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September 15, 2005.


The opinion of the court was delivered by: IRMA GONZALEZ, District Judge


Doc. No. 16.]

Presently before the Court is Scripps Mercy Hospital's ("Scripps") motion to dismiss plaintiff's First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the Court grants Scripps's motion to dismiss without prejudice.


  Plaintiff Gerald Patyten ("plaintiff") is a pro se litigant. On August 5, 2005, plaintiff filed a FAC in his civil rights action against Scripps for personal injuries allegedly caused by its agents and employees. (Compl. at 1.)

  Plaintiff alleges that he suffered various injuries and indignities while at Scripps on the evening of St. Patrick's Day, March 17, 2005. (Compl. at 2.) Specifically, he alleges: (1) he was hit on the head with an X-ray machine; (2) Scripps's security officers broke his thumb, kicked his legs out from under him, and called him a piece of shit; (3) he was put in the back of a van that was filled with blood; and (4) he was put in a wheelchair and made to sit out in the cold. (Compl. at 1-2.) Plaintiff seeks six million dollars in damages.

  On August 17, 2005, Scripps filed a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 16.) Patyten did not file an opposition, and Scripps did not file a reply. Pursuant to Civil Local Rule 7.1(d)(1), the Court took the matter under submission.


  A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) tests whether a plaintiff's claims are legally sufficient. See Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (2001). A complaint may be dismissed "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (internal quotations omitted). Such a situation arises when the complaint either lacks a cognizable legal theory or fails to plead facts essential to a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

  A court considering a Rule 12(b)(6) motion must accept all material, non-conclusory allegations of fact in the complaint as true and must construe those allegations in the light most favorable to the plaintiff. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). However, a court is not required to credit "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A court may dismiss a complaint without granting leave to amend only if it appears with certainty that the plaintiff cannot state a claim. See, e.g., Fed.R.Civ.P. 15(a) (stating that leave to amend "shall be freely given when justice so requires"); Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988).

  This Court recognizes that it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements. Borzeka v. Heckler, 739 F.2d 444, 447 n. 2 (9th Cir. 1984) (defective service of complaint by pro se litigant does not warrant dismissal); Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984). Thus, for example, pro se pleadings are liberally construed, particularly where civil rights claims are involved.

  Where a district court addresses whether a plaintiff has established the requisite elements of his section 1983 claim, such a determination goes to the sufficiency of the pleading to state a claim. See Black v. Payne, 591 F.2d 83, 86 n. 1 (9th Cir. 1979). To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right. Rinker v. Napa County, 831 F.2d 829, 831 (9th Cir. 1987).

  Here, plaintiff sues Scripps, a private hospital, incorporated under the laws of California. The Ninth Circuit has consistently dismissed private hospitals and doctors in section 1983 claims for failing to come within the color of state law. See Briley v. California, 564 F.2d 849, 855-56 (9th Cir. 1977) (private hospitals not acting under color of state law unless the state is significantly involved in the private party's activities); Watkins v. Mercy Med. Ctr., 520 F.2d 894, 896 (9th Cir. 1975) (private doctors normally do not come within the color of state law). However, a private party may be sued under section 1983 if sufficient facts are alleged to show that the conduct of the private party is "fairly attributable to the State" and that there was an agreement between the state and the private party to deprive plaintiff his constitutional rights. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-37 (1982). Plaintiff has not pleaded specific facts alleging that Scripps colluded with a state official to deprive him of his constitutional rights. While plaintiff alleges that Scripps called the police to remove him from the premises, a single request that the police perform their peace-keeping responsibilities is insufficient to establish a claim against Scripps, a private actor, pursuant to section 1983. Howerton v. Gabica, 708 F.2d 380, 385 (9th Cir. 1983); accord King v. Massarweh, 782 F.2d 825, 828-29 (9th Cir. 1986). Accordingly, the Court dismisses plaintiff's civil action for failure to state a claim upon which relief can be granted because plaintiff has not pleaded facts sufficient to allege that Scripps acted under color of state law.

  If plaintiff wishes to file a second amended complaint, he must provide the Court with a short, plain statement setting forth: (1) facts to show that Scripps wilfully participated in a joint action with state officials to deprive plaintiff of his constitutional rights; (2) the rights plaintiff believes were violated; (3) how Scripps's acts are connected to the violation of plaintiff's rights; and (4) what injury plaintiff suffered because of Scripps's conduct. While this Court dismiss the complaint with leave to amend, plaintiff is advised that a ...

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