Staley, Freedman and Aldisert, Circuit Judges.
This is an appeal from an order of the district court which dismissed appellants' complaint on the basis that it failed to state a claim upon which relief can be granted. It was a pro se complaint requesting damages for personal injuries sustained by the wife plaintiff, allegedly caused by the failure of the various named defendants to provide essential and required medical care to her while she was a state prisoner. The district court treated the action as one brought under the Civil Rights Act of 1871, 42 U.S.C.A. § 1983 and, upon consideration of motions made by certain of the defendants, entered an order of dismissal.
It becomes necessary, therefore, to examine the pleadings to determine whether, in the context of the Civil Rights Act, it was appropriate to dismiss the complaint in favor of all the named defendants.
Because the County of Philadelphia, by virtue of the City-County Consolidation Amendment to the Pennsylvania Constitution, is merged into the city, we have the threshold question to meet: is the city a "person" under the Civil Rights Act's provisions that "Every person who * * * subjects * * * any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable * *." This issue was directly answered by the Supreme Court in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), which held that a municipality was not such a "person" contemplated by the Civil Rights Act of 1871.*fn1 Accordingly, there can be no claim upon which relief can be granted under the Civil Rights Act of 1871 against a municipality. Similarly, because Philadelphia General Hospital is a city-owned institution which operates as part of city government (Philadelphia Home Rule Charter, § 3-100(f), § 3-903) it stands on the same footing as the municipal defendant. We conclude it was appropriate to dismiss the action against these two defendants.
The same may also be said of the commonwealth of Pennsylvania. The doctrine of Monroe has been extended to the states in their capacities as parties defendant in such cases.*fn2 On this basis, the action was properly dismissed against the defendant Commonwealth of Pennsylvania. We hasten to add, however, that although we concur in the action of the court below in dismissing the complaint against this defendant, we do not condone the failure of this defendant to file appropriate pleadings. The trial court was careful to extend a broad overview to the subject matter of the plaintiffs' complaint because of its pro se format;*fn3 it was equally generous to treat the Commonwealth of Pennsylvania as if it had filed a motion to dismiss as had the other defendants. That this failure to comply with basic and fundamental rules of procedure has not operated adversely to this defendant is no indication that such inexcusable dereliction will find acceptance in the future.*fn4
Regarding the claim against the Williamsport Hospital, an examination of the specific averment against the hospital indicates that it sounds in negligence only;*fn5 it rises no higher than an averment of a tort alleging medical malpractice. In Kent v. Prasse, 385 F.2d 406 (3 Cir. 1967) we held that a tort committed by a state official acting under color of law is not, in and of itself, sufficient to show an invasion of a person's rights under the Act. In Com. of Pa. ex rel. Gatewood v. Hendrick, 368 F.2d 179 (3 Cir. 1966), cert. den. Gatewood v. Hendrick, 386 U.S. 925, 87 S. Ct. 899, 17 L. Ed. 2d 797 (1967), we ruled that alleged improper medical treatment by prison authorities is not a denial of rights secured by the federal Constitution Consequently, we conclude that Williamsport Hospital's motion to dismiss was properly granted.
The two remaining parties named as defendants in the proceeding below are individuals. At oral argument, however, we granted appellants' motion that they be removed as parties, and accordingly we have dismissed the appeal as to J. McAllister and Joseph R. Brierley, Superintendent State Correctional Institution, Philadelphia.
One last point remains. Assuming a new posture, the appellants urge that it was error for the lower court to view the action solely as a proceeding under the Civil Rights Act even though their complaint specifically and exclusively invoked federal jurisdiction on the basis of federal civil rights legislation.*fn6 Rather, the appellants suggest that it is reasonable to construe the complaint as a tort action sounding in negligence, qualified for our consideration under a theory of diversity of citizenship of the parties. Although this argument is now being advanced it appears that in both the original and supplemental complaints filed below, plaintiffs averred in three separate instances that they were citizens of the Commonwealth of Pennsylvania, as are the defendants.*fn7 We have concluded that the suit cannot be viewed as a diversity action.
There is no presumption in favor of federal jurisdiction and the basis for such jurisdiction must be affirmatively demonstrated by the party invoking it. Resnik v. La Paz Guest Ranch, 289 F.2d 814 (9 Cir. 1961); Patton v. Baltimore & Ohio R. Co., 197 F.2d 732, 743 (3 Cir. 1952). The obvious reason for such a rule is that the United States District Courts are courts of limited jurisdiction, "creatures of statute," possessing "only such jurisdiction as the statutes expressly confer, and this jurisdiction must always affirmatively appear." Le Mieux Bros. v. Tremont Lumber Co., 140 F.2d 387, 389 (5 Cir. 1944).
In Henig v. Odorioso, 385 F.2d 491, 494 (3 Cir. 1967), an action also brought under the Civil Rights Statutes, this Court specifically rejected the concept of assuming diversity as a means of salvaging an otherwise fatally-defective action. We reiterate what we said there: "if jurisdiction does not attach under the Civil Rights Statutes referred to, then it cannot be assumed under 28 U.S.C. § 1332 as the complaint does not allege diversity of citizenship between plaintiffs and any of the named defendants."
Not only was there no allegation of diversity in the complaints filed below, there was a specific affirmative averment that the plaintiff-appellants were citizens of the same state as the defendants.*fn8 Confronted with such a record, we reject the argument that the case should be remanded to the district court for further exploration into the possibility of entertaining this suit as a diversity action.
All other matters urged as the basis for this appeal have been given careful consideration and have been found to be without merit. We express our appreciation for the excellent advocacy performed by Thomas J. Tumola, Esq., ...