Hickey v. Metrowest Medical Center , 193 F. App'x 4 ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
Nos. 04-2461
04-2462
MARY ANN HICKEY,
Plaintiff, Appellant,
v.
METROWEST MEDICAL CENTER, STEPHEN KRUSKALL
AND CONSTANCE A. COLLINS,
Defendants, Appellees.
___________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Mary Ann Hickey on brief pro se.
James L. Wilkinson and Murray, Kelly & Bertrand, P.C., on
brief for appellee MetroWest Medical Center.
Douglas A. Morgan, Holly L. Parks and Rindler Morgan, P.C., on
brief for appellee Stephen Kruskall, M.D.
Richard W. Jensen and Morrison Mahoney LLP, on brief for
appellee Constance A. Collins, M.D.
July 19, 2006
Per Curiam. Mary Ann Hickey has appealed the dismissal
of her complaint.1 We affirm.
Contrary to Hickey's contention, the district court did
not err in granting the motion to dismiss filed by the defendant
MetroWest Medical Center ("the Hospital") on the ground that Hickey
had failed to allege any viable federal claim or alternate basis
for federal jurisdiction. On appeal, Hickey raises a procedurally-
based argument by pointing to Fed. R. Civ. P. 12(g), which provides
that a defense is waived if not included in any first motion filed
under Rule 12. She notes that the Hospital had previously
unsuccessfully moved to dismiss for insufficient service of
process. Although the successful motion to dismiss was the second
motion to dismiss filed by the Hospital, Rule 12(h) provides
exceptions to waiver for the defense of failure to state a claim,
see Fed. R. Civ. P. 12(h)(2), and lack of subject matter
jurisdiction, see Fed. R. Civ. P. 12(h)(3). Accordingly, there was
no error.
1
Hickey filed two notices of appeal. Appeal No. 04-2461 is
from a September 16, 2004 Order dismissing claims against two named
defendants. Appeal No. 04-2462 is from the September 21, 2004
Order dismissing the entire case. Nothing turns on the distinction
between the two appeals.
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Hickey makes no substantial argument that the district
court erred in finding that the Hospital was not a state actor and
that ruling appears to us to be clearly correct. Therefore,
essentially for the reasons stated in the district court's Order of
November 6, 2003, we affirm the dismissal of the federal claims
against the Hospital and the dismissal of the state law claims
against that entity without prejudice.
To the extent that Hickey purports to raise federal civil
rights claims against Dr. Collins and Dr. Kruskall, those claims
are fatally deficient for the same reason. Neither physician is a
state actor. The district court did not dismiss Hickey's complaint
against these defendants on this ground, however. Instead, the
district court concluded that any fair reading of Hickey's
complaint makes clear that she was challenging the medical
treatment she did or did not receive from Dr. Collins and Dr.
Kruskall. We agree with this assessment. Notwithstanding Hickey's
labeling of her claims, she was challenging medical judgments.
Thereafter, the district court referred the matter to the
state court for the convening of a medical malpractice tribunal.
This referral was in error. Once the district court concluded that
all that Hickey raised were essentially state law medical
malpractice claims against these defendants (and no other basis for
federal jurisdiction was apparent), it should have dismissed the
complaint against them for lack of jurisdiction. See Pallazola v.
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Rucker, 797 F.2d 1116, 1127-28 (1st Cir. 1986) (in the absence of
subject matter jurisdiction, the court was required to dismiss on
jurisdictional grounds); cf. Feinstein v. Massachusetts Gen. Hosp.,
643 F.2d 880 (1st Cir. 1981) (a Massachusetts diversity-based
medical malpractice action filed in federal court must follow the
state's statutory provision requiring a pre-screening by a medical
malpractice tribunal). We, therefore, do not reach Hickey's
argument that the district court erred in dismissing her claims for
failure to post the required bond after the tribunal found in the
defendants' favor. To the extent that Hickey's remaining arguments
of error by the district court -- the denial of appointed counsel,
leave to amend, and discovery -- are not mooted, they are rejected
as unpersuasive.
Accordingly, we affirm, in all respects, the district
court's dismissal of the claims against the Hospital. Although we
also affirm the dismissal of the claims against Dr. Collins and Dr.
Kruskall, we do so on the ground that no viable federal claim was
presented and, to the extent that state law based claims were
presented, those claims are properly dismissed for lack of
jurisdiction. As is the case with the Hospital, the dismissal of
the state law claims against the defendant physicians is without
prejudice. Whether that qualification makes an effective
distinction in these circumstances is unclear since the convening
of a medical malpractice tribunal would have resulted even if the
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state law claims against Dr. Collins and Dr. Kruskall had been
dismissed for lack of jurisdiction by the district court and then
reinstituted in the state court. We offer no speculation as to
whether a state court would now conclude that Hickey is precluded
from presenting her claims at a second tribunal.
The Order of Dismissal entered on September 21, 2004,
dismissing the complaint in its entirety, is affirmed. The
dismissal with respect to Dr. Collins and Dr. Kruskall shall
reflect that dismissal is grounded on lack of jurisdiction and, to
the extent that state law claims are presented, those claims are
dismissed without prejudice.
So Ordered.
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