Opinion
No. C 02-05519 WHA
February 18, 2003
ORDER DISMISSING SECTION 1983 CLAIM AND REMANDING FOR LACK OF SUBJECT-MATTER JURISDICTION
INTRODUCTION
This order dismisses plaintiffs Section 1983 claim and remands the action to the Superior Court for Alameda County for want of federal jurisdiction.
STATEMENT
Plaintiff filed the instant action in state court, alleging various causes of action concerning the dialysis treatment he receives for end stage renal disease. One of the defendants, Health Net Insurance Company, removed the action to this Court on September 9, 2002, asserting that the action raised a federal question. A November 5 order remanded the action to state court based on the original pleading. On September 12, plaintiff had filed a first amended complaint, which included a new cause of action under 42 U.S.C. § 1983. For the purposes of the remand analysis, plaintiffs Section 1983 claim was disregarded as it was not in the complaint upon which removal was premised.
After the remand, a second defendant, Davita-Peralta Renal Center, removed the case on the ground that the first amended complaint asserted federal-question jurisdiction based on the Section 1983 claim. The Court sua sponte raised the issue of subject-matter jurisdiction. On January 17, 2003, an order to show cause issued directing the parties to submit memoranda regarding the basis for subject-matter jurisdiction, devoting particular attention to whether defendants were, for the purposes of the Section 1983 claim, state actors that acted under the color of state law.
The first amended complaint names as defendants Health Net Insurance Company, Hill Physicians Medical Group, Davita, Inc., Davita-Peralta Renal Center, and Anita Carstensen M.D., in addition to John Doe defendants. According to the allegations, plaintiff has been insured through Health Net Seniority Plus Plan, a Medicare + Choice HMO plan. Plaintiff alleges that Dr. Carstensen is his primary-care nephrologist and is part of Hill Physicians, which contracts with Health Net to provide medical services under the insurance contract. Plaintiff received dialysis treatments at Davita-Peralta Renal Center, which was owned and operated by Davita, Inc.
ANALYSIS
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983. To state a claim under Section 1983, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001). The under-color-of-state-law element is a "jurisdictional requisite" for a Section 1983 action. West, 487 U.S. at 46.
With respect to the Section 1983 claim, the first amended complaint alleges that defendants, all insurance companies and doctors, "are state actors because (1) they are engaged in a joint venture with the United States of America under the Medicare Choice program and (2) they are engaged in a joint venture with the United States of America under the End Stage Renal Dialysis Program." It further states that the "actions and failures to act of the [defendants] described above therefore were taken under color of law" and "deprived [plaintiff] of his rights under color of law."
In the first amended complaint and his memorandum regarding jurisdiction, plaintiff essentially contends that because the federal government provides for universal medical treatment for end stage renal disease through a network of vendors, over which the federal government exercises control, the vendors are state actors for purposes of Section 1983. Plaintiffs analysis, however, is fundamentally flawed because it conflates federal action with state action. Whether defendants' acts were sufficiently entwined with the federal government such that they acted under color of federal law does not matter. Flamingo Indus, v. United States Postal Serv., 302 F.3d 985, 997 (9th Cir. 2002). Section 1983 concerns deprivations that take place under color of state law. Neither the first amended complaint nor plaintiffs memorandum regarding jurisdiction identify any state law under color of which any act of any defendant allegedly occurred. Accordingly, plaintiffs Section 1983 claim cannot survive. In absence of that claim, there is no basis for federal jurisdiction. Plaintiffs Section 1983 claim must therefore be dismissed and the action must be remanded to the Superior Court of Alameda County. In light of the conclusion that jurisdiction is lacking, the Court shall not entertain other motions pending in this case.
This is the second time that this case has been wrongfully removed to the federal court. On remand, please get to the merits and avoid wasting more time on removals.
CONCLUSION
For the foregoing reasons, plaintiffs claim under 42 U.S.C. § 1983 is DISMISSED and the action is REMANDED to the Superior Court of Alameda County.IT IS SO ORDERED.