United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND Doc. 4 THIRTY-DAY DEADLINE
BARBARA A. McAULIFFE, District Judge.
Debby Genthner ("Plaintiff"), proceeding pro se and
in forma pauperis, initiated this civil action on April 25,
2016. On April 28, 2016, the Court dismissed Plaintiff's
complaint based on the failure to adequately allege this
Court's subject matter jurisdiction. The Court directed
Plaintiff to file an amended complaint within thirty days.
Doc. 3. Plaintiff's first amended complaint, filed on May
27, 2016, is currently before the Court for screening. Doc.
Court is required to screen complaints brought by persons
proceeding in pro per. 28 U.S.C. Â§ 1915(e)(2).
Plaintiff's complaint, or any portion thereof, is subject
to dismissal if it is frivolous or malicious, if it fails to
state a claim upon which relief may be granted, or if it
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. Â§ 1915(e)(2)(B)(ii).
complaint must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but "[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
"are not required to indulge unwarranted
inferences." Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
litigants are entitled to have their pleadings liberally
construed and to have any doubt resolved in their favor,
Wilhelm v. Rotman, 680 F.3d 1113, 1121-1123 (9th
Cir. 2012), Hebbe v. Pliler, 627 F.3d 338, 342 (9th
Cir. 2010), but to survive screening, Plaintiff's claims
must be facially plausible, which requires sufficient factual
detail to allow the Court to reasonably infer that each named
defendant is liable for the misconduct alleged,
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation
marks omitted); Moss v. United States Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer
possibility that a defendant acted unlawfully is not
sufficient, and mere consistency with liability falls short
of satisfying the plausibility standard. Iqbal, 556
U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at
her original complaint, Plaintiff brings suit against Clovis
Community Hospital and Nurse Practitioner David Stone.
Plaintiff alleges that she went to the Clovis Community
Hospital Emergency room for treatment of severe burn damages
to her mouth and throat on April 21, 2014. Doc. 4 at 1.
Plaintiff contends that Defendant Stone examined her mouth
and throat and offered her a prescription for the sores in
her mouth. Plaintiff claims that Defendant Stone should have
seen the burn damage. Her throat was raw, she had sores all
around her mouth, the sides of her mouth had deep burn marks
and she had a deep pit on one side and a cut mark on the
further alleges that Defendant Stone made her sit in the
waiting room for four and a half hours and suffer with a
burning mouth. She was not offered any pain medication.
Plaintiff alleges that Defendant Stone should have examined
and treated her right away or called in specialist to look at
her injuries. Plaintiff contends that she tried to explain
her injuries to Defendant Stone, but all he could do was
mentally abuse her and tell her that her sore throat caused
the sides of her mouth to swell up. Plaintiff also contends
that Defendant Stone should have reported the damages to the
asserts claims for violation of her civil rights, negligence,
and failure to report her injuries.
First Amended Complaint, Plaintiff alleges that Defendant
Stone violated her rights under the Fourteenth Amendment to
the United States Constitution by failing to properly
diagnose, treat and report the severe burn damages to her
mouth and throat.
Fourteenth Amendment provides that no State shall "make
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV, Â§ 1. Generally, only "state action
[is] subject to Fourteenth Amendment scrutiny and private
conduct... is not." Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n,531 U.S. 288, 295
(2001); Jackson v. Metropolitan,419 U.S. 345, 349
(1974) ("private action is immune from the restrictions
of the Fourteenth Amendment"). However, private action
may be considered State action if "there is such a close
nexus between the State and the challenged action' that
seemingly private behavior may be fairly treated as that of
the State itself.'" Brentwood Acad., 531
U.S. at 295 (citation omitted); Jac ...