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Morin v. Russell Park Rehab & Living

United States District Court, District of Maine

August 8, 2014

GERALD E. MORIN, Personal Representative of the Estate of Mary M. Morin, Plaintiff
v.
RUSSELL PARK REHAB & LIVING and CLOVER MANOR NURSING HOME, Defendants

Plaintiff GERALD E MORIN Representative of the Estate of Mary M Morin represented by GERALD E MORIN

Defendant RUSSELL PARK REHAB & LIVING represented by TIMOTHY D. CONNOLLY PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP ONE CITY CENTER

Defendant CLOVER MANOR NURSING HOME represented by JONATHAN W. BROGAN NORMAN, HANSON & DETROY TWO CANAL PLAZA JOSHUA D. HADIARIS NORMAN, HANSON & DETROY TWO CANAL PLAZA

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND RECOMMENDED DISMISSAL OF THE CASE IN ITS ENTIRETY

John H. Rich III United States Magistrate Judge

On May 30, 2014, when he filed the wrongful death complaint in this case as the personal representative of the estate of his wife, the pro se plaintiff also filed an application for leave to proceed in forma pauperis. ECF No 5. I grant the plaintiff’s request for leave to proceed in forma pauperis, but also recommend that the court dismiss the action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).

In forma pauperis status is available under 28 U.S.C. § 1915(a)(1). However, section 1915(e)(2)(B) also provides, in relevant part:

[T]he court shall dismiss the case at any time if the court determines that
(B) the action or appeal --
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B).

The complaint asserts claims for the wrongful death of Mary M. Morin and deprivation of the plaintiff’s constitutional rights, invoking this court’s jurisdiction on the basis of 42 U.S.C. § 1983 and the Nursing Home Reform Amendments (“NHRA”), codified at 42 U.S.C. § 1396r. Pro Se Civil Complaint (“Complaint”) (ECF No. 1) at [3], 27 [5].[1] It alleges that Mary M. Morin died as a result of inadequate medical care by defendant Russell Park Rehab & Living and the failure of defendant Clover Manor Nursing Home to timely call a physician to examine her or to call an ambulance to take her to the hospital. Id. at [4].

A pro se plaintiff’s complaint must be read liberally, Donovan v. Maine, 276 F.3d 87, 94 (1st Cir. 2002). Therefore, I assume that the plaintiff means to assert that the constitutional rights of Mary M. Morin were violated by the defendants, not his own constitutional rights. His complaint fails to state a claim upon which relief may be granted under 42 U.S.C. ยง 1983, because the defendants are private parties that cannot be deemed to have been acting under color of ...


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