1

 Plaintiff’s answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias

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

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RUSSELL B. CANFIELD, )

Plaintiff, )

vs. ) No. 3:05-CV-1828-D 

)

BAYLOR MEDICAL CENTER, )

Defendant. )

AMENDED

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. Upon

further review of the matters presented in the instant action, the undersigned Magistrate Judge

VACATES the prior Findings, Conclusions, and Recommendation entered in this case, and submits

the following amended findings, conclusions, and recommendation:

I. BACKGROUND

On September 14, 2005, plaintiff commenced this civil action against Baylor Medical Center

for alleged violations of unspecified state and federal statutes related to medicare and medicaid

programs. (Compl. at 1.) He claims that defendant violated “stipulations of Medicare Medicaid”

by failing “to provide proper medical” to his wife, thus causing her death on September 11, 2003.

(Id. at 2.) His complaint describes a case of negligence against defendant. (Id. at 5-6.) In answer

to a Magistrate Judge’s Questionnaire (MJQ),1

 he indicates that his claims are premised on negligence, failure to abide by rules and statutes of medicaid and medicare, and “other claims” that appear

 

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in original complaint. (See Answer to Question 2 of MJQ.) Although the Court asked plaintiff to

identify the alleged violated rules, plaintiff identified no specific federal rule or statute violated by

defendant. (See Answer to Question 3 of MJQ.) 

II. JURISDICTION

“Federal courts are courts of limited jurisdiction. They possess only that power authorized

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit

lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the

party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

Courts have “a continuing obligation to examine the basis for their jurisdiction.” See MCG,

Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). The Court may sua sponte raise

the jurisdictional issue at any time. Id.; Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th

Cir. 1999). In fact, Fed. R. Civ. P. 12(h)(3) requires that federal courts dismiss an action “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the

subject matter.” 

To aid in determining the existence of federal jurisdiction, Fed. R. Civ. P. 8(a) requires plaintiffs to make a “short and plain statement of the grounds upon which the court’s jurisdiction depends.” Plaintiff’s complaint simply refers to unspecified violations of medicare and medicaid

programs, and invokes jurisdiction pursuant to 28 U.S.C. § 1331. As already mentioned, furthermore, plaintiff identified no specific federal violation in his answers to the MJQ. 

 

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The mere citation of § 1331 does not bestow jurisdiction on this Court. Although“[t]he

district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws,

or treaties of the United States”, 28 U.S.C. § 1331, “a suit arises under the Constitution and laws

of the United States only when the plaintiff’s statement of his own cause of action shows that it is

based upon those laws or that Constitution”, Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149,

152 (1908). “There is no independent ground for federal question jurisdiction under § 1331” when

the asserted federal statute “does not authorize the suit.” Bauhaus USA, Inc. v. Copeland, 292 F.3d

439, 442 n.6 (5th Cir. 2002). 

For an action to be brought in federal court under § 1331, federal law must create the right

to sue. It is not enough that the case refers to federal law. As stated by the Supreme Court, 

a complaint alleging a violation of a federal statute as an element of a state cause of

action, when Congress has determined that there should be no private, federal cause

of action for the violation, does not state a claim “arising under the Constitution,

laws, or treaties of the United States.”

Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 817 (1986) (considering a state action

in which plaintiffs based their negligence claim in part on alleged violation of the Federal Food,

Drug, and Cosmetic Act); accord Fabrique, Inc. v. Corman, 813 F.2d 725, 725-26 (5th Cir. 1987)

(recognizing that Merrell Dow “rejected the ‘ingredient’ test of federal question jurisdiction”, and

dismissing a claim founded on 11 U.S.C. § 363 for lack of subject matter jurisdiction). The Fifth

Circuit has also recognized “that the presence of a federal issue, however much it may dominate [a]

case, is insufficient to confer federal-question jurisdiction. On the contrary, such jurisdiction is conferred by statute only when the plaintiff is asserting a right created by federal law.” Oliver v.

Trunkline Gas Co., 789 F.2d 341, 343 (5th Cir. 1986). When “Congress has provided no federal

 

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 Although not invoked by plaintiff, 42 U.S.C. § 1983 provides a basis for federal jurisdiction against state actors. More

specifically, that statute “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, and . . . it afford[s] redress for

violations of federal statutes, as well as of constitutional norms.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). 

4

private cause of action, to allow the presence of a federal issue to give federal-question jurisdiction

over a state-law cause of action would ‘flout, or at least undermine’ congressional intent.” Griffis v.

Gulf Coast Pre-Stress Co., 850 F.2d 1090, 1092 (5th Cir. 1988) (affirming dismissal pf action for lack

of subject matter jurisdiction despite plaintiff’s reliance on a federal law, 33 U.S.C. § 905(a), that

created no right of action against the defendants). 

In this instance, plaintiff has not carried his burden to show that his action arises “under the

Constitution, laws, or treaties of the United States.” Although his complaint refers to federal law,

such law does not create a general right to sue. See Scott v. Pfizer Inc., No. 04-41265, 2006 WL

1488842, at *2 (5th Cir. May 23, 2006) (holding that neither the Medicare Act nor the Medicaid

Act provide a private cause of action that confers federal jurisdiction over a private provider of

services). Such Acts simply do not “envision suit” against such a provider. Stewart v. Bernstein, 769

F.2d 1088, 1094 (5th Cir. 1985) (expressly dealing with Medicaid Act). As recognized by those

cases, however, a private cause of action may exist against a state provider of services.2

 In light of

the potential for such private cause of action, the Court finds that jurisdiction exists over plaintiff’s

federal claims, and proceeds to consider the claims on the merits. See Reeves v. Guiffrida, 756 F.2d

1141, 1143 (5th Cir. 1985) (holding that when a “challenge to the court’s jurisdiction is also a

challenge to the existence of a federal cause of action, the proper course of action for the district

court . . . is to find that jurisdiction exists and deal with the [matter] as a direct attack on the merits

of plaintiff’s case”); Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1346 (5th Cir. 1985)

 

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(holding that “[w]hether a federal court has jurisdiction to decide a case and whether a plaintiff has

a cause of action under a federal statute are distinct inquiries that must be addressed separately”).

III. PRELIMINARY SCREENING

The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject

to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). That statute provides for sua sponte dismissal

if the Court finds the complaint “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.”

Because plaintiff sues a private provider of services, see United States v. Baylor Univ. Med. Ctr.,

711 F.2d 38, 40 (5th Cir. 1983); Knight v. Stoltz, No. 3:01-CV-1398-L, 2001 WL 1545767, at *2

(N.D. Tex. Nov. 30, 2001) (accepting findings, conclusions, and recommendation of magistrate

judge), for alleged violations of the Medicare and Medicaid Acts, his federal claims fail to state a

claim upon which relief may be granted. To the extent a private cause of action exists under those

Acts, such cause of action is not available against a private provider of services. See Scott v. Pfizer

Inc., No. 04-41265, 2006 WL 1488842, at *2 (5th Cir. May 23, 2006); Stewart v. Bernstein, 769 F.2d

1088, 1094 (5th Cir. 1985). Furthermore, to state a claim under 42 U.S.C. § 1983, plaintiff must

allege facts that show (1) he has been 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).

In general, a private hospital is not a state actor. Bass v. Parkwood Hosp., 180 F.3d 234, 241-

43 (5th Cir. 1999). Although a private party may be deemed to be acting “under color of state law”

 

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in certain circumstances, such as when the private party is “jointly engaged with state officials in the

prohibited action”, Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970), or when the private actor

“performs a function which is traditionally the exclusive province of the state” or when “there is a

nexus between the state and the action of the private defendant such that the action is fairly

attributable to the state”, Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989), the current action

presents no facts for finding Baylor Medical Center to be a state actor. Plaintiff alleges no conspiracy

between defendant and any state official. A hospital does not perform a function that is traditionally

the exclusive province of the State. In addition, there is no nexus between the State and the actions

of defendant such that the defendant’s actions are fairly attributable to the State. For these reasons,

plaintiff has failed to state a viable claim under the Medicare and Medicaid Acts or § 1983, and his

federal claims should be dismissed because they fail to state a claim upon which relief may be

granted.

Plaintiff also assert unspecified violations of state law. Section 1367 of Title 28 of the United

States Code permits federal courts to exercise supplemental jurisdiction over pendent state claims.

Whether to exercise such jurisdiction after dismissing the underlying federal claims is a matter left

to the sound discretion of the Court. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966);

Heaton v. Monogram Credit Card Bank, 231 F.3d 994, 997 (5th Cir. 2000). When the Court dismisses the federal claims at a preliminary stage of litigation, judicial economy argues against the

exercise of pendent or supplemental jurisdiction over state claims. See LaPorte Constr. Co. v.

Bayshore Nat’l Bank, 805 F.2d 1254, 1257 (5th Cir. 1986). In this instance, if the Court dismisses

plaintiff’s federal claims in accordance with these findings and recommendation, it should decline

 

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to exercise pendent or supplemental jurisdiction over his state claims. The Court should dismiss the

state claims without prejudice to plaintiff pursuing them in state court. See Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 350 (1988). 

IV. RECOMMENDATION

For the foregoing reasons, it is recommended that the Court DISMISS plaintiff’s purported

federal claims with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). It is further recommended that

the Court summarily DISMISS his pendent state claims without prejudice to plaintiff pursuing them

in state court. 

SIGNED this 12th day of August, 2006.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings, conclusions and recommendation must file and serve written

objections within ten days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions, or recommendation to which objections are being made. The

District Court need not consider frivolous, conclusory, or general objections. Failure to file written

objections to the proposed findings, conclusions, and recommendation within ten days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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