Opinion
Case No. 3:20-cv-00920-AC
06-11-2020
BRADFORD LONERGAN, Plaintiff, v. PROVIDENCE HEALTH SERVICES, Defendant.
FINDINGS AND RECOMMENDATION :
Plaintiff Bradford Lonergan, proceeding pro se, filed a Complaint asserting a variety of constitutional and statutory violations and seeks leave to proceed in forma pauperis ("IFP"). For the following reasons, Plaintiff's IFP petition (ECF No. 2) should be granted, and the Complaint (ECF No. 1) should be dismissed with leave to amend.
Legal Standards
Generally, all parties instituting any civil action in United States District Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for meaningful access to federal courts despite their inability to pay the costs and fees associated with that access. To authorize a litigant to proceed IFP, a court must make two determinations. First, the court must determine whether the litigant is unable to pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1), Second, the court must assess whether the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune to such relief. 28 U.S.C. § 1915(e)(2)(B).
With respect to the second determination, district courts have the power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint on the defendants, and they must dismiss a complaint if it fails to state a claim. Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and "contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The court should construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Id.
I. IFP Petition
Plaintiff's IFP petition form reports that he has $100 in cash or checking accounts, was last employed by Fred Meyer, is currently unemployed, his primary asset is a van, and that his only source of income is food stamps. Plaintiff indicates that he may have a retirement worth $1,900, but that he has monthly expenses of automobile insurance and fuel. Plaintiff also reports that he is houseless. This assertion is supported by the lack of a street address provided with his Complaint, and that his mail should go to general delivery. Based on such information, the court should find that Plaintiff is unable to pay the costs of commencing this action.
II. Complaint Should Be Dismissed
Plaintiff appears to allege a variety of constitutional and statutory violations seemingly related to a three-day stay at a Providence Hospital and refusal of care at a later appointment with a cardiac specialist. Plaintiff asserts both diversity and federal question jurisdiction. Plaintiff identifies various statutory and constitutional provisions as the basis for this court's federal question jurisdiction. (Compl. at 4.) Plaintiff contends he was falsely imprisoned, suffered false arrest, his right to privacy was violated, and he appears to seek his medical records. (Id.) In the statement of his claim, Plaintiff contends that his rights were ignored, that he was taunted, ridiculed, slandered, searched and seized, and that he had mercenaries set upon him. (Id. at 5.) Plaintiff seeks his medical records, doctors' notes, recordings, and a restraining order against all security guards. Plaintiff seeks damages in an amount of $100 million, plus punitive damages. (Id. at 6.)
In his supporting papers, Plaintiff contends that he awoke to find himself at the Providence St. Vincent Medical Center in Portland, Oregon. (Compl. Ex. 1, ECF No. 1-1 at 4.) He was informed by physicians that he suffered a cardiac event. He was eventually discharged and returned to his truck to sleep. (Id.) Plaintiff contends that awoke to "some kind of event," could not catch his breath, and presented to the emergency room. (Id.) While being admitted, security officers were behind the desk and could hear his private information. (Id.) Plaintiff's blood pressure was very high, he was given intravenous fluids, and eventually discharged. Plaintiff again returned to his truck. Plaintiff contends that while walking to his truck, he was grabbed from behind by a security officer, handcuffed, taken to an office, and forced to sit in a wheelchair while being questioned by a doctor and a security officer under duress. (Id.) Plaintiff was released when a Washington County sheriff's officer arrived.
Plaintiff also alleges that on May 12, 2020, he arrived for an appointment with a cardiac specialist, but was escorted off the property by security guards for trespassing. (Id. at 6.) Plaintiff contends that Providence's statement of values is false advertising. (Id. at 11.) Plaintiff includes a form dated October 31, 2019, that he was leaving a Providence Health System facility against medical advice, indicating that he refused to sign the form and was forced out of the facility. Finally, Plaintiff includes a letter from Edyth R. Lee-Barnes, M.D., providing that Plaintiff was under her care at Providence St. Vincent Medical Center from March 8 to March 11, 2020, and that Plaintiff experienced "at least three myocardial infarctions (heart attacks) which have resulted in significant reduction in his heart function." (Id. at 7.) Plaintiff denies that Dr. Barnes is his primary physician.
A. Diversity Jurisdiction
Federal courts are courts of limited jurisdiction, "possessing only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal subject matter jurisdiction may be based upon the presence of a federal question or on diversity of citizenship. 28 U.S.C. §§ 1331, 1332. To invoke federal question jurisdiction, a plaintiff must plead that the defendant has violated some constitutional or statutory provision. To establish diversity jurisdiction, a plaintiff must allege that he or she is a citizen of one state, that all defendants are citizens of other states, and that the damages are more than $75,000. 28 U.S.C. § 1332. A court has diversity jurisdiction only when a plaintiff "has citizenship which is diverse from that of every defendant." See Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 722 (9th Cir. 2008). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); FED. R. CIV. P. 12(b)(1). The court must dismiss any case over which it lacks subject matter jurisdiction. FED. R. CIV. P. 12(h)(3).
Plaintiff's Complaint makes no affirmative allegations of citizenship for any party. Based on Plaintiff's address, the court assumes he is an Oregon citizen. Plaintiff contends that defendant Providence Health Services is a Renton, Washington organization. (Compl. at 2.) Plaintiff also identifies as defendants: "Unknown Security Guards;" Jean Young Rim, M.D.; Nathaniel Crumet, M.D.; Kashif Sherwani, M.D.; Unknown Doctors, Nurses and Employees; and an Unknown Social Worker. Plaintiff identifies the address for each of these defendants as that of Providence St. Vincent Medical Center in Portland, Oregon. Liberally interpreting the Complaint, Plaintiff appears to contend that the additional defendants work at Providence St. Vincent Medical Center and were involved in the events described above. There are no allegations to suggest these additional defendants are not Oregon citizens. Thus, as currently pleaded, the Complaint fails to establish diversity jurisdiction. See Gale v. SAIF Corp., Case No. 3:18-cv-00707-AC, 2019 WL 2488719, at *7 (D. Or. Mar. 15, 2019), adopted by 2019 WL 2103273 at *1 (May 11, 2019) (holding parties were not diverse and dismissing action).
B. Federal Question Jurisdiction
Plaintiff asserts federal question jurisdiction pursuant to the following: 18 U.S.C. § 242; 18 U.S.C. § 287; the First, Fourth, Thirteenth, and Fourteenth Amendments of the Constitution; 42 U.S.C. § 1983; the Health Care Quality Improvement Act ("HCQIA"); and the Administrative Procedures Act ("APA"). Plaintiff asserts that his right of privacy, his due process and equal protection rights were violated, and that he was falsely arrested and imprisoned. Finally, Plaintiff asserts that Defendants engaged in false advertising and have violated their obligation of contracts. (Compl. at 4.)
Plaintiff's claims suffer from a lack of factual development. Plaintiff's Complaint makes sweeping factual assertions against several defendants with little attempt to connect the allegations to particular statutory provisions or claims, and he fails to identify specific individuals involved in the alleged actions. Viewing the Complaint in the light most favorable to Plaintiff, the court attempts to discern whether, as currently alleged, Plaintiff states a claim for relief, and if any deficiencies may be cured by amendment.
1. 18 U.S.C. §242; 18 U.S.C. §287
The Complaint fails to state a claim under 18 U.S.C. § 242, which is a criminal statute that does not give rise to civil liability. Allen v. Gold County Casino, 464 F.3d 1044, 1048 (9th Cir. 2006); Welby v. Senior Deputy Fairchild, Case No. 6:20-cv-00347-AA, 2020 WL 1150812, at *2 (D. Or. Mar. 9, 2020); Ouma v. Asher, Case No. 3:18-cv-00888-AC, 2019 WL 2529556. *3 (D. Or. May 30, 2019) (holding that 18 U.S.C. § 242 is a criminal statute, does not provide for a civil cause of action, and fails to provide federal question jurisdiction).
Plaintiff also asserts federal question jurisdiction pursuant to 18 U.S.C. § 287, which is also a criminal statute that does not give rise to civil liability. Additionally, § 287 applies to false claims made against the federal government. Plaintiff fails to state a cognizable claim under § 287. See Weldon v. Dyer, Case No. 1:13-cv-00540-LJO-SAB, 2013 WL 2244527, at *8 (E.D. Cal. May 21, 2013) (dismissing claim under 18 U.S.C. § 287 because it is a criminal statute). Because Plaintiff's claims asserted under these statutes cannot be cured by amendment, the court recommends his claims pursuant to 18 U.S.C. §§ 287 and 242 be dismissed with prejudice.
2. constitutional violations and 42 U.S.C. § 1983
Plaintiff alleges that defendants violated various federal constitutional rights. The federal Constitution does not provide a specific cause of action. Federal constitutional violations must be pleaded pursuant to 42 U.S.C. § 1983. "To state a claim under § 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." Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48, (1988)).
Broadly viewing Plaintiff's allegations, Plaintiff's Complaint fails to state a First Amendment violation. Plaintiff has not alleged facts demonstrating that Defendants violated his religious rights, right to freedom of speech, right to petition the government, or any other right under the First Amendment. Likewise, Plaintiff has failed to assert any facts specifying how Defendants violated the Thirteenth Amendment.
Plaintiff has provided a few more allegations surrounding his alleged Fourth Amendment violation. The Fourth Amendment protects against unreasonable searches and seizures. U.S. CONST. amend. IV. Here, Plaintiff appears to allege that he was falsely arrested and imprisoned, then admitted to the hospital, later discharged, then handcuffed by security officers and questioned by a physician. Yet, the Complaint does not contain specific allegations as to how the Defendants' actions were unreasonable under the circumstances and how they caused the alleged constitutional violations.
Plaintiff also asserts that his right of privacy was violated. Broadly construing this allegation, the court presumes Plaintiff is contending that his right of privacy contained in the Fourteenth Amendment was violated when security officers listened to him provide information to hospital workers and were positioned behind the desk and able to view his medical records. The constitutional right of privacy includes the interest in avoiding disclosure of personal matters in some instances. Davis v. Bucher, 853 F.2d 718, 719 (9th Cir. 1988). Plaintiff, however, has failed to articulate that the information disclosed was a constitutionally protected privacy interest. Similarly, Plaintiff cites the due process and equal protection clauses, but fails to specifically allege which Defendant was personally involved in his alleged constitutional deprivations.
Setting aside whether Plaintiff has adequately alleged that his constitutional rights were violated by the activities described, his Complaint fails to allege any form of government action. Generally, private parties are not acting under color of state law. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). "[A] litigant may seek damages under 42 U.S.C. § 1983 from a private party based on the violation of a constitutional right" if the plaintiff can show that "the private party engaged in state action under color of state law[.]" Brunette v. Humane Soc'y of Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002). "[S]tate action may be found if, though only if, there is 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. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). "To prove a conspiracy between the state and private parties under section 1983, [the plaintiff] must show an agreement or meeting of the minds to violate constitutional rights." United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989).
Here, Defendants identified in the Complaint all appear to work for Providence St. Vincent Medical Center, not any government entity. Plaintiff has failed to allege any facts that Defendants were acting under color of state law, or that they conspired with government actors to violate Plaintiff's constitutional rights. Thus, Plaintiff fails to state a claim under § 1983, and these claims must be dismissed.
3. HCQIA
Plaintiff identifies the HCQIA as a basis for this court's jurisdiction. See generally 42 U.S.C. § 11101-11152. The HCQIA was enacted by Congress to address at a national level the movement of incompetent physicians from state to state by providing for "effective professional peer review." Williams v. Univ. Med. Ctr. of S. Nevada, 688 F. Supp. 2d 1111, 1133 (D. Nev. 2010) (citing 42 U.S.C. § 11101(3)); see also Mir v. Kirchmeyer, Case No. 12-cv-2340-GPC-DHB, 2016 WL 2745338, at *18-19 (S.D. Cal. May 11, 2016) (discussing the peer review process). The HCQIA provides a reporting requirement and provides immunity from liability for reporting information to the peer review bodies. Chang v. Rehab. Hosp. of the Pacific, Civ. No. 19-00383 JMS-KJM, 2019 WL 3759437, at *4 (D. Haw. July 31, 2019). Plaintiff's Complaint fails to allege any facts establishing a cause of action pursuant to the statute, or how the statute is relevant to his current claims in any manner. Accordingly, the court finds that the HCQIA fails to provide a basis for the court's jurisdiction.
4. Health Insurance Portability and Accountability Act ("HIPPA")
Plaintiff appears to contend that his private medical information was revealed to the security guards against his wishes, and that his right of privacy has been violated. To the extent that Plaintiff is referring to HIPPA, he fails to state a claim. HIPPA does not provide a private right of action to persons who believe their HIPPA rights have been violated. United States v. Streich, 560 F.3d 926, 935 (9th Cir. 2009) ("HIPPA does not provide any private right of action."); Webb v. Smart Documents Sols., LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (providing that "HIPAA itself does not provide for a private right of action" in federal court).
5. APA
Plaintiff asserts federal question jurisdiction based on the APA. The APA provides for judicial review of federal administrative agency action. 5 U.S.C. § 702. However, by its terms the APA applies only to federal agencies, and courts have recognized that "nothing in the APA authorizes claims against nonfederal entities." Karst Envtl. Educ. and Prot., Inc. v. EPA, 475 F.3d 1291, 1298 (D.C. Cir. 2007); see 5 U.S.C. §§ 701(b)(1), 702. Defendants are not federal agencies, and therefore, Plaintiff does state a claim under the APA.
6. false advertising
Plaintiff broadly alleges "false advertising" as a basis for federal jurisdiction. Plaintiff does not identify either a federal or state statute under which he is attempting to proceed. Plaintiff attaches to his Complaint a page that appears to be printed from Providence's website and includes a statement of Defendant's "Values." Yet, Plaintiff's Complaint does not allege how the "Values" constitute advertising, their falsity, or how he was harmed. Thus, Plaintiff fails to allege a claim for false advertising. Bromfield v. HSBC Bank Nev., Case No. 3:13-cv-462-SI, 2013 WL 3929846, at *6 (D. Or. July 29, 2013) (dismissing state law claim of false advertising).
7. breach of contract
To state a claim for breach of contract under Oregon law, a plaintiff must allege the existence of a contract, its relevant terms, his full performance and lack of breach, and the defendant's breach causing him damages. Slover v. Or. State Bd. of Clinical Soc. Workers, 144 Or. App. 565, 570 (1996). Plaintiff fails to allege the existence of a contract between himself and Defendants, the terms of that contract, how that contract was breached, his full performance, and how he was damaged. Plaintiff's bare assertion of a contract and its breach simply fails to adequately state a claim for relief and must be dismissed.
C. Summary
In sum, Plaintiff's Complaint does not establish diversity and his allegations fail to support viable claims that would support federal question jurisdiction. The Complaint fails to state a claim under 18 U.S.C. §§ 242 and 287, 42 U.S.C. § 1983 and various constitutional provisions, HCQIA, HIPPA, the APA, false advertising, and breach of contract. Additionally, it appears that Plaintiff and some of the Defendants are citizens of the Oregon, and that diversity jurisdiction is lacking. Accordingly, Plaintiff's Complaint as currently alleged must be dismissed.
III. Motion for Injunctive Relief/Restraining Order
As noted above, Plaintiff's complaint fails to state a claim. To the extent his request for a restraining order could be construed as a request for injunctive relief, it must be denied. Plaintiff has not demonstrated a likelihood of success on the merits that could support the grant of preliminary injunctive relief. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). At a minimum, Plaintiff must establish "serious questions going to the merits" of his claims. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2010). Plaintiff has failed to do so, and his request for a restraining order must be denied.
Conclusion
Based on the foregoing, the Court recommends that Plaintiff's Application to Proceed in Forma Pauperis (ECF No. 2) be GRANTED and that Plaintiff's Complaint (ECF No. 1) be dismissed as follows: Plaintiff's claims under 18 U.S.C. §§ 242 and 287 be DISMISSED WITH PREJUDICE, and Plaintiff's remaining claims be DISMISSED WITHOUT PREJUDICE and with leave to amend. The court recommends that Plaintiff be provided thirty days to file an amended complaint. The Clerk's Office should be directed to withhold issuance of any summons until further order of the Court.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
DATED this 11th day of June, 2020.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge