The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
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
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 ...