2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-29-2009

Amir McCain v. Episcopal Hosp

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3092

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Recommended Citation

"Amir McCain v. Episcopal Hosp" (2009). 2009 Decisions. Paper 354.

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CLD-020 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3092

___________

AMIR HAKIM MCCAIN,

ADMINISTRATOR OF THE ESTATE

OF DECEASED JUANITA FELDER

AND A/K/A JOHN MCCAIN, AN-NISA,

INDIVIDUALLY IN HIS OWN RIGHT,

Amir Hakim McCain,

Appellant

v.

EPISCOPAL HOSPITAL; 

HOSPITAL OF THE UNIVERSITY OF 

PENNSYLVANIA

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania 

(D.C. Civil No. 09-cv-02385)

District Judge: Honorable Eduardo Robreno

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 22, 2009

Before: BARRY, FISHER and COWEN, Circuit Judges

(Opinion filed: October 29, 2009)

_________

OPINION

_________
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PER CURIAM

Amir Hakim McCain appeals from the District Court’s order dismissing his

complaint. For the following reasons, we will dismiss McCain’s appeal pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).

I.

On May 26, 2009, McCain, acting as “Administrator of the Estate of Deceased

Juanita Felder and a/k/a John McCain, An-Nisa McCain, Individually in his own Right,”

filed a complaint in the United States District Court for the Eastern District of

Pennsylvania against Episcopal Hospital and the Hospital of the University of

Pennsylvania. McCain’s complaint alleged that the hospitals, acting under color of state

law, violated his constitutional rights by refusing to turn over biological, toxicological,

and DNA tests that McCain believes would justify further criminal or civil actions against

the hospitals in connection with the deaths of Juanita Felder and McCain’s unborn son. 

On June 5, 2009, McCain moved to proceed with his claims in forma pauperis. On

July 1, 2009, the District Court granted in forma pauperis status to appellant, and

dismissed his complaint under 28 U.S.C. § 1915(e)(2). 

II.

We have jurisdiction over this appeal under 28 U.S.C. § 1291. Because McCain is

proceeding in forma pauperis, we must dismiss the appeal under 28 U.S.C. §

1915(e)(2)(B) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S.
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319, 325 (1989).

This is McCain’s second attempt, as a pro se litigant, to bring a § 1983 action on

behalf on Juanita Felder. See McCain v. Abraham, C.A. No. 08-3375, 2009 WL 1608511

(3d. Cir. June 10, 2009). We reiterate that “a pro se litigant who is not an attorney may

not represent someone else in federal court.” Id. at *1; see also Osei-Afriyie v. Med.

Coll. of Penn., 937 F.2d 876, 882 (3d Cir. 1991) (holding that a non-attorney parent could

not proceed pro se on behalf of his or her children in federal court). Furthermore, as we

explained to McCain in dismissing his previous appeal, § 1983 “does not provide a cause

of action on behalf of a deceased based upon alleged violation of the deceased’s civil

rights which occurred after his death.” McCain, 2009 WL 1608511, at *1 (quoting

Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir. 1979)). For these reasons, McCain lacks

standing to litigate claims on behalf of Felder or her estate. 

To the extent that McCain also seeks redress for alleged violations of his own civil

rights, McCain’s claims are without merit. To state a claim under 42 U.S.C. § 1983,

McCain must show that the Episcopal Hospital and the Hospital of the University of

Pennsylvania (1) violated his federal or Constitutional rights, and (2) that they did so

while acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56

(1978); Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). McCain has

failed to articulate how the hospitals’ alleged actions - in essence, withholding

information that could potentially form the basis of a hypothetical future criminal or civil
action - violated a right that either the Constitution or federal law protects. 

Furthermore, even assuming that withholding information under these

circumstances somehow violated a cognizable federal right, McCain make no allegations

to support his claim that the hospitals were acting under color of state law. “[T]here is no

liability under § 1983 for those not acting under color of law.” Groman, 47 F.3d at 638. 

Although McCain asserts that the hospitals were acting under color of state law, there is

no allegation that the Episcopal Hospital or the Hospital of the University of Pennsylvania

are state actors, that they have “acted together with” or have “obtained significant aid

from state officials,” or that their conduct is “otherwise chargeable to the State.” Lugar v

Edmondson Oil Co., Inc., 457 U.S. 922, 923 (1982); Jordan v. Fox, Rothschild, O’Brien

& Frankel, 20 F.3d 1250, 1264-65 (3d Cir. 1994). Other than McCain’s bare assertion,

there is nothing in the complaint to suggest that either defendant was acting under color

of state law. Ashcroft v. Iqbal, U.S. , 129 S. Ct. 1937, 1951 (2009) (holding

that conclusory allegations are not entitled to the assumption of truth). 

III.

After conducting an independent review, we conclude that McCain’s appeal is

without arguable merit. We will dismiss the appeal pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). 

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