Turner, Quinshela v. Jackson Park Hosp , 264 F. App'x 527 ( 2008 )


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  •                      NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with
    Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted February 13, 2008*
    Decided February 14, 2008
    Before
    Hon. JOEL M. FLAUM, Circuit Judge
    Hon. TERENCE T. EVANS, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    No. 07-3465
    QUINSHELA TURNER,                            Appeal from the United States District
    Plaintiff-Appellant,                     Court for the Northern District of Illinois,
    Eastern Division
    v.
    No. 07 C 4221
    JACKSON PARK HOSPITAL, et al.,
    Defendants-Appellees.                    Matthew F. Kennelly,
    Judge.
    ORDER
    After her husband died in the care of Jackson Park Hospital, Quinshela
    Turner sued the hospital and several doctors claiming that they violated her
    husband’s federal rights. The district court dismissed the complaint at screening
    for failure to state a claim. See 
    28 U.S.C. § 1915
    (e)(2). We affirm.
    *
    The appellees were not served with process in the district court and are not
    participating in this appeal. After an examination of the appellant’s brief and the
    record, we have concluded that oral argument is unnecessary. Thus the appeal is
    submitted on the appellant’s brief and the record. FED. R. APP. P. 34(a)(2).
    No. 07-3465                                                                    Page 2
    For purposes here we accept as true the allegations in the complaint. See
    DeWalt v. Carter, 
    224 F.3d 607
    , 612 (7th Cir. 2000). On July 29, 2005, Lugean
    Turner, a diabetic, came to the emergency room at Jackson Park Hospital because
    his blood sugar level was irregular. The emergency room doctors diagnosed Mr.
    Turner with cerebrovascular disease, commonly known as a stroke. Mrs. Turner
    did not consent to have Mr. Turner treated at the hospital because she wanted him
    transferred to the veteran’s hospital where he regularly received treatment. But
    while she called the veteran’s hospital about a possible transfer, Jackson Park
    Hospital sedated Mr. Turner and placed him on a ventilator.
    Mrs. Turner alleges that the hospital mistook her husband for another
    patient. Two days after Mr. Turner arrived in the emergency room, Mrs. Turner
    discovered that the identification bracelet on her husband’s wrist said that he was
    Tyrone Taylor, a different patient. When she told the hospital about the error, staff
    members replaced the bracelet with one displaying the correct name but the wrong
    admission date. Mrs. Turner attributes the hospital’s decision to place her husband
    on a ventilator and feeding tube to this mix-up.
    During the next three weeks that Mr. Turner spent in the hospital,
    Mrs. Turner refused to consent to the treatments the doctors recommended. But
    doctors gave him two blood transfusions anyway, placed him on dialysis, and left
    him in unsafe and unsanitary conditions where he developed bedsores. Mrs. Turner
    tried to have him released to the veteran’s hospital in early August, but Jackson
    Park Hospital refused to release him. He died on August 20, 2005.
    Mrs. Turner filed a complaint in federal district court in July 2007. She
    claims that the defendants—Jackson Park Hospital, several doctors and unnamed
    parties—violated 
    42 U.S.C. §§ 1983
    , 1985, and 1986; two provisions of the Medicaid
    Act that require Medicare providers to provide written information to patients
    about their rights to refuse treatment, see 42 U.S.C. §§ 1395cc(f)(1) and 1396a(w)(1);
    and state tort law. She also filed motions to proceed in forma pauperis, to have
    counsel appointed, and to take discovery. The district court granted her motion to
    proceed in forma pauperis but dismissed the complaint before the defendants were
    served. See 
    28 U.S.C. § 1915
    (e)(2). The court held that Mrs. Turner could not
    proceed based on diversity jurisdiction, see 
    28 U.S.C. § 1332
    (a), because she and all
    defendants are Illinois citizens, and that she did not state any viable federal
    statutory or constitutional claims. The court noted that Mrs. Turner may have a
    claim for medical malpractice and urged her to consult with counsel about filing a
    complaint in state court. The court denied the motions for counsel and discovery as
    moot. Mrs. Turner then filed a motion for reconsideration, arguing that the district
    court applied incorrect legal standards and asserting that the Federal Tort Claim
    Act (FTCA) provided the court with jurisdiction. The district court denied her
    motion, explaining that the FTCA did not apply.
    No. 07-3465                                                                     Page 3
    On appeal Mrs. Turner argues that the district court erred in dismissing her
    complaint. She contends that the civil rights statutes on which she relies apply
    because Jackson Park Hospital receives federal funds. She also argues that the
    court has diversity jurisdiction because it has personal jurisdiction over the parties
    and she seeks more than $75,000 in damages. Finally, she contends that the
    Medicaid Act provisions also allow her to make a claim.
    We review dismissal pursuant to § 1915 de novo, applying the same standard
    used for dismissals as under Federal Rule of Civil Procedure 12(b)(6). DeWalt, 224
    at 611-12. We first address a threshold question not discussed by the district court:
    whether Mrs. Turner herself may bring claims asserting violations of her deceased
    husband’s rights. State law determines whether federal causes of action survive a
    tort victim’s death. See Malone v. Nielson, 
    474 F.3d 934
    , 937 (7th Cir. 2007) (§ 1983
    claim); Hutchinson v. Spink, 
    126 F.3d 895
    , 898 (7th Cir. 1997) (§ 1983 and other
    statutory civil rights claims). In Illinois, personal injury suits survive the victim’s
    death for the benefit of the victim’s estate. See Malone, 
    474 F.3d at 937
    ; 755 ILCS
    5/27-6. But only the administrator of the estate can pursue the claims. See Will v.
    Northwestern Univ., 
    2007 WL 4410681
     at *6 (Ill. App. Dec. 14, 2007); Wilmere v.
    Stibolt, 
    504 N.E.2d 916
    , 918 (Ill. App. 1987); FED. R. CIV. P. 17(b) (capacity to sue
    determined by law of state in which district court sits). We do not know if Mrs.
    Turner is the administrator of her husband’s estate. Even assuming she is, she
    would be suing on behalf of her husband’s estate, not herself, and therefore could
    not proceed pro se if there are other beneficiaries or creditors of the estate, see
    Malone, 
    474 F.3d at 937
    ; Navin v. Park Ridge Sch. Dist. 64, 
    270 F.3d 1147
    , 1149
    (7th Cir. 2001), which we also do not know. Ordinarily, we would have Mrs. Turner
    fill in these blanks or face dismissal. See Malone, 
    474 F.3d at 937
    . But because we
    can easily discern that there is no federal jurisdiction, we may forge on.
    Diversity jurisdiction is inapplicable because, according to Mrs. Turner’s
    complaint, all parties are Illinois citizens. See 
    28 U.S.C. § 1332
    (a). Mrs. Turner
    cannot state a claim under § 1983 because she has sued a private hospital and
    private individuals and, therefore, cannot claim that defendants were acting under
    color of state law, an element of any § 1983 claim. See Case v. Milewski, 
    327 F.3d 564
    , 566 (7th Cir. 2003). The receipt of federal funds alone is not sufficient to
    establish state action. See Rendell-Baker v. Kohn, 
    457 U.S. 830
    , 840 (1982) .
    Mrs. Turner also cannot state a claim under § 1985 because she does not allege that
    the hospital, doctors, or caretakers acted with race-based animus. See Griffin v.
    Breckenridge, 
    403 U.S. 88
    , 102 (1971) (establishing that § 1985(3) claim requires
    race- or class-based animus); Green v. Benden, 
    281 F.3d 661
    , 665 (7th Cir. 2002).
    Because she cannot state a § 1985 claim, her § 1986 claim fails as well. See Keri v.
    Bd. of Trs. of Purdue Univ., 
    458 F.3d 620
    , 643 (7th Cir. 2006) (reasoning that § 1986
    claim requires § 1985 violation); Hicks v. Resolution Trust Corp., 
    970 F.2d 378
    , 382
    (7th Cir. 1992). As to Mrs. Turner’s claims under the Medicaid Act, she has given
    No. 07-3465                                                                  Page 4
    us no reason to believe that a private right of action exists under the specific
    sections to which she refers. See Alexander v. Sandoval, 
    532 U.S. 275
    , 286-87
    (2001) (reasoning that courts must have reason to believe that Congress intended to
    imply private right of action when statute does not include explicit one).
    Mrs. Turner also argues on appeal that the court has jurisdiction based on
    several new theories, including that the hospital and doctors violated the Americans
    with Disabilities Act and her husband’s constitutional right to privacy. Because she
    raises these claims for the first time on appeal, we do not address them. See County
    of McHenry v. Ins. Co. of the West, 
    438 F.3d 813
    , 819-20 (7th Cir. 2006).
    Finally, Mrs. Turner argues on appeal that the district court improperly
    denied her post-dismissal motion for reconsideration, which we treat as a Rule 59(e)
    motion. We review that denial for abuse of discretion. Neal v. Newspaper Holdings,
    Inc., 
    349 F.3d 363
    , 368 (7th Cir. 2003). In her motion, she did not point to any
    newly discovered evidence or manifest error of law or fact. See 
    id.
     Rather, she
    rehashed the earlier arguments and added a claim under the FTCA. But the FTCA
    does not apply because there are no federal employees involved in this case. See 
    28 U.S.C. § 1346
    (b); Alinsky v. United States, 
    415 F.3d 639
    , 643 (7th Cir. 2005).
    We therefore AFFIRM the decision of the district court.