Genthner v. Clovis Community Hospital et al

Filing 5

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Barbara A. McAuliffe on 6/21/2016. First Amended Complaint due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 DEBBY GENTHNER, 10 11 12 Plaintiff, v. 13 CLOVIS COMMUNITY HOSPITAL and DAVID STONE N. P., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:16-cv-00581-DAD-BAM ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND Doc. 4 THIRTY-DAY DEADLINE 16 17 Plaintiff Debby Genthner (“Plaintiff”), proceeding pro se and in forma pauperis, initiated 18 this civil action on April 25, 2016. On April 28, 2016, the Court dismissed Plaintiff’s complaint 19 based on the failure to adequately allege this Court’s subject matter jurisdiction. The Court 20 directed Plaintiff to file an amended complaint within thirty days. Doc. 3. Plaintiff’s first 21 amended complaint, filed on May 27, 2016, is currently before the Court for screening. Doc. 4. 22 Screening Requirement 23 The Court is required to screen complaints brought by persons proceeding in pro per. 28 24 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is 25 frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks 26 monetary relief from a defendant who is immune from such relief. 27 1915(e)(2)(B)(ii). 28 1 28 U.S.C. § 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 5 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 6 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 7 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 8 (internal quotation marks and citation omitted). 9 Pro se litigants are entitled to have their pleadings liberally construed and to have any 10 doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-1123 (9th Cir. 2012), 11 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive screening, Plaintiff’s claims 12 must be facially plausible, which requires sufficient factual detail to allow the Court to 13 reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. 14 at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 15 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 16 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 17 Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969. 18 Plaintiff’s Allegations 19 As with her original complaint, Plaintiff brings suit against Clovis Community Hospital 20 and Nurse Practitioner David Stone. Plaintiff alleges that she went to the Clovis Community 21 Hospital Emergency room for treatment of severe burn damages to her mouth and throat on April 22 21, 2014. Doc. 4 at 1. Plaintiff contends that Defendant Stone examined her mouth and throat 23 and offered her a prescription for the sores in her mouth. Plaintiff claims that Defendant Stone 24 should have seen the burn damage. Her throat was raw, she had sores all around her mouth, the 25 sides of her mouth had deep burn marks and she had a deep pit on one side and a cut mark on the 26 other. 27 Plaintiff further alleges that Defendant Stone made her sit in the waiting room for four 28 and a half hours and suffer with a burning mouth. She was not offered any pain medication. 2 1 Plaintiff alleges that Defendant Stone should have examined and treated her right away or called 2 in specialist to look at her injuries. Plaintiff contends that she tried to explain her injuries to 3 Defendant Stone, but all he could do was mentally abuse her and tell her that her sore throat 4 caused the sides of her mouth to swell up. Plaintiff also contends that Defendant Stone should 5 have reported the damages to the authorities. 6 7 Plaintiff asserts claims for violation of her civil rights, negligence, and failure to report her injuries. 8 Discussion 9 A. Fourteenth Amendment 10 In her First Amended Complaint, Plaintiff alleges that Defendant Stone violated her 11 rights under the Fourteenth Amendment to the United States Constitution by failing to properly 12 diagnose, treat and report the severe burn damages to her mouth and throat. 13 The Fourteenth Amendment provides that no State shall “make or enforce any law which 14 shall abridge the privileges or immunities of citizens of the United States; nor shall any State 15 deprive any person of life, liberty or property, without due process of law; nor deny to any 16 person within its jurisdiction the equal protection of the laws.” 17 Generally, only “state action [is] subject to Fourteenth Amendment scrutiny and private conduct 18 . . . is not.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001); 19 Jackson v. Metropolitan, 419 U.S. 345, 349 (1974) (“private action is immune from the 20 restrictions of the Fourteenth Amendment”). However, private action may be considered State 21 action if “there is such a ‘close nexus between the State and the challenged action’ that 22 seemingly private behavior ‘may be fairly treated as that of the State itself.’” Brentwood Acad., 23 531 U.S. at 295 (citation omitted); Jackson, 419 U.S. at 349 (private actor may only be held 24 liable for a constitutional violation if there is a “sufficiently close nexus between the State and 25 the challenged action of the [private actor] ....”). U.S. Const. amend. XIV, § 1. 26 Plaintiff has failed to state a Fourteenth Amendment claim. Defendant Stone is a private 27 actor working at Clovis Community Hospital. There are no allegations demonstrating a nexus 28 between Defendant Stone and the State, nor are there any allegations demonstrating a nexus 3 1 between Defendant Clovis Community Hospital and the State. Thus, the asserted actions of 2 Defendants may not be fairly treated as that of the state itself. 3 Even if Defendants were to be considered state actors, Plaintiff has not alleged sufficient 4 facts demonstrating that her constitutional rights were violated. Rather, Plaintiff’s claims are 5 based on negligence and medical negligence, which are not sufficient to state a claim under the 6 Fourteenth Amendment. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989) (“mere 7 negligence or lack of due care . . . does not trigger the protections of the fourteenth 8 amendment”). 9 B. State Law Claims 10 Plaintiff has asserted several state law claims, including negligence and medical 11 negligence.1 However, Plaintiff has not pled a cognizable federal claim. Pursuant to 28 U.S.C. § 12 1367(a), in any civil action in which the district court has original jurisdiction, the district court 13 “shall have supplemental jurisdiction over all other claims that are so related to claims in the 14 action within such original jurisdiction that they form part of the same case or controversy under 15 Article III of the United States Constitution,” except as provided in subsections (b) and (c). The 16 Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . the state 17 claims should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 18 726 (1966). 19 Here, Plaintiff fails to state a Fourteenth Amendment violation. Although the court may 20 exercise supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable 21 claim for relief under federal law. See 28 U.S.C. § 1367. The Court will not address Plaintiff's 22 state law claims unless and until she states a cognizable claim for relief under federal law. 23 CONCLUSION AND ORDER 24 Plaintiff fails to state a cognizable federal claim. However, as Plaintiff is proceeding pro 25 se, the Court will provide her with a final opportunity to amend her complaint to state a 26 cognizable federal claim. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not 27 1 28 Plaintiff also alleges that Defendants violated California Penal Code §§ 11160, 11161, and 11161.5. Plaintiff has not demonstrated that that these statutory provisions authorize a private cause of action. 4 1 change the nature of this suit by adding new, unrelated claims in her amended complaint. George 2 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 3 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 4 the named defendant did that led to the deprivation of Plaintiff’s rights, Iqbal, 556 U.S. at 678- 5 79, 129 S.Ct. at 1948-49. 6 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 7 (citations omitted). Although accepted as true, the “[f]actual allegations must be 8 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 9 Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s 10 amended complaint must be “complete in itself without reference to the prior or superseded 11 pleading.” Local Rule 220. 12 Based on the foregoing, it is HEREBY ORDERED that: 13 1. Plaintiff’s first amended complaint is dismissed for failure to state a cognizable 14 15 federal claim; 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 16 second amended complaint; and 17 3. If Plaintiff fails to file a second amended complaint in compliance with this 18 order, the Court will recommend that this action be dismissed with prejudice 19 for failure to state a claim and to obey a court order. 20 21 22 IT IS SO ORDERED. Dated: /s/ Barbara June 21, 2016 23 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 5

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