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Shuper v. Hoffman

United States District Court, District of Maine

December 4, 2014

ALLA IOSIFOVNA SHUPER, Plaintiff,
v.
DR. HOFFMAN, et al., Defendants.

ORDER ON ALL PENDING MOTIONS

GEORGE Z. SINGAL UNITED STATES DISTRICT JUDGE

1. Application To Proceed In Forma Pauperis

Before the Court are Plaintiff Alla Iosifovna Shuper’s Applications to Proceed In Forma Pauperis (ECF Nos. 6, 13 & 17). The Court hereby GRANTS Plaintiff leave to proceed in forma pauperis in this action.

2. Motions For Reconsideration

Also before the Court are the Motion for Reconsideration (ECF No. 5) and the Motion to Amend the Motion for Reconsideration (ECF No. 7). Both of these Motions pertain to the Court’s November 18, 2014 Order requesting that Plaintiff either pay the filing fee or file a request to proceed in forma pauperis in each of her docketed cases. (See Order (ECF No. 4).) In light of the Court’s decision to grant Plaintiff’s request to proceed in forma pauperis, the Court finds both of these requests for reconsideration (ECF Nos. 5 & 7) MOOT.[1] The Court notes that similar motions for reconsideration were filed in each of Plaintiff’s then twenty-four cases.[2]

3. Appeal To The Chief Judge

Plaintiff Shuper has also filed an Appeal to the Chief Judge (ECF No. 8). To the extent that Plaintiff Shuper is appealing the Court’s November 18, 2014 Order to the Chief Judge, there is no such right to appeal to the Chief Judge, and it is therefore DENIED. As with the Motion for Reconsideration and the Motion to Amend the Motion for Reconsideration, pro se Plaintiff Shuper’s Appeal to the Chief Judge was filed in each of her then twenty-four cases.

4. Change In Pro Se Filing Status

Plaintiff Shuper has also filed a Motion to Accept the Change in Pro Se Filing, thereby requesting that she be permitted to file documents manually rather than electronically (ECF No. 10). The Court GRANTS the Motion, which has also been filed in each of her cases.

5. Review Of The Complaint Under 28 U.S.C. § 1915(e)(2)

Upon the Court’s review of the Complaint, the Court concludes that the case must be dismissed in accordance with 28 U.S.C. § 1915(e)(2). Through the handwritten Complaint, Plaintiff Shuper attempts to bring a case against Dr. Hoffman, Registered Nurse Erica, Security Officer Dana and Mercy Hospital. The Complaint alleges that on the evening of November 7, 2014, at the Mercy Hospital Emergency Room, Dr. Hoffman directed Nurse Erica to give Plaintiff Shuper 2 mg of Clonazepam.[3] (Compl. (ECF No. 1.) ¶¶ 1, 3.) At her request, Plaintiff Shuper was given a lesser dose and slept for a short period of time. (Id. ¶ 4.) Nurse Erica then returned to Plaintiff and stated that Plaintiff had to go home, even though Plaintiff Shuper had complained of feeling unsafe at home because she feared retaliation by an officer of the Falmouth Police Department. (Id.) The Complaint further states that Plaintiff Shuper was afraid to return home because she had seen a taxi near her apartment complex and all but one or two individuals in the complex own a car. (Id. ¶¶ 5-8.) The Complaint further alleges that a security officer for Mercy Hospital, Dana, forcibly removed Plaintiff Shuper from her room before she had the opportunity to speak with Dr. Hoffman. (Id. ¶ 10.) Plaintiff Shuper states that she has been “on disability” since January of 2007. (Id. ¶ 12.)

Plaintiff Shuper asserts that the actions described in the Complaint constitute a violation of 42 U.S.C. § 1983, the Americans with Disabilities Act and the Maine Human Rights Act. (Compl. ¶ 10.) For relief, the Complaint requests money damages in the amount of $100, 000 from each of Registered Nurse Erica, Security Officer Dana and Mercy Hospital, and $200, 000 from Dr. Hoffman.

Liberally construing the Complaint, the Court cannot see any claim against the named Defendants. First, to the extent that Plaintiff Shuper asserts a claim for violations of 42 U.S.C. § 1983, in order to be held liable under § 1983, a defendant must be a state actor. Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005) (stating that “a plaintiff claiming a § 1983 violation must allege that a person or persons acting under color of state law deprived him of a federal constitutional or statutory right. . . . If the plaintiff fails to allege facts sufficient to establish . . . that the defendant or defendants acted under color of state law, then the § 1983 claim is subject to dismissal. (internal citations omitted).) Plaintiff Shuper does not allege that any of the Defendants are state actors nor do the facts support such a finding. See id. at 4-9 (finding that a private hospital, private healthcare services provider and private physicians were not state actors and could not be held liable under section 1983). Therefore, the Complaint does not state a claim under § 1983.

The Complaint also fails to state a claim for a violation of the Americans with Disabilities Act (“ADA”). “As an initial step in making out any ADA claim, the Plaintiff must establish that [s]he is a person with a ‘disability.’” Bailey v. Georgia-Pac. Corp., 176 F.Supp.2d 3, 7 (D. Me. 2001) aff'd on other grounds, 306 F.3d 1162 (1st Cir. 2002). The Complaint does not allege that Plaintiff Shuper is disabled or that any actions were taken on the basis of that disability. Even assuming that Plaintiff sufficiently alleged that she was disabled, the Complaint would still fail to state a claim under the ADA. Title II of the ADA applies to public entities alone. See 42 U.S.C. § 12132. A “public entity” is a “department, agency, special purpose ...


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