Awad v. Dr. Birbenk

Opinion

1 2 5 6 ABDULHADI NAIM AWAD, Case No. 22-cv-00665-WHO (PR) 7 Plaintiff, v. ORDER OF DISMISSAL

10 Defendant. 11 2 Plaintiff Abdulhadi Naim Awad’s 42 U.S.C. § 1983 suit against Dr. Birbenk, a 5 13 || physician who operated on Awad’s hand and the sole remaining defendant in this action, S 14 || must be dismissed because Birbenk is a private, not a state, actor. According to Awad’s 3 15 || allegations, the operation occurred while Birbenk was employed at Queen of the Valley a 16 || Hospital, which is a private Catholic hospital. (Addendum to Complaint, Dkt. No. 12 at = 17 2.) Because Birbenk was a private, not a state, actor he cannot be held liable under section 18 1983. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (a private individual does not act 19 under color of state law, an essential element of a section 1983 action). 20 Accordingly, this federal civil rights action is DISMISSED without prejudice to 21 Awad pursuing his claims in state court. The Clerk shall enter judgment in favor of 22 defendant, and close the file. 24 Dated: June 2, 2023 YV.Qe 2 AM H. ORRICK 26 United States District Judge 27 28