IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARILYN D. SMITH, )

)

Plaintiff, )

vs. ) No. 3:22-CV-1982-C (BH)

)

IBIDUNNI UKEGBU, et al., )

)

Defendants. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS AND RECOMMENDATION

Based on the relevant filings and applicable law, the plaintiff’s sole federal claim should be

DISMISSED with prejudice for failure to state a claim, and her remaining state law claims should

be DISMISSED without prejudice to pursuing them in state court. 

I. BACKGROUND

Marilyn D. Smith (Plaintiff ) sues a private physician who she “presumes” is a resident of

the State of Texas, Ibidunni Ukegbu (Defendant), for “Medical Indifference, Medical Malpractice,

Medical Insurance Fraud”, intentional infliction of psychological mental and emotional pain and

suffering, fraud, and negligence.2

 (See doc. 3 at 2; doc. 8 at 2, 8-13.)3 She also sues Defendant

under 42 U.S.C. § 1983 for violation of her constitutional rights to be free from cruel and unusual

punishment without due process under the First, Fourth, Eighth and Fourteenth Amendments,

contending that Defendant is a state actor because she has a medical license issued by the State of

1

 By Special Order No. 3-251, this pro se case has been automatically referred for full case management.

2

 Although Plaintiff initially also listed slander and libel as causes of action, she subsequently clarified in her answers

to a magistrate judge’s questionnaire that she is not asserting those causes of action at this time. (Compare doc. 3 at 2

with doc. 8 at 11.) 

3

 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page

numbers at the bottom of each filing.

Case 3:22-cv-01982-C-BH Document 9 Filed 09/28/22 Page 1 of 7 PageID 55
Texas. (See doc. 8 at 13-14.) Plaintiff claims that she has yet to be actually examined by Defendant

despite numerous appointments for which her insurance has been billed and paid, that she was

instead only seen by Defendant’s nurse, that she was misdiagnosed, and that neither Defendant nor

the nurse would fill out disability paperwork for her. (See doc. 3 at 4-5, 7; doc. 8 at 3-5, 8-11, 15-

17.) She seeks monetary damages in excess of $20,000,000.00. (Id. at 7; doc. 8 at 15-17.)

II. PRELIMINARY SCREENING

 Because she is proceeding in forma pauperis, Plaintiff’s complaint is subject to judicial

screening under 28 U.S.C. § 1915(e)(2)(B). It provides for sua sponte dismissal of the complaint,

or any portion thereof, if it is found to be frivolous or malicious, if it fails to state a claim upon

which relief may be granted, or if it seeks monetary relief against a defendant who is immune from

such relief. A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” 

Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is

“based on an indisputably meritless legal theory.” Id. at 327. 

The analysis for determining whether a complaint fails to state a claim under §

1915(e)(2)(B)(ii) is the same one employed under Fed. R. Civ. P. 12(b)(6). See Fierro v. Knight

Transp., No. EP-12-CV-218-DCG, 2012 WL 4321304, at *7 (W.D. Tex. Sept. 18, 2011), slip copy,

(citing Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam) (applying the same standard of

review applicable to dismissals under Rule 12(b)(6) for screening dismissals under §

1915(e)(2)(B)(ii)); Holt v. Imam, No. C-07-406, 2008 WL 1782351, at *2 (S.D. Tex. Apr. 17, 2008)

(citing Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (noting that § 1915A(b)(1), §

1915(e)(2)(B)(ii), and Rule 12(b)(6) all employ the same language—“failure to state a claim upon

which relief may be granted”). Under Rule 12(b)(6), a court cannot look beyond the face of the

2

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pleadings. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). “[P]leadings” for purposes of a motion

to dismiss include attachments to the complaint. In re Katrina Canal Breaches Litig., 495 F.3d 191,

205 (5th Cir. 2007). Pleadings must show specific, well-pleaded facts, not mere conclusory

allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The

court must accept those well-pleaded facts as true and view them in the light most favorable to the

plaintiff. Baker, 75 F.3d at 196. 

“[A] well-pleaded complaint may proceed even if its strikes a savvy judge that actual proof

of [the alleged] facts is improbable, and ‘that a recovery is very remote and unlikely.’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). Nevertheless, a plaintiff must

provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Id. at 555; accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasizing that

“the tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions”). The alleged facts must “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. In short, a complaint fails to state a claim upon which

relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible

on its face.” Id. at 570. When plaintiffs “have not nudged their claims across the line from

conceivable to plausible, their complaint must be dismissed.” Id.; accord Iqbal, 556 U.S. at 678.

III. SECTION 1983

Plaintiff specifically sues Defendant under 42 U.S.C. § 1983. It “provides a federal cause

of action for the deprivation, under color of law, of a citizen’s ‘rights, privileges, or immunities

secured by the Constitution and laws’ of the United States.” Livadas v. Bradshaw, 512 U.S. 107,

132 (1994). To state a claim under § 1983, a plaintiff must allege facts that show (1) he has been

3

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deprived of a right secured by the Constitution and the laws of the United States and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978);

Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005).

Here, in none of her filings4

 does Plaintiff allege any facts to support her claim that

Defendant is a state actor. She relies solely on the fact that Defendant has a medical license from

the State of Texas. The United States Court of Appeals for the Fifth Circuit has specifically stated

that “[t]he existence of state regulation..., however, do[es] not necessarily create state action” for

purposes of § 1983. See Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1349 (5th Cir.1985)

(holding that a private nursing home licensed and investigated by the state was not a state actor for

purposes of a §1983 claim); see also Marts v. Times Picayune Publishing Co., 47 F.3d 423 (5th Cir.

1995) (“A private entity does not become a state actor because it holds a license granted by the

state.”) (citing Gipson v. Rosenberg, 797 F.2d 224, 225 (5th Cir.1986), cert. denied, 481 U.S. 1007

(1987)). A doctor is not a state actor simply because he or she has been licensed to practice

medicine by the State of Texas. See Hollice v. Beaumont Baptist Behavioral Health Center, No.

1:21-CV-195, 2021 WL 4271815, at *2–3 (E.D. Tex. Aug. 25, 2021) (rejecting claim that a licensed

Texas physician who participated in an involuntary commitment proceeding was a state actor simply

because he had a Texas state medical license) (citing Bass v. Parkwood Hosp., 180 F.3d 234, 243

(5th Cir. 1999) (collecting cases)), rec. adopted, 2021 WL 4263059 (E.D. Tex. Sep. 17, 2021);

Mitchell v. Clinkscales, No. 1:06-CV-682, 2007 WL 128952, at *1–2 (E.D. Tex. Jan. 16, 2007)(“The

fact that the state of Texas licenses and regulates dentists does not automatically expose licensed

dentists to section 1983 liability.”). Plaintiff’s conclusory statement that Defendant is a state actor

4

 Plaintiff’s answers to a magistrate judge’s questionnaire constitute an amendment to her complaint. See Macias v. Raul

A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).

4

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simply because she has a state medical license is insufficient to show state action or otherwise state

a plausible § 1983 claim upon which relief may be granted. Her § 1983 claim should be dismissed

with prejudice for failure to state a claim.

IV. STATE LAW CLAIMS

Plaintiff also asserts several causes of action against Defendant that arise under state law.

Under 28 U.S.C. § 1367(a), federal courts “have supplemental jurisdiction over all other

claims that are so related to claims in the action within [its] original jurisdiction that they form part

of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. §

1367(a). In essence, § 1367(a) grants courts the “power to hear a state law claim under pendent or

supplemental jurisdiction if (1) the federal issues are substantial, even if subsequently decided

adverse to the party claiming it; and (2) the state and federal claims derive from a common nucleus

of operative fact.” McKee v. Texas Star Salon, LLC, No. CIV.A.3:06-CV-879BH, 2007 WL

2381246, at *4 (N.D. Tex. Aug. 21, 2007) (citations omitted); see United Mine Workers v. Gibbs,

383 U.S. 715, 725 (1966); Heaton v. Monogram Credit Card Bank, 231 F.3d 994, 997 (5th Cir.

2000). 

When all federal claims are dismissed prior to trial, the general rule in this circuit is to

decline exercising jurisdiction over the remaining state law claims. LaPorte Constr. Co. v. Bayshore

Nat’l Bank, 805 F.2d 1254, 1257 (5th Cir. 1986); see also 28 U.S.C. § 1367(c)(3).5 This rule is

5

 Under 1367(c), a court may decline to exercise supplemental jurisdiction over a state claim if: 

(1) the claim raises a novel or complex issue of law, 

(2) the claim substantially predominates over the claim or claims over which the district court has

original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

5

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“neither mandatory nor absolute.” Smith v. Amedisys Inc., 298 F.3d 434, 447 (5th Cir. 2002)

(citation omitted). Rather, district courts are given wide discretion in deciding whether to exercise

jurisdiction under such circumstances. See Heaton v. Monogram Credit Card Bank, 231 F.3d 994,

997 (5th Cir. 2000); Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993); see also United Mine

Workers, 383 U.S. at 726 (“[P]endent jurisdiction is a doctrine of discretion, not of [a] plaintiffs

right.”). In exercising this discretion, courts should consider issues of judicial economy,

convenience, and fairness to the litigants. LaPorte Constr. Co., 805 F.2d at 1257. However, “no

single factor is dispositive.” Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008).

Here, because Plaintiff’s sole federal claim is subject to dismissal for failure to state a claim,

and determination of the claim did not require consideration of the state law claims, the Court should

decline to exercise supplemental jurisdiction over her remaining state law claims, and they should

be dismissed without prejudice to pursuing them in state court. See Carnegie–Mellon Univ. v. Cohill,

484 U.S. 343, 350 (1988); Sibley v. Lemaire, 184 F.3d 481, 490 (5th Cir.1999) (affirming the district

court’s decision not to hold a jury trial on the state negligence claim after it granted summary

judgment on the § 1983 claims).

V. RECOMMENDATION

The plaintiff’s federal law claim against the defendant should be DISMISSED with

prejudice for failure to state a claim under 28 U.S.C. § 1915(e)(2)(b). The Court should decline to

exercise supplemental jurisdiction over her remaining state law claims, and they should be

DISMISSED without prejudice to pursuing them in state court.

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1376(c). 

6

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SO ORDERED this 28th day of September, 2022.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions and

recommendation must file specific written objections within fourteen days after being served with

a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must

identify the specific finding or recommendation to which objection is made, state the basis for the

objection, and specify the place in the magistrate judge’s findings, conclusions and recommendation

where the disputed determination is found. An objection that merely incorporates by reference or

refers to the briefing before the magistrate judge is not specific. Failure to file specific written

objections will bar the aggrieved party from appealing the factual findings and legal conclusions of

the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain

error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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