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Char v. Kaiser Hospital

United States District Court, D. Hawaii

October 23, 2018

MARK ALAN CHAR, #A0234438, Plaintiff,



         Pro se Plaintiff Mark Alan Char is a pretrial detainee incarcerated at the Halawa Correctional Facility.[1] Char alleges that Defendants Kaiser Permanente Moanalua Medical Center (Kaiser Permanente), its employees, Doctors John Does 1-2 and Jane Does 1-2 (collectively, Kaiser Defendants), and a Department of Public Safety correctional officer, ACO John Doe, violated his federal civil rights and state law while he was hospitalized at Kaiser Permanente in September and October 2016.

         Char's Complaint is DISMISSED in part with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a-b).


         Because Char is a prisoner proceeding in forma pauperis who alleges claims against government officers, the court performs a pre-answer screening of his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Byrd v. Phoenix Police Dep't, 885 F.3d 639, 641 (9th Cir. 2018). Claims that are frivolous, malicious, fail to state a claim for relief, or seek damages from defendants who are immune from suit must be dismissed. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing § 1915A(b)).

         Section 1915 screening involves the same standard of review as that under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (screening under § 1915(e)(2)); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (screening under § 1915A(b)). That is, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         Rule 12(b)(6) is read in conjunction with Rule 8(a). Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Under Rule 8, a 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 a complaint must allege enough facts to provide both “fair notice” of the claim asserted and “the grounds upon which [that claim] rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation and quotation marks omitted); see also Iqbal, 556 U.S. at 555 (stating Rule 8 pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). The “mere possibility of misconduct” falls short of meeting this standard. Iqbal, 556 U.S. at 555; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         Pro se litigants' pleadings must be liberally construed, and all doubts should be resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Leave to amend must be granted if it appears the plaintiff can correct the defects in the complaint. Lopez, 203 F.3d at 1130.


         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Additionally, a plaintiff must allege that he suffered a specific injury as a result of a particular defendant's conduct and an affirmative link between the injury and the violation of his rights. See Monell v. Dep't of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

         A. Counts I-VIII: Kaiser Defendants

         Char alleges that Kaiser Defendants Doctors John Does 1-2 improperly cared for him, causing him to develop a pressure ulcer that lasted approximately ten months and required surgery. He alleges Jane Does 1-2, Kaiser Permanente nurses working the midnight shift, dislocated his collar bone when they roughly changed his bed sheets. Char alleges Kaiser Defendants were negligent and deliberately indifferent to his serious medical needs in violation of the Eighth and Fourteenth Amendments and state law. See Compl., ECF No. 1, PageID #7-14, Counts I-VIII (alleging Eighth and Fourteenth Amendment violations and intentional infliction of emotional distress (IIED), negligence, negligent infliction of emotional distress (NIED), assault and battery, and municipal liability).

         First, as a pretrial detainee, Char's claims arise under the Fourteenth, not the Eighth Amendment. See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979) (holding that, under the Due Process Clause, a pretrial detainee may not be punished prior to conviction)). Claims alleged under the Eighth Amendment are dismissed.

         Second, private hospitals and doctors are not generally considered state actors amenable to suit under § 1983. See Briley v. California, 564 F.2d 849, 855-856 (9th Cir. 1977) (noting that “private hospitals and physicians have consistently been dismissed from § 1983 actions for failing to come within the color of state law requirement of this section”); see also Babchuk v. Indiana Univ. Health, Inc., 809 F.3d 966, 970-71 (7th Cir. 2016). “[T]o show that a private action is in fact state action, the plaintiff must show that there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Grijalva v. Shalala, 152 F.3d 1115, 1119 (9th Cir. 1998) vacated on other grounds by 526 U.S. 1096 (1999); see also West v. Atkins, 487 U.S. 42, 54 (1988) (holding that a doctor employed part-time by the state acted under color of law when he treated inmates in a state prison); Chudacoff v. Univ. Med. Ctr. of S. Nevada, 649 F.3d 1143, 1146 (9th Cir. 2011) (holding county hospital's medical committee members were state actors, because the hospital was a public entity that was required to “meet the provisions of the Fourteenth Amendment, ” and defendants' authority “flow[ed] directly from the state”).

         Char may only hold Kaiser Defendants liable if he shows that they contracted directly with the state to provide medical services to inmates and can otherwise show their close connection, or nexus, to the State. Nothing within Char's Complaint as pleaded, ...

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