Amir Hakim McCain, Administrator of the Estate of Deceased Juanita Felder v. Episcopal Hospital

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CLD-020 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3092
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AMIR HAKIM MCCAIN,
ADMINISTRATOR OF THE ESTATE
OF DECEASED JUANITA FELDER
AND A/K/A JOHN MCCAIN, AN-NISA,
INDIVIDUALLY IN HIS OWN RIGHT,
Amir Hakim McCain,
Appellant
v.
EPISCOPAL HOSPITAL;
HOSPITAL OF THE UNIVERSITY OF
PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 09-cv-02385)
District Judge: Honorable Eduardo Robreno
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 22, 2009
Before: BARRY, FISHER and COWEN, Circuit Judges
(Opinion filed: October 29, 2009)
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OPINION
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PER CURIAM
Amir Hakim McCain appeals from the District Court’s order dismissing his
complaint. For the following reasons, we will dismiss McCain’s appeal pursuant to 28
U.S.C. § 1915(e)(2)(B)(i).
I.
On May 26, 2009, McCain, acting as “Administrator of the Estate of Deceased
Juanita Felder and a/k/a John McCain, An-Nisa McCain, Individually in his own Right,”
filed a complaint in the United States District Court for the Eastern District of
Pennsylvania against Episcopal Hospital and the Hospital of the University of
Pennsylvania. McCain’s complaint alleged that the hospitals, acting under color of state
law, violated his constitutional rights by refusing to turn over biological, toxicological,
and DNA tests that McCain believes would justify further criminal or civil actions against
the hospitals in connection with the deaths of Juanita Felder and McCain’s unborn son.
On June 5, 2009, McCain moved to proceed with his claims in forma pauperis. On
July 1, 2009, the District Court granted in forma pauperis status to appellant, and
dismissed his complaint under 28 U.S.C. § 1915(e)(2).
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. Because McCain is
proceeding in forma pauperis, we must dismiss the appeal under 28 U.S.C. §
1915(e)(2)(B) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S.

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319, 325 (1989).
This is McCain’s second attempt, as a pro se litigant, to bring a § 1983 action on
behalf on Juanita Felder. See McCain v. Abraham, C.A. No. 08-3375, 2009 WL 1608511
(3d. Cir. June 10, 2009). We reiterate that “a pro se litigant who is not an attorney may
not represent someone else in federal court.” Id. at *1; see also Osei-Afriyie v. Med.
Coll. of Penn., 937 F.2d 876, 882 (3d Cir. 1991) (holding that a non-attorney parent could
not proceed pro se on behalf of his or her children in federal court). Furthermore, as we
explained to McCain in dismissing his previous appeal, § 1983 “does not provide a cause
of action on behalf of a deceased based upon alleged violation of the deceased’s civil
rights which occurred after his death.” McCain, 2009 WL 1608511, at *1 (quoting
Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir. 1979)). For these reasons, McCain lacks
standing to litigate claims on behalf of Felder or her estate.
To the extent that McCain also seeks redress for alleged violations of his own civil
rights, McCain’s claims are without merit. To state a claim under 42 U.S.C. § 1983,
McCain must show that the Episcopal Hospital and the Hospital of the University of
Pennsylvania (1) violated his federal or Constitutional rights, and (2) that they did so
while acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56
(1978); Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). McCain has
failed to articulate how the hospitals’ alleged actions - in essence, withholding
information that could potentially form the basis of a hypothetical future criminal or civil

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action - violated a right that either the Constitution or federal law protects.
Furthermore, even assuming that withholding information under these
circumstances somehow violated a cognizable federal right, McCain make no allegations
to support his claim that the hospitals were acting under color of state law. “[T]here is no
liability under § 1983 for those not acting under color of law.” Groman, 47 F.3d at 638.
Although McCain asserts that the hospitals were acting under color of state law, there is
no allegation that the Episcopal Hospital or the Hospital of the University of Pennsylvania
are state actors, that they have “acted together with” or have “obtained significant aid
from state officials,” or that their conduct is “otherwise chargeable to the State.” Lugar v
Edmondson Oil Co., Inc., 457 U.S. 922, 923 (1982); Jordan v. Fox, Rothschild, O’Brien
& Frankel, 20 F.3d 1250, 1264-65 (3d Cir. 1994). Other than McCain’s bare assertion,
there is nothing in the complaint to suggest that either defendant was acting under color
of state law. Ashcroft v. Iqbal, U.S. , 129 S. Ct. 1937, 1951 (2009) (holding
that conclusory allegations are not entitled to the assumption of truth).
III.
After conducting an independent review, we conclude that McCain’s appeal is
without arguable merit. We will dismiss the appeal pursuant to 28 U.S.C. §
1915(e)(2)(B)(i).
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