United States District Court, N.D. California
January 21, 2004.
DAVID BURROWS, et al., Plaintiffs
ADVENTIST HEALTH INC., et al., Defendants
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
Now before the Court are several motions: (i) plaintiffs' motion to
dismiss the lawyer-defendants (LynchGilardi & Grummer, Robert Lynch
and Matthew Miller) from the complaint; and (ii) various defendants'
motions to dismiss plaintiffs' current action. On September 26, 2003,
this Court heard argument on defendants' 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted. At that time,
the Court gave both parties an opportunity to resolve the procedural
conflict posed in the current action for an ongoing case involving
plaintiffs, defendant Schug and his counsel, Robert Lynch and Matthew
Miller of Lynch Gilardi & Grummer. See Burrows v. Redbud Cmty,
Hosp., C-96-4345 SI, (N.D. Cal. filed Dec. 3, 1996) ("Burrows
I"). In order to remedy this procedural conflict, plaintiffs filed
their motion to dismiss the lawyer-defendants. Finding that the
resolution of this motion will not adequately remedy the procedural
conflicts between this case and the earlier filed case, the Court finds
it necessary to address and resolve defendants' earlier motion regarding
the merits of plaintiffs' claims at this time.
Having carefully considered the papers submitted and the arguments of
counsel, the Court GRANTS defendants' motions to dismiss plaintiffs'
actions for failure to state a claim upon which relief can be granted.
Plaintiffs filed this action on May 13, 2003, seeking monetary damages
and injunctive relief against
defendants for their alleged illegal conduct in conspiring to deny
plaintiffs their civil rights by, inter alia, fraudulently
altering medical records and obstructing justice in plaintiffs' attempts
to seek redress for the wrongful death of their infant son, Cody Burrows.
Below is a detailed discussion of the factual and procedural background
of both the present case and Burrows I, on which the current
action is based.
I. Burrows I
A. Factual background
This actionarose out of the death of Cody Burrows, an eleven-month old
infant, on February 26, 1996. Order, C-96-4345 SI, at 1-2 (filed Oct. 22,
1997). Plaintiffs David Burrows and Rhoda Thomas, the parents of Cody
Burrows, alleged the following facts and incidents in their complaint: On
February 23, 1996, plaintiffs took Cody to the emergency department of
Redbud Community Hospital in Clearlake, California, for care and
treatment of their son. Id. Cody was examined at the hospital
and subsequently released. Id. On February 25, 1996, in the
early morning hours, plaintiffs brought Cody back to Redbud Community
Hospital because he was still ill. Id. Plaintiffs alleged that
doctors failed to perform an appropriate or competent screening exam,
failed to render competent medical care, and discharged Cody
notwithstanding his unstable condition. Id.
On February 25, 1996, at about 11 a.m., plaintiffs returned with Cody
to Redbud Community Hospital for further care and treatment.
Id. Medical records showed that Cody was dehydrated and his
fever ranged from 101 to 105 degrees. Order, C-96-4345, at 2 (filed Nov.
10, 1999). Attempts to administer fluids intravenously, through both his
femoral and jugular veins, were unsuccessful Id. Throughout his
stay in the emergency room, Cody continued to vomit, and ingested only
three ounces of Pedialyte fluid. At 7:00 p.m., Cody's chart indicated
that he "remain[ed] very lethargic." Id. After nearly eight and
a half hours in the emergency room and no apparent improvement, Cody was
discharged by the hospital. Plaintiffs were given a map and told to take
Cody to Santa Rosa Community Hospital, a drive of over two hours.
Id. When plaintiffs arrived at Santa Rosa, Cody was no longer
breathing. Id. A few hours later, after being transferred
to the University of California Medical Center in San Francisco, Cody
died of a cardiac arrest. Id.
The following day, February 27, 1996, Nurse DeLashmutt, an employee of
Redbud Hospital, recorded additional notations on Cody's chart, one
stating that he was "active in the sink . . . drinking [water] from the
faucet . . ." Id. Also that day, Dr. Schug composed an
addendum to Cody's medical records, describing the child's treatment.
Id. To prepare this addendum, Dr. Schug copied notes in pencil
from Cody's chart to yellow post-it slips, which he took home with him.
Id. He drafted in his own handwriting and also dictated the
addendum, added it to Cody's medical records, and destroyed the yellow
notes and draft addendum by burning them. Id. Dr. Schug's
addendum described Cody as active, "playful," and "splashing" in a bath.
These descriptions appeared to contradict most contemporaneous
descriptions of the child as listless and tired. Id.
B. Procedural history
On December 2, 1996, plaintiffs filed a complaint in federal court
against: Dr. Wolfgang Schug, a doctor on call with the emergency room at
Redbud Community Hospital who examined Cody; Dr. M. Fred Brewer, a
pediatrician on call and available for consultation with the emergency
room at Santa Rosa who examined Cody; Redbud Community Hospital District
("Redbud"/"District"), the owner and operator of Redbud Community
Hospital; Emergency Medical Management Services, Inc.; and unnamed
physicians, nurses, and health care professionals who, plaintiffs allege,
negligently treated Cody prior to his death. The original complaint
alleged negligence, spoliation of evidence, and violations of the
Emergency Medical Treatment and Active Labor Act ("EMTALA"),
42 U.S.C. § 1395dd, and Cal. Health & Safety Code § 1317. Order,
C-96-4345 SI, Oct. 22, 1997 at 2.
On January 24, 1997, plaintiffs filed an amended complaint, naming as
an additional defendant Adventist Health, Inc. ("Adventist Health") and
substituting J. J. & R. Emergency Management Group, Inc. ("J. J.
& R.") in lieu of Emergency Medical Management Services, Inc. The
first amended complaint alleged the following causes of action: Count One
(EMTALA), Count Two (EMTALA emotional distress), Count Three
(wrongful death), Count Four (wrongful death emotional distress),
Count Five (personal injuries claim brought on behalf of Cody
Burrows), Count Six (spoliation of evidence), Count Seven (Cal. Health
& Safety Code § 1317), Count Eight (Cal. Health & Safety Code
§ 1317 emotional distress), and Count Nine (injunctive
relief). Defendants filed separate answers to the first amended complaint
in March 1997.
Plaintiffs amended the initial complaint twice more during the pleading
stage. The third amended
complaint, most relevant to the case at hand, was filed by
plaintiffs on June 23, 1998.*fn1 By order dated March 24, 1999, this
Court dismissed Count Six of plaintiffs' third amended complaint, which
was captioned "violation of Cal. Penal Code § 471.5, obstruction of
justice and conspiracy." Order Re: Mots. Concerning Third Am. Compl. at
2:2-4, C-96-4345 SI (March 24, 1999). This count substituted for what had
previously been charged as "spoliation of evidence, obstruction of
justice and conspiracy" in the Second Amended Complaint. Id. at
2:3-5. The Court found that under the circumstances of the case,
plaintiffs did not and could not state a private cause of action premised
on Penal Code § 471.5, because no private right was included by the
Legislature when it enacted the statute. 14 at 2:13-14, The Court
dismissed Count Six of the Third Amended Complaint and struck the
accompanying allegations as unnecessary to the remaining causes of
action. Id. at 2:19-21.
Plaintiffs filed a Fourth Amended Complaint on July 6, 1999, in which
they set forth Count Six for the sole purpose of preserving the cause of
action and the allegations for possible appeal. Plaintiffs did appeal
this case to the Ninth Circuit in David Burrows v. Redbud Community
Hospital, 34 Fed. Appx. 363, 2002 WL 857873 (9th Cir. 2002). The
status of the case at the time of appeal was as follows:
On June 17, 1998, Dr. Brewer was dismissed from this case. Order,
C-96-4345 SI, at 1-2 (filed July 23, 2003). On March 17, 1999, this Court
granted summary judgment in favor of defendant J.J. & R. on the
grounds that it was not liable vicariously, directly under statute, or
under theories of general negligence. 14. This Court also granted summary
judgment in favor of defendant Adventist Health, Inc. on the grounds that
it was not liable directly or vicariously. Id. On March 21,
2000, this Court granted summary judgment in favor of defendant Adventist
Health, Inc. on the grounds that it did not have successor liability to
Redbud Community Hospital. On March 22, 2000, this Court granted
plaintiffs' motion for voluntary dismissal of their claims against the
Redbud Community Hospital District with prejudice. 14 Plaintiffs no
longer had pending EMTALA claims because the remaining defendant, Dr.
Schug, is not a "hospital" as defined under EMTALA.
42 U.S.C. § 1395dd. Id. Likewise, plaintiffs no longer had pending §
1317 claims because Dr. Schug is not a "healthcare facility" under
thatstatute. However, this Court retained jurisdiction of the remaining
state law claims. Id. citing
Order Den. Defs.' Mot. to Dismiss State Claims, May 8, 2000. The
Redbud District settled with plaintiffs for $750,000. Burrows,
34 Fed. Appx. 363, 364, 2002 WL 857873 at * 1. Plaintiffs' settlement
with the District also dismissed David Burrows' claim of emotional
distress against all defendants with prejudice. Order, C-96-4345 SI, at
2 (filed July 23, 2003). Thereafter, Thomas emotional distress claim and
the two plaintiffs' shared wrongful death claim against Dr. Schug were
tried to a jury, which returned a defense verdict on July 12, 2000.
Plaintiffs appealed a number of this Court's rulings in Burrows
I. See Burrows. 34 Fed. Appx. 363, 2002 WL 857873. With
respect to defendant Schug, plaintiffs argued that the expert testimony
and evidence presented "required the jury to conclude that Schug was
negligent on ten different violations of the standard of care. They also
argued that the district court was wrong to grant summary judgment
motions finding that: (1) JJ & R was not liable vicariously, directly
under statute, or under theories of general negligence; (2) Adventist was
liable neither directly nor vicariously; and (3) Adventist did not incur
successor liability when it purchased Redbud Hospital. Finally, they
argue[d] that an obstruction of justice claim, which they
recharacterize[d] as §§ 1983 and 1985 claims, should not have been
dismissed; and they argue[d] that the district court abused its
discretion in denying a new trial." Id. 34 Fed. Appx. at 364-5,
2002 WL 857873 at * 1. The Ninth Circuit Court of Appeals affirmed this
Court on all but one claim. It found that Dr. Schug had been negligent as
a matter of law, and reversed the jury's verdict and remanded for a new
trial as to Dr. Schug; its mandate issued July 1, 2002. Id.
The matter is now pending for retrial on the questions of causation
2. Burrows II: Defendants' motion to dismiss
for failure to state a claim
On May 13, 2003, while awaiting retrial against defendant Schug,
plaintiffs brought the current action, Burrows v. Adventist Health,
et al, No. C-03-2228 ("Burrows II"), claiming that
defendants conspired to deny plaintiffs their civil rights in violation
of 42 U.S.C. § 1983, 1985, and 1986. The fifteen defendants in this
action are as follows: Adventist Health, Inc. ("Adventist"), joint
operator of Redbud Community Hospital; Donald R. Ammon ("Ammon"),
executive vice president of Adventist; Michael Schultz ("Schultz"),
vice president of Adventist; J. J. & R. Emergency Medical Group
of California, Inc. ("J.J. & R."); Adventist-Redbud Hospital, Inc.
("Adventist-Redbud"); Physicians Insurance Company ("Physicians Ins.
Insurance Company ("Doctors Ins. Co."); Lynch Gilardi & Grummer
("LG & G"), Robert Lynch, Esq. ("Lynch") and Matthew Miller, Esq.
("Miller"), attorneys for defendant Schug in Burrows I; Mark
Freeman, M.D. ("Freeman"), Chief of Staff and Chairman of the Executive
Committee at Redbud Hospital; Barry Staum, M.D. ("Staum"), president of
J.J. & R.; Wolfgang Schug, M.D. ("Schug"); Bruce Deas, M.D. ("Deas"),
a licensed California physician who served as an expert witness for
defendants J.J. & R. and Schug in Burrows I; and Steven
Schepper ("Schepper"), vice president of J.J. & R.
Plaintiffs brought suit for monetary damages and injunctive relief
against defendants for conspiring to deny plaintiffs civil rights by,
among other things, "fraudulently altering medical records and
obstructing justice in plaintiffs' attempts to seek redress in the courts
of the United States." Compl. at ¶ 1. Plaintiffs allege that the
Redbud Community Healthcare District ("District"), a duly-constituted
California governmental entity, "performed and acted under color of
law." Id. at ¶ 5. Other defendants
Adventist-Redbud, Adventist, Ammon, Schultz, J.J. & R, Staum,
Schepper, Schug, and Freeman are alleged to have colluded with
the District and, as co-conspirators, also acted under color of law.
Id. at ¶¶ 5-8.*fn2 Plaintiffs allege that, as an expert
witness for defendants J.J. & R. and Schug, Deas "gave false
testimony and otherwise acted in violation of Federal Rule of Civil
Procedure 26," governing discovery and disclosure. Id. at
¶ 10. Doctors Ins. Co. and Physicians Ins. Co. were the liability
carriers for Schug, J.J. & R., Adventist and Adventist-Redbud. As
such, they "became aware of the acts, errors, omissions and conspiracies
on the part of the other defendants alleged herein and were in a
position, but failed, to prevent the civil rights conspiracy violations
set forth" in plaintiffs' complaint. Id. at ¶ 11.
Defendants Doctors Ins. Co., LG&G, Lynch, Miller, Staum, Schug,
Deas, and Schepper, later joined by J.J. & R ("Doctors Ins. Co., et
al."), filed motions to dismiss, arguing that (i) plaintiffs have failed
to state a cause of action under §§ 1983, 1985, and 1986; and (ii)
plaintiff's' claims for relief are all barred by the statute of
limitations. See Mot. to Dismiss filed by Doctors Ins. Co., et
al. Defendant Mark Freeman brought
a motion to dismiss arguing that plaintiffs' action is barred by
the statute of limitations. See Mot. to Dismiss filed by
Freeman. Defendants Adventist Health, Adventist-Redbud, Ammon, and
Schultz ("Adventist Health, et al.") filed a motion to dismiss arguing
that (i) res judicata bars plaintiffs from relitigating the claims
presented in this action and (ii) plaintiffs' claims are barred by the
statute of limitations. See Mot. to Dismiss filed by Adventist
Health, et al.
3. Plaintiffs' motion to dismiss the lawyer-defendants
The filing of this action, i.e., Burrows II, has effectively
stalled the progress of Burrows I, because plaintiffs have sued
Schug, the remaining defendant in Burrows I. as well as his counsel Lynch
and Miller, and their firm LG&G. Plaintiffs have attempted to remedy
this by dismissing LG&G, Lynch and Miller. All defendants except the
Adventist Health defendants oppose plaintiffs' motion to dismiss, arguing
that "the proposed dismissal does not obviate the potential conflicts of
interest facing the lawyer defendants in the Burrows I matter
and would result in impermissibly splitting plaintiffs' cause of action
in Burrows II and omission of necessary parties." Defs.' Opp'n
at 2:20-22. These latter defendants argue for denial of plaintiffs'
motion to dismiss and for the Court to proceed to hear defendants'
12(b)(6) motions. The Court agrees. For the sake of judicial economy,
the Court addresses all of defendants' Federal Rule of Civil Procedure
12(b)(6) motions to dismiss at this time.
Under Federal Rule of Civil Procedure 12(b)(6), a district court must
dismiss a complaint if it fails to state a claim upon which relief can be
granted. The question presented by a motion to dismiss is not whether the
plaintiff will prevail in the action, but whether the plaintiff is
entitled to offer evidence in support of the claim. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by
Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).
In answering this question, the Court must assume that the plaintiff's
allegations are true and must draw
all reasonable inferences in the plaintiff's favor See Usher
v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if
the face of the pleadings suggests that the chance of recovery is remote,
the Court must allow the plaintiff to develop the case at this stage of
the proceedings. See United States v. City of Redwood City,
640 F.2d 963, 966 (9th Cir. 1981).
If the Court dismisses the complaint, it must then decide whether to
grant leave to amend. The Ninth Circuit has "repeatedly held that a
district court should grant leave to amend even if no request to amend
the pleading was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts." Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal
quotation marks omitted).
Three issues are raised by defendants' motions to dismiss: (i) whether
plaintiffs state a claim under 42 U.S.C. § 1983, 1985, and 1986; (ii)
whether res judicata bars plaintiffs from litigating the claims in the
present action; and (iii) whether plaintiffs' action is barred by the
one-year statute of limitations.
1. Failure to state a claim under 42 U.S.C. § 1983, 1985, and
A. Count One, plaintiffs' claim for relief under 42 U.S.C. § 1983,
fails to allege that defendants acted under color of state law
Count One of plaintiffs' complaint states a claim under
42 U.S.C. § 1983 and alleges, in relevant part, the following:
(i) the District (a duly-constituted California governmental entity),
Adventist, Ammon, Schultz, Freeman, J.J. & R., Schepper, and Schug
"came to an understanding and conspired to, cover up and withhold 26
from plaintiffs the true facts and evidence of Cody's care," Compl. at
¶ 21; (ii) the District and defendants Adventist, Physicians Ins.
Co., Doctors Ins. Co., J.J. & R., Schug, LG & G, Lynch and
Miller jointly agreed "to suppress evidence relevant to the
allegations specifically set forth by plaintiffs in their Complaint
Amended Complaint in Case No. 4345 by failing to disclosure (sic)
material documents and witnesses under FRCivP (sic) 26," Compl. at ¶
30; (iii) the District and defendants Adventist, Physicians Ins. Co.,
Doctors Ins. Co., J.J. & R., Schug, LG & G, Lynch and Miller
jointly agreed "to suppress evidence by withholding and failing to
produce documents relative to and properly called for in plaintiffs'
FIRST and SECOND REQUESTS FOR PRODUCTION OF DOCUMENTS by the assertion of
false and groundless objections and claims of privilege without
identifying the documents so as to enable plaintiffs to challenge the
validity of such claims," Compl. at ¶ 31; (iv) defendants Doctors
Ins. Co., J.J. & R., Schug, LG & G, and Lynch "offered and
suborned false deposition testimony by defendant Schug, and thereafter
all defendants named herein adopted and ratified that conduct in their
litigation defense of Case No. 4345," Compl. at ¶ 32; and
(v) defendant Adventist Redbud, in furtherance of the conspiracy,
"destroyed the original, albeit false, documents constituting Cody's
medical records," Compl. at ¶ 36.
Defendants argue that plaintiffs have not, and cannot, adequately
allege that defendants acted under color of state law. Doctors Ins. Co.'s
Mot. to Dismiss at 3:15. Further, the allegations made against defendants
do not amount to a violation of plaintiffs' civil rights, but are
discovery abuses more properly addressed by Federal Rule of Civil
Procedure 26, governing discovery and duty of disclosure, and perjury.
Defendants argue that with respect to the alleged facts of destruction,
suppression, fraudulent alteration of material evidence and perjury the
defendants were acting "in their capacities as defined by their roles in
litigation . . . and not clothed with the power of the state."
Id. at 4:26-28, 5:1-2.
Plaintiffs respond that "it is well settled that private individuals
and entities are subject to civil rights liability when they act jointly
or in conspiracy with governmental entities/actors to deny citizens'
civil rights." Pls.' Mem. in Opp'n at 8:15-19, citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598 (1970);
Dennis v. Sparks, 449 U.S. 24. 101 S.Ct. 183 (1980);
United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539
(9th Cir. 1989). This statement of the law is unhelpful, however, since
plaintiffs allege no facts to demonstrate the specific manner in which
the District and its alleged co-conspirators acted under state law to
deprive plaintiffs of their civil rights during the course of litigating
Burrows I. An action is considered to be taken "under color
of state law if there is a "[m]isuse of power, possessed by virtue of
state law and made possible only because the wrongdoer is clothed with
the authority of state law." United States v. Classic,
313 U.S. 299, 326, 61 S.Ct. 1031, 1043 (1941). Nothing of that sort is
alleged here. Although "[p]rivate persons, jointly engaged with state
officials in the challenged action, are acting `under color' of law for
purposes of § 1983 actions." Collins v. Womancare,
878 F.2d 1145, 1154 (9th Cir. 1989), it is still necessary that
the state actor here, the District be acting "`under color"
of law in taking the actions alleged . Plaintiffs have failed allege
actions constituting a misuse of power made possible by authority of
Nor would amendment be fruitful. The actions about which plaintiffs
complain do not arise to a deprivation of their civil rights. The Court
agrees with defendants that the violations alleged are defined by and
within the boundaries of the parties' various roles in litigation, and
should be addressed and remedied, if at all, in that context. Plaintiffs
have failed to state an actionable claim under § 1983.
B. Count 2, plaintiffs' claim under 42 U.S.C. § 1985(2),
part 1, fails to state a cause of 12 action
42 U.S.C. § 1985(2), part 1*fn3, provides in pertinent part:
If two or more persons in any State or Territory
conspire to deter, by force, intimidation or
threat, any party or witness in any court of the
Untied States from attending such court, or from
testifying to any matter pending therein, freely,
fully and truthfully, or to injure such party or
witness in his person or property on account of
his having so attended or testified, . . . the
party so injured or deprived may have an action
for the recovery of damages occasioned by such
injury or deprivation, against any one or more of
Here, there are absolutely no allegations that parties or witnesses in
the underlying suit were intimidated or threatened against testifying. In
the absence of allegations of force, intimidation or threat, the Court
concurs with defendants and finds no proper cause of action under §
1985(2), part 1.
C Count 4, plaintiffs claim under 42 U.S.C.
§ 1985(3), fails to state a cause of action*fn4
Plaintiffs allege, in Count 4, that "defendants entered into and
carried out the above alleged conspiracy
and performed the above alleged acts with the purpose and intent of
denying plaintiffs equal privileges and immunities under the law." Compl.
at ¶ 45. The statute referred to in Count 4, however, is
42 U.S.C. § 1985(3), which requires "that there must be some racial,
or perhaps otherwise class based, invidiously discriminatory animus
behind the conspirators' action." Griffin v. Breckenridge,
403 U.S. 88
, 102, 91 S.Ct. 1790, 1798 (1971).
Defendants move to dismiss this claim because plaintiffs did not allege
any facts supporting racial or class based animus for purposes of this
claim. Plaintiffs respond by importing a conclusory allegation from the
now-dismissed Count Three, to the effect that defendants acted out of
"animus toward plaintiffs and their rights because they were Native
Americans and were therefore perceived by defendants to be financially
and socially irresponsible." Compl. at ¶ 42. This allegation, which
was not even intended to be part of the specific allegations supporting
Count 4, contains no facts which would support an assertion of racial or
class-based motivation on defendants' part. Nor do the other paragraphs
of the complaint, which contain the lengthy specific factual contentions
being made, contain any facts which would suggest racial or class-based
Since the underlying actions of all the parties have already been fully
explored in connection with the extensive pretrial activity and jury
trial in Burrows I, this Court has heard what evidence there is
and is confident that plaintiffs did not make such allegations because
they cannot make them: no evidence of racial or class-based bias has
emerged during the over seven years that these parties have been in
litigation with one another. Although plaintiffs request leave to amend,
under these circumstances the Court finds that leave to amend would be
futile. This claim will be dismissed.
D. Count 5, plaintiffs' claim under 42 U.S.C. §
1986, fails for lack of a valid claim under 42 U.S.C. §
42 U.S.C. § 1986 provides that "Every person, who, having knowledge
that any of the wrongs conspired to be done, and mentioned in section
1985 of this title, are about to be committed, and having power to
prevent or aid in preventing the commission of the same or refuses so to
do, if such wrongful act be committed, shall be liable to the party
injured . . ." Defendants correctly cite Hahn v. Sargent,
388 F. Supp. 445, 449-450 (D.Mass. 1975), which states that "[section 1986]
creates an additional cause of action for
refusal to take affirmative action in certain circumstances to prevent
the commission of an act giving rise to a claim under § 1985. No
claim lies under § 1986, however, except on the basis of a valid
claim under § 1985." Id.
The requirements of § 1986 are unambiguous. The Court has found no
valid claims under § 1985 and therefore cannot grant relief under
E. Count 6, alleging violations of 42 U.S.C. §
1983, 1985 and 1986, fails to state a claim
For the same reasons that Counts 1 through 5 fail to state claims, so
does Count 6.
2. Res judicata and the statute of limitations
Defendants Adventist Health, Adventist-Redbud, Ammon, and Schultz
contend that plaintiffs' statutory claims in Burrows II would,
in any event, be barred by res judicata because it involves the same
parties, the same claims and was finally disposed of, on the merits, in
these defendants' favor. Moreover, with respect to the civil rights
claims, the Ninth Circuit deemed these claims waived as to all
defendants. See Burrows v. Redbud Cmty. Hosp. Dist.,
34 Fed.Appx. 363, 366, 2002 WL 857873 at *3 (9th Cir. 2002)("since
petitioners raise these [§ 1983 and 1985] claims for the first time
on appeal, we consider them waived."). In fact, these claims are
parallel to the California state law claims that this Court dismissed
in its order on the motions concerning the third amended complaint.
See Order, May 24, 1999 (plaintiffs' claims of violation of
Cal. Penal Code § 471.5, obstruction of justice and conspiracy,
a count substituting for what was charged as "spoliation of evidence,
obstruction of justice and conspiracy" in the Second Amended Complaint).
The Court finds these arguments persuasive, and they provide another
reason to dismiss the claims as to these moving defendants
All defendants argue that this action is time barred, having been filed
some seven years after plaintiffs filed their initial complaint and two
and a half years after judgment was entered in the underlying action.
Plaintiffs respond that these claims did not accrue until final judgment
in Burrows I was rendered, in July, 2002. See Delew v.
Wagner, 143 F.3d 1219 (9th Cir. 1998); Karim-Panahi v. Los
Angeles Police Dept., 839 F.2d 621 (9th Cir. 1988). Given the
peculiar procedural posture of this action, it is not clear when the
limitations did begin running or whether it was tolled at any
point. Since the claims have all been dismissed, however, resolution of
this question at this time is moot.
3. Leave to amend
Federal Rule of Civil Procedure 15 governs the amendment of complaints.
It states that if a responsive pleading has already been filed, the party
seeking amendment "may amend the party's pleading only by leave of court
or by written consent of the adverse party. Leave shall be freely given
when justice so requires." Fed.R.Civ.P. 15(a). The Court may deny
amendment under Rule 15(a) "when amendment would be clearly frivolous,
unduly prejudicial, cause undue delay or a finding of bad faith is made."
United Union of Roofers v. Ins. Co. of America, 919 F.2d 1398,
1402 (9th Cir. 1990). A Court may also deny amendment if that amendment
would be futile, or if there have been previous unsuccessful attempts to
cure deficiencies. See Foman, 371 U.S. at 182, 83 S.Ct. at
Plaintiffs ask the Court, throughout their opposition, to allow for
leave to amend if the Court does not agree that a cause of action has
been stated under §§ 1983, 1985, and 1986. The Court, under the
guidance of Foman, denies plaintiffs' request for leave to amend. As
evidenced above, plaintiffs have tried numerous to times to make their
"spoliation of evidence, obstruction of justice and conspiracy" claims.
Plaintiffs amended their initial complaint three times, filing a total of
four complaints in Burrows I. They have attempted to remedy
failed attempts at relief under state law claims and now bring,
unsuccessfully, federal claims under §§ 1983, 1985, and 1986. The
Court finds that plaintiffs, after several attempts, are not able to cure
the pleading deficiencies for these claims and therefore denies leave to
For the foregoing reasons and for good cause shown, the Court hereby
GRANTS defendants' motions to dismiss without leave to amend. The
Adventist defendants' motion for sanctions is DENIED as moot.
IT IS SO ORDERED. [Docket ## 7, 10, 11, 12, 20, 27]