UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ROSA YAP MUNCHAK,

Plaintiff,

v.

BECKY RUCKNO, et al.,

Defendants.

CIVIL ACTION NO. 4:16-cv-01639

(BRANN, J.)

(SAPORITO, M.J.)

REPORT AND RECOMMENDATION

This is a pro se federal civil rights action, brought pursuant to 42 

U.S.C. § 1983. The plaintiff, Rosa Yap Munchak, has been granted leave to 

proceed in forma pauperis in this action pursuant to 28 U.S.C. § 1915. For 

the reasons stated herein, it is recommended that the complaint be 

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. BACKGROUND

In her handwritten complaint, the pro se plaintiff appears to allege 

that the several defendants1 violated her civil rights in connection with a 

 1 The defendants are: Geisinger Hospital in Danville, Pennsylvania; 

Becky Ruckno, a Geisinger employee; Dr. Amy Law, an oncologist at 

Geisinger; the Estate of Dr. Robert L. Walker, a surgeon at Geisinger; 

Moffitt Cancer Research Center in Tampa, Florida; Dr. Robert Wenham, 

an oncologist at Moffitt; and Dr. Ravi Shankar, a radiologist at Moffitt.

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December 2004 ovariohysterectomy at Geisinger Hospital in Danville, 

Pennsylvania, and a subsequent course of chemotherapy treatments 

administered in Pennsylvania and Florida between 2005 and 2010. The 

complaint appears to allege that this surgery and course of medical 

treatment was unnecessary, conducted without her adequately informed 

consent, and resulted in adverse side-effects, including lower extremity 

neuropathy and edema that affect her into the present. The plaintiff 

apparently sought some recourse from Geisinger in 2014 and 2015, but 

was not satisfied with their response. It is not clear from her complaint 

what relief she seeks in this civil action.

II. LEGAL STANDARD

A plaintiff proceeding in forma pauperis is subject to 28 U.S.C. 

§ 1915(e)(2), which provides that a court “shall dismiss the case at any 

time if the court determines that . . . the action . . . fails to state a claim on 

which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “The legal 

standard for dismissing a complaint for failure to state a claim under 

§ 1915(e)(2) is the same as that for dismissing a complaint pursuant to 

Fed. R. Civ. P. 12(b)(6).” Brodzki v. Tribune Co., 481 Fed. App’x 705, 706 

(3d Cir. 2012) (per curiam). Rule 12(b)(6), in turn, authorizes a defendant 

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to move to dismiss for “failure to state a claim upon which relief can be 

granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss 

may be granted only if, accepting all well-pleaded allegations in the 

complaint as true and viewing them in the light most favorable to the 

plaintiff, a court finds the plaintiff’s claims lack facial plausibility.” Warren 

Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). Although the 

Court must accept the well-pleaded allegations in the complaint as true, it 

is not compelled to accept “unsupported conclusions and unwarranted 

inferences, or a legal conclusion couched as a factual allegation.” Morrow v. 

Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 

481 F.3d 187, 195 (3d Cir. 2007)). In deciding a Rule 12(b)(6) motion, the 

Court may consider the facts alleged on the face of the complaint, as well 

as “documents incorporated into the complaint by reference, and matters 

of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & 

Rights, Ltd., 551 U.S. 308, 322 (2007).

III. DISCUSSION

The plaintiff has asserted federal civil rights claims against the 

defendants under 42 U.S.C. § 1983. Section 1983 provides a private cause 

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of action with respect to the violation of federal constitutional rights. The 

statute provides in pertinent part:

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or 

the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or any 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. Section 1983 does not create substantive rights, but 

instead provides remedies for rights established elsewhere. City of 

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 

claim, a plaintiff must establish that the defendant, acting under color of 

state law, deprived the plaintiff of a right secured by the United States 

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 

1995).

The “under color of state law” element of § 1983 excludes from its 

reach “merely private conduct, no matter how discriminatory or wrongful.” 

Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). It is beyond cavil that the 

defendants are all private entities or individuals, not arms of the state. 

See, e.g., Carver v. Plyer, 115 Fed. App’x 532, 537–39 (3d Cir. 2004) 

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(private hospital and its medical staff are not state actors). Under limited 

circumstances, a private individual may be liable under § 1983 if his or her 

conduct is so closely related to governmental conduct that it can be fairly 

viewed as conduct of the state itself. See Mark, 51 F.3d at 1142–43 

(detailing the various tests used to analyze whether private conduct may 

be treated as state action). But none of the conduct alleged in the 

complaint can be fairly viewed as state action.

Moreover, any federal civil rights claims under to 42 U.S.C. § 1983 

arising from the plaintiff’s medical treatment in Pennsylvania are subject 

to Pennsylvania’s two-year statute of limitations applicable to personal 

injury actions. Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 78–79 (3d Cir. 

1989); see also 42 Pa. Cons. Stat. Ann. § 5524. Likewise, any federal civil 

rights claims arising from the plaintiff’s medical treatment in Florida are 

subject to Florida’s four-year residual personal injury statute of 

limitations. Sneed v. Pan Am. Hosp., 370 Fed. App’x 47, 49 (11th Cir. 2010) 

(per curiam) (noting four-year statute of limitations for § 1983 claims 

under Florida law); Hernandez v. Jackson Mem. Hosp., No. 07-20229-CIV, 

2007 WL 3343075, at *3 (S.D. Fla. Nov. 8, 2007) (applying Florida’s fouryear residual personal injury statute of limitations to constitutional tort 

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claims arising out of medical treatment); see also Fla. Stat. § 95.11(3)(p).

Accordingly, it is recommended that the complaint be dismissed for 

failure to state a claim upon which relief can be granted, pursuant to 28 

U.S.C. § 1915(e)(2)(B)(ii). We further recommend that these claims be 

dismissed without leave to file a curative amendment, as amendment 

under these circumstances is clearly futile. See generally Grayson v. 

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

IV. RECOMMENDATION

For the foregoing reasons, it is hereby recommended that:

1. The complaint (Doc. 1) be DISMISSED for failure to state a 

claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and

2. The Clerk be directed to CLOSE this case.

Dated: August 15 2016 s/ Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ROSA YAP MUNCHAK,

Plaintiff,

v.

BECKY RUCKNO, et al.,

Defendants.

CIVIL ACTION NO. 4:16-cv-01639

(BRANN, J.)

(SAPORITO, M.J.)

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the 

foregoing Report and Recommendation dated August 15, 2016. Any party 

may obtain a review of the Report and Recommendation pursuant to Local 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed 

findings, recommendations or report addressing a motion 

or matter described in 28 U.S.C. § 636(b)(1)(B) or making 

a recommendation for the disposition of a prisoner case 

or a habeas corpus petition within fourteen (14) days 

after being served with a copy thereof. Such party shall 

file with the clerk of court, and serve on the magistrate 

judge and all parties, written objections which shall 

specifically identify the portions of the proposed findings, 

recommendations or report to which objection is made 

and the basis for such objections. The briefing 

requirements set forth in Local Rule 72.2 shall apply. A 

judge shall make a de novo determination of those 

portions of the report or specified proposed findings or 

recommendations to which objection is made and may 

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accept, reject, or modify, in whole or in part, the findings 

or recommendations made by the magistrate judge. The 

judge, however, need conduct a new hearing only in his 

or her discretion or where required by law, and may 

consider the record developed before the magistrate 

judge, making his or her own determination on the basis 

of that record. The judge may also receive further 

evidence, recall witnesses or recommit the matter to the 

magistrate judge with instructions.

Dated: August 15, 2016 s/ Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge

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