Opinion
3:21-cv-00520-MMD-CLB
09-21-2022
THE ESTATE OF JILL ANN ESCHE, et al., Plaintiffs, v. RENOWN REGIONAL MEDICAL CENTER, et al., Defendants.
ORDER
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
I. SUMMARY
After the death of Jill Ann Esche, Plaintiffs The Estate of Jill Ann Esche, Sierra Jill Wofford by and through her guardian ad litem Wayne Wofford, and Cameron Scott Esche sued Defendants Renown Regional Medical Center, Marta J. Bunuel-Jordana, M.D., Caroline Vasendin, M.D., Johanna Gruen, PhD., Earle Oki, M.D., Maegen Smith, RN, and Caitlin E. Herschel, RN, alleging civil rights violations and negligence claims. (ECF No. 6 (“Complaint”).) Before the Court is Defendant Earle Oki's motion to dismiss (ECF No. 18) all of Plaintiff's claims against him. As further explained below, because Plaintiffs fail to sufficiently allege that Oki is a state actor, the Court finds that Plaintiffs fail to state a claim against Oki. The Court will therefore grant the motion but will grant Plaintiffs leave to amend their claims.
Plaintiffs responded (ECF No. 27), and Defendants replied (ECF No. 29).
II. BACKGROUND
The Court adapts the following allegations from the Complaint. Plaintiffs allege that, beginning in late October 2020, Defendants sought and obtained court orders from the Washoe County Second Judicial District Court to involuntarily commit Jill Esche, then approximately 31 weeks pregnant, for over a month until almost immediately after she gave birth to her child Sierra Wofford by Caesarean section surgery on November 20, 2020. (ECF No. 6 at 5-7.) Plaintiffs further allege that Defendants forcibly administered medication and repeatedly reported to the state court that Esche was “not medically cleared” to participate in hearings related to her involuntary hold. (Id. at 6-7.) Plaintiffs also allege that Defendants discharged Esche from the hospital on November 22, 2020, and several hours later, Esche was found deceased. (Id. at 8-9.)
As pertinent to the motion, Plaintiffs allege, specifically as to Oki, that: (1) Oki is “a licensed physician in the State of Nevada [and] resident of Washoe County”; (2) Oki is an “apparent or ostensible agent[]” of Renown “acting within the course and scope of [his] employment”; (3) Oki evaluated Esche upon her arrival to Renown on October 20, 2020; (4) Smith and Herschel, following Oki's orders, discontinued Esche's “PICC line” before her discharge on November 22, 2020; (5) Oki, as Esche's “treating medical physician,” “recommended continued inpatient treatment and observation” after Esche delivered her baby via Caesarean section surgery on November 20, 2020; and (6) Smith and Herschel, upon Oki's orders, discharged Esche from Renown's care “against medical advice.” (Id. at 3-5, 8, 13-14.)
Plaintiffs further allege that “Renown and the individual defendants acted under color of state law by so closely collaborating with state actors in the detention, evaluation, treatment, and failure to make Jill available for Court evaluation as to make their actions indistinguishable from the State's, and by serving the public functions of confining involuntarily committed individuals and providing them mental health evaluation and treatment services.” (Id. at 10, 12-13.)
Plaintiffs have asserted five causes of action against Defendants: (1) 42 U.S.C. § 1983 (“Section 1983”) - Fourth Amendment; (2) Section 1983 - Fourteenth Amendment; (3) Section 1983 - Failure to Train/Supervise; (4) Wrongful Death/Medical Negligence; and (5) General Negligence. (Id. at 10-16.) Oki now moves to dismiss all claims asserted against him under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiffs fail to allege sufficient facts to state a claim for relief against him under Section 1983 or state law. (ECF No. 18 at 1.) Plaintiffs oppose Oki's motion to dismiss and argue that they have pleaded facially plausible claims. (ECF No. 27.)
III. LEGAL STANDARD
A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pleaded complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citation omitted). While Rule Eight does not require detailed factual allegations, it demands more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555) (internal quotations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. See id. at 678-79. First, a district court must accept as true all well-pleaded factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. See id. at 678. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. See id. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. See id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. See id. at 678. Where the complaint does not permit the Court to infer more than the mere possibility of misconduct, the complaint has “alleged-but it has not show[n]-that the pleader is entitled to relief.” Id. at 679 (alteration in original) (internal quotation marks and citation omitted). That is insufficient. When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. See Twombly, 550 U.S. at 570.
IV. DISCUSSION
Oki seeks dismissal of all claims asserted against him. (ECF No. 18 at 1.) Plaintiffs concede that only the first two causes of action, Section 1983 claims based on violations of the Fourth Amendment and Fourteenth Amendment, respectively, are brought against Oki. (ECF No. 27 at 2.) The Court thus addresses Oki's motion as to only the two challenged Section 1983 claims. The Court then addresses whether it will grant Plaintiff leave to amend the claims that the Court agrees with Defendants should be dismissed.
Because Plaintiffs concede that they do not assert their fourth and fifth causes of action against Oki, the Court need not-and does not-address Oki's arguments and Plaintiffs' counterarguments about whether Plaintiffs were required to comply with and have indeed complied with NRS § 41A.071, which appear to be directed at the fourth and fifth claims. (ECF No. 27 at 2; ECF No. 18 at 11-14.)
A. Section 1983 Claims - State Action
As a threshold matter, Oki correctly notes that Plaintiffs' opposition raises new allegations and cites to records, specifically Defendants' initial disclosures, not included with the Complaint. (ECF No. 29 at 2-5.) The Court agrees with Oki that it is improper for the Court to consider new assertions and such evidence at the motion to dismiss stage. See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.”) (internal quotations, emphasis, and citation omitted). The Court will therefore not consider Plaintiffs' new allegations or citations to initial disclosures in deciding this motion.
But to be clear, the Court may-and will-consider allegations raised for the first time in Plaintiffs' opposition papers in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice. See Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137-38 (9th Cir. 2001).
Oki argues that Plaintiffs fail to state a claim against him under Section 1983 because Plaintiffs do not sufficiently plead that he is a state actor. (ECF No. 18 at 6-9.) Plaintiffs respond that Oki's actions are “inextricably intertwined with the state's process to involuntarily restrict” Esche's freedom. (ECF No. 27 at 1.) As explained below, the Court agrees with Oki.
Oki also argues that Plaintiffs fail to allege sufficient facts that Oki violated Esche's Fourth and Fourteenth Amendment rights. (ECF No. 18 at 9-11.) It appears that Oki is likely correct because, as discussed further below, specific allegations against Oki in the Complaint are sparse and not directly connected to the alleged violations. (ECF No. 6.) But the Court need not-and does not-address those arguments to reach its conclusion.
To state a claim under Section 1983, a plaintiff “must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of law.” West v. Atkins, 487 U.S. 42, 48-49 (1988) (citations omitted). A private entity may be subject to liability under Section 1983 in certain situations. See Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 954 (9th Cir. 2008). But the Court must begin its analysis with the presumption that private conduct does not constitute governmental action. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). “State action may be found if, though only 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.” Villegas, 541 F.3d at 955 (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)) (internal quotations and brackets omitted).
Plaintiffs' allegations do not establish that Oki is a state actor. As to Plaintiffs' first and second causes of action, the Complaint contains no specific allegations against Oki, much less any specific allegations that Oki is a state actor. (ECF No. 6 at 10-13.) In fact, Oki is only mentioned by name six times throughout the entire 18-page Complaint, as detailed above. (Id. at 3-5, 8, 13-14.) Taken as true, none of those specific allegations, which merely identify Oki as Esche's physician at Renown and a few of his orders and recommendations regarding Esche's obstetrics treatment and discharge, suggest a “close nexus” between the government and Oki's actions while employed at a private hospital. (See id.) See also Villegas, 541 F.3d at 955. Moreover, they bear no meaningful connection to the alleged “state action” of Plaintiffs' first two claims, which appears to be based on Defendants' continued involuntary commitment of Esche and preventing Esche from participating in hearings regarding her involuntary hold. (ECF No. 6 at 10-13.) The Court therefore finds these specific allegations against Oki do not sufficiently plead state action.
As to the first two causes of action, the Complaint contains some allegations that tend to show state action, but those allegations similarly do not establish that Oki is a state actor. First, Plaintiffs broadly allege that “Renown and the individual defendants acted under color of state law by so closely collaborating with state actors . . . as to make their actions indistinguishable from the State's.” (Id. at 10, 12.) Oki argues that Plaintiffs' allegation here is “vague and conclusory” and makes “no connection” between Oki's actions that can “fairly be attributed to the government.” (ECF No. 18 at 8.) The Court agrees with Oki and finds that Plaintiffs' broad allegation is a legal conclusion not entitled to the assumption of truth and therefore insufficient to state a plausible claim. See Iqbal, 566 U.S. 662, 678.
Second, the Court also agrees with Oki that to the extent the “state action” is based on allegations of extending the legal hold of Esche, those allegations are not directed at Oki but specifically at Defendants Renown, Vasendin, Gruen, and Bunuel. (ECF No. 6 at 11.) And to the extent the “state action” is based on allegations of preventing Esche from exercising her due process rights, those allegations are broadly directed at unspecified Defendants with no factual assertions connecting such allegations to Oki, as the Court found above. (Id. at 12-13.)
Lastly, the Court finds unpersuasive Plaintiffs' various arguments in response. While it may be true, as Plaintiffs argue, that “a determination of whether a party is a state actor is an intensive, specific factual analysis,” Plaintiffs still fail to sufficiently allege that Oki is a state actor. (ECF No. 27 at 6.) And Plaintiffs' reliance on Rawson v. Recovery Innovations, Inc., 975 F.3d 742 (9th Cir. 2020), to argue that Oki is a state actor is similarly unpersuasive. (ECF No. 27 at 7-10.) In Rawson, the Ninth Circuit, reversing a district court's grant of summary judgment, held that a private hospital and some of its employees were acting as state actors when they allegedly wrongfully detained the plaintiff, forcibly injected him with antipsychotic medications, and misled a court into extending his period of involuntary commitment. See 975 F.3d at 745. Plaintiffs analogize this case to Rawson using new allegations specifically directed at Oki (e.g., “that Oki himself ‘renewed' the legal hold”) and supported by citations to records not included in the Complaint that, again, the Court cannot consider. (ECF No. 27 at 9-10.) Plaintiffs' Rawson arguments are therefore unpersuasive at this stage.
Accordingly, Plaintiffs have not rebutted the presumption that private conduct does not constitute governmental action and fail to state a claim under Section 1983 against Oki. See Sutton, 192 F.3d at 835. The Court will thus dismiss all claims against Oki.
B. Leave to Amend
Plaintiffs request leave to amend if the Court dismisses any of Plaintiffs' claims against Oki. (ECF No. 27 at 10.) Oki argues that amendment will not cure Plaintiffs' “fatal defect” in their Section 1983 claims against him. (ECF No. 29 at 10-11.) As explained below, the Court disagrees with Oki and grants Plaintiffs leave to amend.
The Court has discretion to grant leave to amend and should freely do so “when justice so requires.” Fed.R.Civ.P. 15(a); see also Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Nonetheless, the Court may deny leave to amend if it will cause: (1) undue delay; (2) undue prejudice to the opposing party; (3) the request is made in bad faith; (4) the party has repeatedly failed to cure deficiencies; or (5) the amendment would be futile. See Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008). Facts raised for the first time in a plaintiff's opposition papers should be considered by the Court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice. See Orion Tire Corp., 268 F.3d at 1137-38.
As evidenced by Plaintiffs' attempts to assert new allegations against Oki in their opposition brief, amendment is unlikely to be futile. (ECF No. 27.) Moreover, Plaintiffs have not previously amended their Complaint and therefore have not repeatedly failed to cure deficiencies. The Court thus finds that leave to amend is appropriate with respect to Plaintiffs' claims against Oki. Plaintiffs must file their amended complaint containing amended allegations against Oki within 30 days.
V. CONCLUSION
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the motion before the Court.
It is therefore ordered that Defendant Earle Oki's motion to dismiss (ECF No. 18) is granted, but the Court grants Plaintiffs leave to amend.
It is further ordered that Plaintiffs must file their amended complaint containing amended allegations to cure the deficiencies identified herein against Oki within 30 days. Failure to do so will result in dismissal of the claims against Oki with prejudice.