inc. (“WakeMed”) to defendant Wake County and the subsequent actions taken by Wake County employees upon receipt of the report. Plaintiff seeks compensatory and punitive damages, as well as injunctive and declaratory relief.

         In M&R entered May 4, 2018, the magistrate judge recommends dismissal of all federal claims against defendants for failure to state a claim upon which relief can be granted. The magistrate judge also recommends denying to exercise supplemental jurisdiction over plaintiff's state law claims. Plaintiff filed objections to the M&R on May 15, 2018, challenging the magistrate judge's determinations.

         DISCUSSION

         A. Standard of Review The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for “clear error, ” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Under 28 U.S.C. § 1915(e)(2), the court may dismiss an action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.

         A complaint may be found frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Additionally, a complaint fails to state a claim if it does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” sufficient to “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). In evaluating whether a claim has been stated, “[the] court accepts all well-pled facts as true and construes those facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement [, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         B. Analysis

         1. Defendant Wakemed

         Plaintiff first objects to the magistrate judge's recommendation to dismiss his claims against defendant Wakemed. Plaintiff challenges the magistrate judge's finding of no state action and argues that Wakemed is liable under § 1983, where it conspired with Wake County Social Services to violate his rights under the First Amendment. Plaintiff asserts that this “joint action with the [s]tate” is sufficient to subject defendant to liability under § 1983. (DE 8, p. 3).

         To establish a conspiracy claim under § 1983, plaintiff must allege that defendants “acted jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted in the deprivation of a constitutional right.” Massey v. Ojaniit, 759 F.3d 343, 357-58 (4th Cir. 2014) (internal quotations and citations omitted). “[M]ere allegations of conspiracy, backed up by no factual showing of participation in a conspiracy, are insufficient.” Ballinger v. North Carolina Agr. Extension Serv., 815 F.2d 1001, 1007 (4th Cir. 1987); see also Gooden v. Howard County, Md., 954 F.2d 960, 969-70 (4th Cir. 1992) (“[C]ourts have thus required that plaintiffs alleging . . . conspiracy claims under . . . § 1983 plead specific facts in a nonconclusory fashion.”). Rather, plaintiff must allege sufficient facts that “reasonably lead to the inference that [defendants] positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.” Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996).

         Plaintiff asserts that because defendant WakeMed permits county social services to use its facilities, “a contractual agreement or some kind of unspoken and unadmitted mutual affirmation is undeniable.” (DE 8, at p. 2). However, plaintiff fails to allege sufficient facts that “reasonably lead to the inference that [defendants] positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.” Hinkle, 81 F.3d at 421. The fact that social services may have conducted business at defendant's facility does not necessarily imply that an agreement to violate plaintiff's constitutional rights existed between them. Plaintiff's conclusory assertion that such agreement existed is insufficient. See B a l l i n g e r, 815 F.2d at 1007. Accordingly, to the extent plaintiff asserts a conspiracy claim under § 1983, such claim must be dismissed for failure to state a claim upon which relief can be granted.

         To the extent plaintiff alleges that Wakemed qualifies as a state actor because its staff made a report to North Carolina's Department of Social Services (“DSS”), such allegations are also insufficient to subject defendant to liability under § 1983. See Lugar v. Edmonson Oil Co., 457 U.S. 922, 939, n.21 (1982) (indicating that “a private party's mere invocation of state legal procedures” does not constitute the type of “joint participation” required to satisfy § 1983). Where the magistrate judge's analysis on this ...


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