[Cite as McQueen v. White, 2015-Ohio-3982.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

John McQueen, : 

 

 Plaintiff-Appellant, : No. 15AP-18 

 (C.P.C. No. 14CV-6510) 

v. : 

 (ACCELERATED CALENDAR) 

Mark A. White, M.D., : 

 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on September 29, 2015 

 

John McQueen, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas. 

BROWN, P.J. 

{¶ 1} This is an appeal by plaintiff-appellant, John McQueen, from a judgment of 

the Franklin County Court of Common Pleas dismissing appellant's complaint for failure 

to state a claim for relief. 

{¶ 2} On June 23, 2014, appellant filed a pro se complaint against defendantappellee, Mark A. White, M.D., in which appellant asserted a "civil rights action * * * for 

violations of his rights secured by state and federal Constitutions." In the complaint, 

appellant alleged he had made an office visit to appellee complaining of "serious back and 

other pain." It was further alleged that appellee had prescribed pain medications for 

appellant, but that appellee had subsequently "refused to continue [prescribing] the 

medication, knowing that he had addicted [appellant] to this medication." Appellant 

sought damages in the amount of $1 million, alleging appellee "knew or reasonably should 
No. 15AP-18 2 

have known that his conduct against [appellant] was not consistent with his position as a 

doctor." Appellant attached several documents to his complaint labeled as exhibits. 

{¶ 3} On September 4, 2014, appellant filed a "request for default judgment," 

asserting that appellee had not responded to his complaint. On September 8, 2014, 

appellant filed a "request for final judgment," in which he again argued appellee had 

refused to respond to the complaint. 

{¶ 4} By journal entry filed September 22, 2014, the trial court denied appellant's 

motions for default and/or final judgment. The court, while giving recognition to 

appellant's allegation of a civil rights action, further noted that the complaint, 

"[c]haritably viewed," alleges "medical malpractice or negligence." As to the alleged 

medical claims, the court observed that appellant failed to attach, pursuant to Civ.R. 

10(D)(2), an affidavit of merit from a physician attesting to the colorable validity of the 

claim. The trial court also noted it was "not clear from the docket that Dr. White was 

actually served with the Summons and Complaint." Finally, the court's entry provided in 

part: "Within fourteen * * * days of this Entry, plaintiff is ordered to show cause

why this case should not be dismissed for failure to comply with Civ.R. 10(D)(2), or else 

plaintiff must file an appropriate Affidavit of Merit from a doctor that complies fully with 

Civil Rule 10(D)(2)." (Emphasis sic.) 

{¶ 5} On October 7, 2014, appellant filed a memorandum in which he argued that 

an "affidavit of merit is not required when claims are based upon constitutional violations 

under * * * Section 1983." Also on that date, appellant filed a "response to show cause," in 

which he asserted that his insurance provider was "Buckeye Community Health Plan—a 

state based company," and that appellee became a state actor "pursuant to a contract with 

this state company." 

{¶ 6} By decision and entry filed January 6, 2015, the trial court dismissed 

appellant's complaint for failure to state a claim for relief. In its decision, the court 

observed that the complaint "appears to make a 'medical claim' against * * * Mark A. 

White, M.D., although in the unnumbered first paragraph it says it is a 'civil rights action 

* * * for violations of his [plaintiff's] rights secured by state and federal Constitutions.' " 

Noting that a suit under 42 U.S.C. 1983 "requires state action as a predicate," the court 

found that, while appellant alleged [appellee] prescribed him two separate pain 
No. 15AP-18 3 

medications for "serious back and other pain" which ultimately led to appellant's apparent 

addiction to pain pills, "no allegation in the complaint suggests that [appellant] was a 

state prisoner, or otherwise under the care, custody, or control of the state at the time of 

the events in question." 

{¶ 7} The trial court also addressed an argument raised by appellant in his 

"response to show cause," holding in part: 

In his "Response to Show Cause" filed October 7, 2014 

plaintiff contends that Dr. White is a state actor because his 

medical insurance provider, Buckeye Community Health 

Plan, is a state agency. * * * Plaintiff claims that having given 

him insurance, the state "has an obligation under The Eighth 

Amendment and state law to provide adequate medical care to 

those the state chooses to give medical cards. * * * Plaintiff 

claims, therefore, that a claim is available under 42 U.S.C. § 

1983, and that such a claim is properly in front of this court 

without any Affidavit of Merit in compliance with Civ. R. 

10(D)(2). 

Plaintiff is incorrect. There is no colorable substance to his § 

1983 claim because of the lack of state action. Moreover, even 

if he had stated a colorable § 1983 civil rights claim, it is 

premised solely upon medical negligence. Where that is the 

operative focus of the case, the requirements of Ohio Rule of 

Civil Procedure 10 are triggered when a plaintiff sues in state 

court. * * * Plaintiff has not colorably satisfied his obligation 

to plead a malpractice case under Ohio Civ. R. 10(D)(2). 

Accordingly, this case is DISMISSED. 

(Emphasis sic.) 

{¶ 8} On appeal, appellant, pro se, sets forth the following assignment of error for 

this court's review: 

THE LOWER COURT ERRED AS A MATTER OF LAW IN 

DISMISSING APPELLANT'S COMPLAINT FOR FAILURE 

TO STATE A CLAIM UPON WHICH RELIEF COULD BE 

GRANTED. 

{¶ 9} Under his single assignment of error, appellant argues that the trial court 

erred in dismissing his 42 U.S.C. 1983 (hereafter "Section 1983") action against appellee. 

More specifically, appellant argues the trial court erred in failing to find appellee was a 

state actor acting under color of state law for purposes of Section 1983. 
No. 15AP-18 4 

{¶ 10} This court reviews de novo a trial court's dismissal of a complaint for failure 

to state a claim upon which relief can be granted, as "it involves a purely legal issue." 

Salata v. Vallas, 159 Ohio App.3d 108, 2004-Ohio-6037, ¶ 15 (7th Dist.). In order for a 

court to dismiss a complaint for failure to state a cognizable claim, "it must appear beyond 

doubt that the plaintiff can prove no set of facts in support of the claim that would entitle 

plaintiff to relief." Id. Further, "[i]n determining whether a complaint presents a claim 

for which relief may be granted, the court must presume that all of the factual allegations 

in the complaint are true and make all reasonable inferences in favor of the nonmoving 

party." Id. Under Ohio law, " '[s]ua sponte dismissal of a complaint for failure to state a 

claim upon which relief can be granted is appropriate if the complaint is frivolous or the 

claimant obviously cannot prevail on the facts alleged in the complaint.' " Id. at ¶ 14, 

quoting State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 316 (2000). 

{¶ 11} In general, "Section 1983 provides a remedy to persons whose federal rights 

have been violated by governmental officials." Mankins v. Paxton, 142 Ohio App.3d 1, 9 

(1oth Dist.2001). The elements of a claim under Section 1983 are that "the conduct in 

controversy must be committed by a person acting under color of state law, and the 

conduct must deprive the plaintiff of rights, privileges, or immunities secured by the 

Constitution or laws of the United States." Id. at 10. 

{¶ 12} In the present case, the trial court concluded that appellant's complaint did 

not state a claim under Section 1983 because the complaint failed to adequately allege 

requisite state action. Based upon this court's de novo review, we find no error with that 

determination. Appellant's complaint does not allege that appellee is an employee of the 

state or of a state agency, nor does the complaint allege that appellee was operating 

pursuant to a contractual agreement with the state or a state agency. Rather, the 

complaint simply alleges that appellant "went to the office of [appellee]" with complaints 

of "serious back and other pain," and that appellee treated him with pain medication. 

Such allegations "cannot constitute state action for purposes of Section 1983." Koulkina 

v. City of New York, 559 F.Supp.2d 300, 320 (2008) (noting that "[p]rivate physicians 

are generally not state actors," and holding that plaintiff was not a state actor where 

allegations in complaint described nothing more than medical treatment he received from 

private physician's examination). See also Gladney v. McMonagle, E.D.Pa. No. 87-4871 
No. 15AP-18 5 

(May 18, 1988) ("A private physician exercising judgment does not do so as a state actor, 

but as a private individual."). 

{¶ 13} In his pro se brief, appellant relies on the United States Supreme Court's 

decision in West v. Atkins, 487 U.S. 42 (1988), in which the Supreme Court held that a 

private physician, who contracted with a state prison to provide medical services on a 

part-time basis to inmates within the confines of a state prison, acted under color of state 

law within the meaning of Section 1983 when undertaking his duties to treat an inmate. 

Appellant's reliance on West, however, is misplaced. As noted by the trial court, appellant 

did not allege in his complaint that he "was a state prisoner, or otherwise under the care, 

custody, or control of the state at the time of the events in question," nor did the 

complaint allege that appellee was employed by a prison or under contract to provide 

medical treatment to inmates. 

{¶ 14} The facts and holding in West are readily distinguishable from the facts 

alleged in the instant complaint, i.e., a private physician treating a patient in an office or 

hospital setting. See, e.g., Nunez v. Horn, 72 F.Supp.2d 24, 27 (N.D.N.Y.1999) (finding 

West distinguishable where physician was "not employed by the Bureau of Prisons, nor 

was he under contract with the state to render medical services to prison inmates," and 

physician did not treat inmate in prison hospital but, rather, "freely performed his 

medical duties in a much more physician-controlled environment"). As noted by one 

federal court, "[t]he theory behind the Supreme Court's recognition of state action [in 

West] was that the state had delegated a function for which it could not disclaim 

responsibility." Mitchell v. St. Elizabeth Hosp., 119 Fed.Appx. 1, 2 (7th Cir.2004). 

Further, "[t]he basis of the Court's holding was not that the physician had provided 

services, but rather that the state had 'an affirmative obligation to provide adequate 

medical care' to the petitioner." Id. at 2-3. Thus, because the state had an obligation to 

provide medical care to its inmates, the treatment provided by the physician in West was " 

'clothed with the authority of state law.' " West at 55, quoting United States v. Classic, 313 

U.S. 299, 326 (1941). The court in West also "specifically distinguished the custodial 

physician-patient relationship from the 'ordinary' physician-patient relationship." Britt v. 

Buffalo Mun. Housing Auth., 827 F. Supp.2d 198, 206 (W.D.N.Y.2011), quoting West at 

57, fn. 15. 
No. 15AP-18 6 

{¶ 15} Appellant contends that the "fact he was not physically in custody," i.e., a 

prisoner, does not preclude his action under Section 1983. In support, appellant relies on 

Sykes v. McPhillips, 412 F.Supp.2d 197 (N.D.N.Y.2006), and Styles v. McGinnis, 28 

Fed.Appx. 362 (6th Cir.2001) for the proposition that the holding in West has been 

extended outside the prison setting. Neither of the cases cited by appellant are authority 

for reversal of the trial court's dismissal in the instant case. In Sykes, the plaintiff filed a 

Section 1983 action against a defendant-physician, alleging constitutional violations 

arising from the delivery of emergency medical services at a private hospital during the 

plaintiff's son's incarceration. The plaintiff argued that the physician should be deemed a 

state actor because the physician's medical group contracted to provide emergency 

services to the hospital. The court in Sykes rejected this argument and found no state 

action. The court in Sykes relied in part on Nunez in holding that a physician "engaged in 

a single encounter with a prisoner presented for emergency treatment, which he was 

obligated under law to provide," would "not be deemed a state actor" for Section 1983 

purposes. Id. at 204. Similarly, in the other decision cited by appellant, Styles, the Sixth 

Circuit Court of Appeals held that an emergency room physician who treated an inmate 

did not qualify as a state actor. 

{¶ 16} Finally, appellant raises an argument in his pro se brief similar to one he 

made before the trial court in his "response to show cause." Specifically, appellant 

represented before the trial court that he obtained a medical card from the state due to his 

inability to pay for his own medical treatment. According to appellant, because the state 

provided him with a medical card, he is "no different than a prisoner who must [rely] 

upon the state to pay for his medical treatment," and that the provision of services by 

appellee implicates state action. While appellant's complaint contains no allegations with 

respect to receipt of a state medical card or his reliance on the state for medical benefits, 

such facts, standing alone, would not be sufficient to state a claim under Section 1983. In 

fact, the court in West acknowledged "the fact that * * * private entities received state 

funding and were subject to state regulation did not, without more, convert their conduct 

into state action." West at 57, fn. 10. See also Smith v. Univ. of Minn. Med. Ctr.-Fairview 

Riverside, D.C.Minn. No. 09-293 (July 14, 2010) ("extensive regulation and receipt of 
No. 15AP-18 7 

government funds does not convert a private medical provider, who provides medical 

services that a state would not normally provide, into a state actor"). 

{¶ 17} Here, based upon this court's de novo review, the trial court properly 

determined the complaint failed to state a claim for relief under Section 1983. 

Accordingly, appellant's single assignment of error is overruled, and the judgment of the 

Franklin County Court of Common Pleas is hereby affirmed. 

Judgment affirmed. 

BRUNNER and HORTON, JJ., concur. 

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