United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
Scully, a pro se plaintiff, filed a complaint and a
petition for leave to proceed in forma pauperis. [DE
1, 2.] Because he was trying to file this case free of
charge, I reviewed the complaint to determine if it was
frivolous or malicious, failed to state a claim upon which
relief may be granted, or sought monetary relief against a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B). If that was the case, then § 1915(e)(2)
requires that I dismiss the complaint.
reviewing his initial complaint, I was unable to discern any
cognizable claim. Instead of dismissing his complaint,
however, I granted Scully leave to amend his complaint. I
cautioned him that his complaint, as written, did not state a
claim over which I have jurisdiction. I indicated that if he
meant to bring an action under 42 U.S.C. § 1983, he was
required to allege that the defendants were acting under
color of state law. [DE 3.] Scully has since filed an amended
complaint [DE 4], which I must now review under §
document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus , 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Nevertheless, a plaintiff is responsible
for “establishing that the jurisdictional requirements
have been met.” Ctr. for Dermatology & Skin
Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir.
2014) (quoting Iddir v. I.N.S., 301 F.3d 492, 496
(7th Cir. 2014)).
has filed suit against Franciscan Health in Michigan City,
Indiana, and Dr. Noelle Cobbs. He alleges that certain hate
crimes based on his religious beliefs were committed against
him by Dr. Cobbs and the hospital. From what I can glean from
his amended complaint, Scully alleges that he was
involuntarily committed because he reported that he
“heard demons.” He appears to allege that,
because he did not have suicidal or homicidal thoughts,
rather only sleeping issues, he should not have been
involuntarily committed. He also claims that he didn't
see the proper physician or receive the proper medical
practices to help him with his sleeping issues. [DE 4.]
explained in my prior order, Federal Rule of Civil Procedure
8 mandates that a pleading must contain “a short and
plain statement of the grounds for the court's
jurisdiction.” Scully's amended complaint asserts
that he is bringing his claim under the Hate Crimes
Statistics Act, which he says was passed by Congress to
“assess and quantify hate crimes committed against
individuals such as me (based on religion).” [DE 4.]
The Hate Crimes Statistics Act, codified at 28 U.S.C. §
534, “direct[s] the Attorney General to compile data
‘about crimes that manifest evidence of prejudice based
on race, religion, sexual orientation, or
ethnicity.'” Wisconsin v. Mitchell, 508
U.S. 476, 483 n.4 (1993). It's not at all clear to me how
the facts, as Scully as alleged them, have anything to do
with the compilation of data regarding hate crimes, as
opposed to his allegation that he is the victim of a hate
crime. Scully does not challenge any data that has been
compiled, or not compiled, by the Attorney General. He also
hasn't pointed to any private right of action provided
for under the Act.
from his invocation of the Hate Crimes Statistics Act, Scully
does not identify any provision in the Constitution, laws, or
treaties of the Unites States under which his action arises.
Nor does he address whether there is diversity of
citizenship. My best guess, as I said in my prior order, is
that Scully could be asserting a claim under 42 U.S.C. §
1983. That provision, however, requires that the defendants
be acting under the color of state law. West v.
Atkins, 487 U.S. 42, 49 (1988). Scully does not allege
that Franciscan Health or Dr. Cobbs are state actors or that
they were acting under state law. He doesn't allege any
contract between the state government and the hospital or
doctor or that they were participating in any state program.
Moreover, my own research indicates that Franciscan Health is
a private hospital system. A purely private physician and a
purely private hospital are not state actors for purposes of
§ 1983. See Spencer v. Lee, 864 F.2d 1376, 1378
(7th Cir. 1989). Instead, Scully's allegations of false
imprisonment, malpractice, trespass, and invasion of privacy
are torts for which the common law of Indiana provides a
these reasons, this action must be dismissed. I typically
grant pro se litigants an opportunity to amend after
dismissing a complaint. See Luevano v. Wal-Mart, 722
F.3d 1014 (7th Cir. 2013). I have already granted Scully an
opportunity to amend his complaint to remedy the deficiencies
I have identified. [DE 3.] Scully has submitted his amended
complaint, but he has failed to address any of the problems I
noted. It appears that he will be unable to do so even if he
is granted another chance to amend his complaint. Thus, any
further attempt to amend the complaint would be futile.
See Carpenter v. PNC Bank, Nat. Ass'n, 633 F.
App'x 346, 348 (7th Cir. 2016).
case is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2) because it does not state a claim.