Brown et al v. Mt. Grant General Hospital et al

Filing 38

ORDERED that Defendants' # 25 Motion to Dismiss is GRANTED. The First Amended Complaint (# 1 -2) is DISMISSED without prejudice. FURTHER ORDERED that the Browns shall file their amended complaint within 15 days from the issuance of this order. Signed by Judge Larry R. Hicks on 1/7/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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HATTIE BROWN, individually and as the coguardian of Plaintiff EUGENE BROWN, an
incapacitated adult; TROY BROWN, as coguardian,

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Plaintiffs,
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v.
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MT. GRANT GENERAL HOSPITAL;
JUANCHICHOS T. VENTURA, M.D.;
DANIEL A. WILLIAMS, JR., M.D.,

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Defendants.
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3:12-CV-00461-LRH-WGC
ORDER

This is a 42 U.S.C. § 1983 dispute. Before the court is defendants’ Mineral County Hospital

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District (d.b.a. Mt. Grant General Hospital), Juanchichos T. Ventura, M.D., and Daniel A.

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Williams, Jr., M.D.’s (“Defendants’”) Motion to Dismiss (#251 ). Plaintiffs Hattie Brown, Eugene

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Brown, and Troy Brown (“the Browns”) have responded (#30), and Defendants have replied (#37).

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I.

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Factual and Procedural Background
This action stems from the alleged mistreatment of Eugene Brown while he was in the care

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of Mt. Grant General Hospital (“Mt. Grant”) and physicians Ventura and Williams. Eugene is an

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incapacitated adult under the guardianship of his wife Hattie and his son Troy. (First Amended

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Complaint (“FAC”) #1-2, ¶¶ 1-3.) On March 8, 2011, Eugene was admitted to Mt. Grant for

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Refers to the court’s docket number.

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treatment of various medical problems, including pneumonia. (Id. at ¶ 14.) Eugene was

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hospitalized for this treatment until May 19. (Id. at ¶ 16.)
During this period, and while under the care of Drs. Ventura and Williams, Eugene

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developed decubitus ulcers–also known as bedsores. (Id. at ¶ 17.) Sometime around April 9,

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Ventura or Williams contacted another facility for a “wound care consultation,”2 and this facility

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recommended that Eugene be transferred for surgical attention. (Id. at ¶ 19.) However, Defendants

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continued to treat the bedsores themselves, and the transfer did not occur until May 20, resulting in

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more severe bedsores and subsequent infection. (Id. at ¶ 22.)
The Browns have lodged section 1983 claims against Defendants for violations of Eugene’s

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substantive due process rights under the Fourteenth Amendment.3 These claims allege that

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Defendants had a special relationship with Eugene and that Defendants had a duty to protect

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Eugene from a danger they created. The Browns also allege a state law claim for negligence.

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Defendants removed this action from Nevada state court on August 28, 2012 (#1). They filed their

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Answer on September 26, 2012 (#22), and they filed the instant Motion to Dismiss on October 2.

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II.

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Legal Standard
The court must first determine the proper treatment of Defendants’ motion to dismiss.

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Under Federal Rule of Civil Procedure 12(b), a motion to dismiss for failure to state a claim (the

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grounds of Defendants’ motion) “must be made before pleading if a responsive pleading is

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allowed.” Since Defendants filed their motion to dismiss following their answer–a responsive

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pleading, Fed. R. Civ. P. 7–the Motion to Dismiss is untimely.

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This facility was not Renown Regional Medical Center, as alleged in the FAC. (Browns’
Response #30, p. 3, ¶ 3.)

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In their response, the Browns suggest that “newly discovered, additional facts” prove that
Defendants discriminated against Eugene on the basis of age and race. (Browns’ Response #30 at p.
5.) The opposition to a motion to dismiss is not the proper place to assert an additional claim.
Therefore, the court ignores this claim.
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However, the court may treat Defendants’ motion as a motion for judgment on the

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pleadings or as a motion for summary judgment. First, courts may treat a post-answer Rule 12(b)(6)

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motion as a motion for judgment on the pleadings. Elvig v. Calvin Presbyterian Church, 375 F.3d

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951, 954-55 (9th Cir. 2004) (citing Rules 12(h) and 12(c)). Second, the Browns have included new

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evidence in their opposition to the motion to dismiss. (Browns’ Response #30 at Ex. 1.) Under Rule

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12(d), the court may consider this extrinsic evidence if it treats the motion to dismiss as one for

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summary judgment under Rule 56. Here, the court treats Defendants’ motion to dismiss as a motion

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for judgment on the pleadings under Rule 12(c). As discussed below, the main issues governing the

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motion to dismiss are legal (not factual), and therefore a Rule 12(c) judgment is appropriate.
The standard for a motion for judgment on the pleadings under Rule 12(c) is nearly

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identical to the standard under Rule 12(b)(6). See Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.

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2009). In particular, assuming all factual allegations in the complaint are true and construing them

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in the light most favorable to the non-moving party, the court must determine if the movant is

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entitled to judgement as a matter of law. Id. Judgment on the pleadings is inappropriate if the

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complaint raises “issues of fact, which, if proved, would [support] recovery.” General Conference

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Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228,

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230 (9th Cir. 1989).

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III.

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Discussion
At its heart, a section 1983 claim is composed of two pieces: that a right secured by the

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Constitution or federal law is violated and that it is violated by a person acting under color of state

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law. See Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987). Here, it is undisputed

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that Defendants were acting under color of state law. Therefore, the question is whether Defendants

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deprived Eugene of a constitutional or federal right. The court finds they did not.

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The Browns allege a failure to protect Eugene’s substantive due process rights under the

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Fourteenth Amendment. Such rights include “the right to bodily integrity.” Albright v. Oliver, 510

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U.S. 266, 372 (1994). However, “the state's failure to protect that [right] does not violate the
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Fourteenth Amendment, unless one of two exceptions applies: (1) the special relationship

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exception, or (2) the state-created danger exception.” Campbell v. State of Washington Department

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of Social & Health Services, 671 F.3d 837, 842 (9th Cir. 2011) (citing DeShaney v. Winnebago

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County Department of Social Services, 489 U.S. 189 (1989)).

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In order for the “special relationship exception” to apply, the state must “take[] a person

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into its custody and hold[] him there against his will.” DeShaney, 489 U.S. at 199-200. The

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rationale behind this exception is that the state has rendered the individual unable to care for

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himself, and therefore the state bears responsibility for the individual’s “safety and well-being.” Id.

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at 200. “In the special relationship situation, the state’s affirmative duty to protect arises from the

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limitation the state has imposed on the person’s freedom to act for himself; the duty does not arise

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from the State’s knowledge of the individual’s predicament.” Campbell, 671 F.3d at 843 (quotation

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marks and citation omitted). “Mere custody” will not support a special relationship claim. Id.

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Here, the Browns have not alleged a relationship with the state beyond “mere custody.” For

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instance, the Browns have not alleged a custodial relationship amounting to incarceration or

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involuntary commitment in a psychiatric facility, situations that have given rise to section 1983

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liability. Id. The restraints on Eugene’s liberty–his illness and his incapacity–were not created by

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the “State’s affirmative act[s].” DeShaney, 489 U.S. at 199. See also Campbell, 671 F.3d at 844

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(holding that the plaintiff’s “cognitive impairments” did not transform a voluntary custodial

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relationship into an involuntary one). Thus, the Browns have not alleged any “duty-triggering

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affirmative acts” taken by the state against Eugene’s will. Campbell, 671 F.3d at 844-45. There is

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accordingly no special relationship giving rise to section 1983 liability.

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Under the “state-created danger” exception, a state actor may be liable where it “creates or

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exposes an individual to a danger which he or she would not have otherwise faced.” Id. at 945

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(quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006)). The awareness of a

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risk of harm is insufficient to trigger the state’s duty to protect. DeShaney, 489 U.S. at 200 (“The

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affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or
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from its expressions of intent to help him.”) In many cases, courts determine if the state created a

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duty-triggering danger by measuring the situation against one in which the state did not act at all.

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See, e.g., id. at 201 (“[The state] placed [the plaintiff] in no worse position than that in which he

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would have been had it not acted at all.”); see also Johnson v. City of Seattle, 474 F.3d 634, 639

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(9th Cir. 2007) (holding that the defendant “did not place [the plaintiffs] in any worse position than

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they would have been in” had the defendant not acted “whatsoever”).
Here, the Browns have not sufficiently alleged a state-created danger. Instead, they claim

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that Defendants did not act fast enough, or with enough professional ability. But, as measured

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against a world in which the Defendants did not act at all, Eugene is not in a worse position.

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Compare Campbell, 671 F.3d at 847 (collecting cases in which the Ninth Circuit recognized a

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state-created danger). Eugene’s injuries were “caused by the dangers inherent in [his] own physical

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and mental limitations.” Id. Defendants’ efforts to remedy Eugene’s injuries, even if insufficient,

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“do not render them responsible for creating the danger to which [he unfortunately succumbed].”

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Id.

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IV.

Conclusion

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What befell Eugene may have been avoidable, perhaps even wrong. But it was not a

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violation of his constitutional rights. See DeShaney, 489 U.S. at 202 (“[T]he Due Process Clause...

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does not transform every tort committed by a state actor into a constitutional violation.”) Since the

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Browns cannot maintain a section 1983 claim against Defendants, there are no claims lodged in the

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complaint over which this court has original jurisdiction. The court therefore declines to exercise

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supplemental jurisdiction over the Browns’ state law claim. 28 U.S.C. § 1367(c).

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Finally, the Browns ask for an opportunity to amend their complaint. Because the court

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treats the instant motion as a motion for judgment on the pleadings under Rule 12(c), the right to

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amend as a matter of course under Rule 15(a) is inapplicable. And there is no “circuit-level

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authority regarding the standard for reviewing a Fed. R. Civ. P. 12(c) motion when the non-moving

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party requests leave to amend in response.” Ring v. Reichert, 2007 WL 4358301 (W.D. Wash. Dec.
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10, 2007). Despite this lacuna, courts have generally allowed amendment under the liberal

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standards of the Federal Rules. See id.; see also Carmen v. San Francisco Unified School District,

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982 F. Supp. 1396, 1401 (N.D. Cal. 1997) (“Courts have discretion to grant leave to amend in

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conjunction with 12(c) motions, and may dismiss causes of action rather than grant judgment.”).

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Therefore, the Browns will be granted leave to amend.4

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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (#25) is GRANTED.
The First Amended Complaint (#1-2) is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Browns shall file their amended complaint within
fifteen (15) days from the issuance of this order.

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IT IS SO ORDERED.

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DATED this 7th day of January, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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Defendants insist amendment is futile, and therefore leave to amend should be denied. Futility
is a high bar, and it is not met here. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)
(“[A] proposed amendment is futile only if no set of facts can be proved under the amendment to the
pleadings that would constitute a valid and sufficient claim or defense.”).
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