UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CHELSEA MODESTE,

Plaintiff,

vs.

GOOD SAMARITAN HOSPITAL, et al.,

Defendants.

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Case No. 3:18-cv-00120

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

Plaintiff Chelsea Modeste is a resident of Dayton, Ohio. She brings this case pro 

se alleging that she did not receive proper medical care when she visited the emergency 

room at Miami Valley Hospital in November 2017. She also alleges that on a separate 

occasion, she visited Good Samaritan Hospital where she was incorrectly diagnosed and, 

as a result, she began taking prescription medicine she did not need.

The Court previously granted Plaintiff’s Motion to Proceed in forma pauperis

under 28 U.S.C. § 1915. The case is presently before the Court for a sua sponte review to 

determine whether Plaintiff’s Complaint, or any portion of it, should be dismissed 

because it is frivolous, malicious, or fails to state a claim upon which relief may be 

granted. See 28 U.S.C. § 1915(e)(2)(B). If the Complaint raises a claim with an arguable 

or rational basis in fact or law, it is neither frivolous nor malicious, and it may not be 

dismissed sua sponte. Brand v. Motley, 526 F.3d 921, 923-24 (6th Cir. 2008); see Lawler 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2

v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). A Complaint has no arguable factual 

basis when its allegations are “fantastic or delusional.” Brand, 526 F.3d at 923 (quoting 

Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827 (1989)); see Lawler, 898 F.2d 

at 1199. A Complaint has no arguable legal basis when it presents “indisputably 

meritless” legal theories—for example, when the defendant is immune from suit or when 

the plaintiff claims a violation of a legal interest which clearly does not exist. See 

Neitzke, 490 U.S. at 327-28; see also Brand, 526 F.3d at 923.

A Complaint is also subject to dismissal when it fails to “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, 129 S.Ct. 1937 (2009) (internal quotation marks omitted). Pro 

se Complaints must satisfy this plausibility standard. Ogle v. Columbia Gas 

Transmission, LLC, 513 F. App’x 520, 522 (6th Cir. 2013). “Under this plausibility 

standard, the well-pleaded facts must permit more than the mere possibility of 

misconduct, they must show that the pleader is entitled to relief. A complaint that pleads 

facts that are “merely consistent with a defendant’s liability ... stops short of the line 

between possibility and plausibility of entitlement to relief.” Id. (quoting, in part,

Iqbal, 556 U.S. 678). When assessing a pro se Complaint under these standards, the 

Court accepts its allegations as true and liberally construes it in the plaintiff’s favor. See 

Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). 

Plaintiff asserts that when she went to Miami Valley Hospital’s emergency room 

in November 2017, they treated her with antibiotics without testing her for anything. 

They told her she “had an STD” and that she needed to inform her sexual partner. But, 
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they did not specify which STD [she] had.” (Doc. #2, PageID #20). Plaintiff 

encountered further problems when she went to Good Samaritan Hospital. She explains:

I ... developed a very severe yeast infection and visited Good Samaritan 

Hospital the following day[.] [T]hey examined my genital area and 

diagnosed me with genital herpes. I then informed my partner. I also made 

a follow[-]up appointment with my OB and he performed a blood test in 

which they discovered I did not have the disease. I also had been taking 

medication prescribed by the hospital for this disease in which I did not 

have. What the blood test revealed was that I just had it in the lips and I 

was informed that this disease was only transferable if I developed a cold 

sore in which I did not have.

(Doc. #2, PageID #20).

Plaintiff’s Complaint does not identify the relief she seeks, but the Civil Cover 

Sheet she completed and signed indicates that she seeks $500,000. (Doc. #1, PageID

#8). Her Civil Cover Sheet also indicates that she seeks to invoke the Court’s federalquestion jurisdiction. Id. And, where her Civil Cover sheets asks for a “[b]rief 

description of cause,” Plaintiff wrote, “Negligence.” Id.

Accepting Plaintiff’s factual allegations as true and construing her pro se

Complaint liberally in her favor, see Williams, 631 F.3d at 383, reveals that it fails to 

raise a plausible federal claim. The applicable federal statute, 42 U.S.C. § 1983, requires 

Plaintiff to allege sufficient facts to show that a defendant, while operating under the 

color of state law, deprived her of a right secured by the Constitution or laws of the 

United States. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729 (1978); see 

Sumpter v. Wayne County, 868 F.3d 473, 494 (6th Cir. 2017). Rather than implicating a 

violation of Plaintiff’s federal rights, her allegations identify matters related to state-law 

torts of medical malpractice or negligence. This is seen in her allegations that (1) she 
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was misdiagnosed with an STD without undergoing any medical testing; (2) she was 

prescribed and took medication she did not need; (3) she was incorrectly instructed by 

hospital personnel to inform her sexual partner that she had an STD; and (4) she later 

learned that she did not have the disease and that it could spread only if she developed a 

cold sore, which she did not have. These medical-malpractice or negligence allegations 

do not rest on a plausible violation of Plaintiff’s federal rights and instead arise under 

state law. See Peete v. Metro. Gov’t of Nashville, 486 F.3d 217, 222 (6th Cir. 2007) (“the 

plaintiff may be entitled to recovery under the state law of negligence, but improper 

medical treatment by a government employee, standing alone, does not violate the Fourth 

or Fourteenth Amendment.”); see also Daniels v Williams, 474 U.S. 327, 335-36, 106 

S.Ct. 662 (1986); cf. Davis v. Sapp, No. 99-5769, 2000 WL 572067, at *2 (6th Cir. 2000)

(“A patient’s disagreement with his physician over the proper medical treatment alleges 

no more than a medical malpractice claim, which is a tort actionable in state court, but is 

not cognizable under § 1983.”).

In addition, Plaintiff has failed to set forth any factual allegations capable of 

indicating the named-defendant hospitals are not private entities or committed some act 

under the color of state law. “Private individuals and companies do not act under color of 

state law.” Thomas v. Better Bus. Bureau, 79 F. App’x 748 (6th Cir.2003) (citing 

Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000)). Thus, the Complaint 

fails to raise a reasonable inference that either hospital can be considered a state actor or 

acted under the color of state law.

Accordingly, Plaintiff’s Complaint is subject to dismissal under 28 U.S.C. § 
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1915(e)(2).

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff’s Complaint be dismissed under 28 U.S.C. § 1915(e)(2); and

2. The case be terminated on the Court’s docket.

April 27, 2018 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within SEVENTEEN days 

after being served with this Report and Recommendations. Such objections shall specify 

the portions of the Report objected to and shall be accompanied by a memorandum of 

law in support of the objections. If the Report and Recommendation is based in whole or 

in part upon matters occurring of record at an oral hearing, the objecting party shall 

promptly arrange for the transcription of the record, or such portions of it as all parties 

may agree upon or the Magistrate Judge deems sufficient, unless the assigned District 

Judge otherwise directs. A party may respond to another party’s objections within 

SEVENTEEN days after being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).