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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEBBY GENTHNER,

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Plaintiff,
v.

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CLOVIS COMMUNITY HOSPITAL and
DAVID STONE N. P.,

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Defendants.

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1:16-cv-00581-DAD-BAM
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND
Doc. 4
THIRTY-DAY DEADLINE

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Plaintiff Debby Genthner (“Plaintiff”), proceeding pro se and in forma pauperis, initiated

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this civil action on April 25, 2016. On April 28, 2016, the Court dismissed Plaintiff’s complaint

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based on the failure to adequately allege this Court’s subject matter jurisdiction. The Court

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directed Plaintiff to file an amended complaint within thirty days. Doc. 3. Plaintiff’s first

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amended complaint, filed on May 27, 2016, is currently before the Court for screening. Doc. 4.

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Screening Requirement

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The Court is required to screen complaints brought by persons proceeding in pro per. 28

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U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is

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frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks

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monetary relief from a defendant who is immune from such relief.

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1915(e)(2)(B)(ii).

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28 U.S.C. §

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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Pro se litigants are entitled to have their pleadings liberally construed and to have any

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doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-1123 (9th Cir. 2012),

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive screening, Plaintiff’s claims

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must be facially plausible, which requires sufficient factual detail to allow the Court to

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reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S.

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at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not

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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.

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Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.

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Plaintiff’s Allegations

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As with her original complaint, Plaintiff brings suit against Clovis Community Hospital

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and Nurse Practitioner David Stone. Plaintiff alleges that she went to the Clovis Community

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Hospital Emergency room for treatment of severe burn damages to her mouth and throat on April

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21, 2014. Doc. 4 at 1. Plaintiff contends that Defendant Stone examined her mouth and throat

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and offered her a prescription for the sores in her mouth. Plaintiff claims that Defendant Stone

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should have seen the burn damage. Her throat was raw, she had sores all around her mouth, the

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sides of her mouth had deep burn marks and she had a deep pit on one side and a cut mark on the

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other.

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Plaintiff further alleges that Defendant Stone made her sit in the waiting room for four

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and a half hours and suffer with a burning mouth. She was not offered any pain medication.
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Plaintiff alleges that Defendant Stone should have examined and treated her right away or called

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in specialist to look at her injuries. Plaintiff contends that she tried to explain her injuries to

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Defendant Stone, but all he could do was mentally abuse her and tell her that her sore throat

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caused the sides of her mouth to swell up. Plaintiff also contends that Defendant Stone should

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have reported the damages to the authorities.

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Plaintiff asserts claims for violation of her civil rights, negligence, and failure to report
her injuries.

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Discussion

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A. Fourteenth Amendment

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In her First Amended Complaint, Plaintiff alleges that Defendant Stone violated her

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rights under the Fourteenth Amendment to the United States Constitution by failing to properly

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diagnose, treat and report the severe burn damages to her mouth and throat.

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The Fourteenth Amendment provides that no State shall “make or enforce any law which

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shall abridge the privileges or immunities of citizens of the United States; nor shall any State

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deprive any person of life, liberty or property, without due process of law; nor deny to any

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person within its jurisdiction the equal protection of the laws.”

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Generally, only “state action [is] subject to Fourteenth Amendment scrutiny and private conduct

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. . . is not.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001);

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Jackson v. Metropolitan, 419 U.S. 345, 349 (1974) (“private action is immune from the

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restrictions of the Fourteenth Amendment”). However, private action may be considered State

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action if “there is such a ‘close nexus between the State and the challenged action’ that

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seemingly private behavior ‘may be fairly treated as that of the State itself.’” Brentwood Acad.,

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531 U.S. at 295 (citation omitted); Jackson, 419 U.S. at 349 (private actor may only be held

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liable for a constitutional violation if there is a “sufficiently close nexus between the State and

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the challenged action of the [private actor] ....”).

U.S. Const. amend. XIV, § 1.

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Plaintiff has failed to state a Fourteenth Amendment claim. Defendant Stone is a private

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actor working at Clovis Community Hospital. There are no allegations demonstrating a nexus

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between Defendant Stone and the State, nor are there any allegations demonstrating a nexus
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between Defendant Clovis Community Hospital and the State. Thus, the asserted actions of

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Defendants may not be fairly treated as that of the state itself.

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Even if Defendants were to be considered state actors, Plaintiff has not alleged sufficient

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facts demonstrating that her constitutional rights were violated. Rather, Plaintiff’s claims are

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based on negligence and medical negligence, which are not sufficient to state a claim under the

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Fourteenth Amendment. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989) (“mere

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negligence or lack of due care . . . does not trigger the protections of the fourteenth

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amendment”).

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B. State Law Claims

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Plaintiff has asserted several state law claims, including negligence and medical

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negligence.1 However, Plaintiff has not pled a cognizable federal claim. Pursuant to 28 U.S.C. §

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1367(a), in any civil action in which the district court has original jurisdiction, the district court

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“shall have supplemental jurisdiction over all other claims that are so related to claims in the

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action within such original jurisdiction that they form part of the same case or controversy under

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Article III of the United States Constitution,” except as provided in subsections (b) and (c). The

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Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . the state

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claims should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715,

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726 (1966).

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Here, Plaintiff fails to state a Fourteenth Amendment violation. Although the court may

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exercise supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable

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claim for relief under federal law. See 28 U.S.C. § 1367. The Court will not address Plaintiff's

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state law claims unless and until she states a cognizable claim for relief under federal law.

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CONCLUSION AND ORDER

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Plaintiff fails to state a cognizable federal claim. However, as Plaintiff is proceeding pro

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se, the Court will provide her with a final opportunity to amend her complaint to state a

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cognizable federal claim. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not

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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.
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change the nature of this suit by adding new, unrelated claims in her amended complaint. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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the named defendant did that led to the deprivation of Plaintiff’s rights, Iqbal, 556 U.S. at 678-

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79, 129 S.Ct. at 1948-49.

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[sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555

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(citations omitted).

Although accepted as true, the “[f]actual allegations must be

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s

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amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint is dismissed for failure to state a cognizable

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federal claim;
2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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second amended complaint; and

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3. If Plaintiff fails to file a second amended complaint in compliance with this

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order, the Court will recommend that this action be dismissed with prejudice

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for failure to state a claim and to obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 21, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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