Butler v. Bigelow

• Court: District Court, W.D. Washington
• Decided: November 7, 2024
• Docket: 2:24-cv-00120
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 DAVID BUTLER, Case No. 2:24-cv-00120-TL-TLF 7 Plaintiff, v. ORDER TO SHOW CAUSE 8 SUZANE BIGELOW, et al., 9 Defendants. 10

11 Plaintiff David Butler is a prisoner incarcerated at the Monroe Correctional 12 Complex (MCC) and proceeds pro se and in forma pauperis in this 42 U.S.C. 1983 civil 13 rights action1. In Plaintiff’s complaint, he alleges was admitted to Providence Regional 14 Medical Center for ingesting unpassable items in February 2022. Dkt. 8 at 2. Upon 15 admission, he alleges the hospital, Bigelow and King provided Plaintiff with insufficient 16 medical treatment and berated Plaintiff for ingesting items. Due to their actions or lack 17 of actions, Plaintiff alleges he underwent invasive surgery. Id. at 6. 18 Under the Prison Litigation Reform Act of 1996, the Court must screen 19 complaints brought by prisoners seeking relief against a governmental entity or officer 20 or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss 21 the complaint, or any portion of the complaint, if the complaint – (1) is frivolous, 22

23 1 The Court directed service of Plaintiff’s amended complaint. Dkt. 10. The Court, inadvertently, did not include defendants Providence Regional Medical Center, the “on call provider” at MCC, or the R.N. at 24 MCC who “handled the phone call with Dr. Suzanne Bigelow.” Dkt. 6 at 2; see also Dkt. 10. 1 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks 2 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 3 1915A(b). See also 28 U.S.C. § 1915 (e)(2)(B) (providing for dismissal of any civil case 4 on these same grounds despite the payment of a filing fee); Barren v. Harrington, 152

5 F.3d 1193, 1194 (9th Cir. 1998) (“The statutory authority is clear: “the court shall 6 dismiss the case at any time if the court determines that ... the action or appeal ... fails 7 to state a claim on which relief may be granted.”) (citing § 1915(e)(2)(B)(ii); emphasis 8 removed). Dismissal on these grounds counts as a “strike” under 28 U.S.C. § 1915(g). 9 In this case, Plaintiff seeks to pursue a claim under 42 U.S.C. § 1983. To state a 10 § 1983 claim, a plaintiff must show (1) he suffered a violation of rights protected by the 11 Constitution or created by federal statute, and (2) the violation was proximately caused 12 by a person acting under color of state or federal law. West v. Atkins, 487 U.S. 42, 48, 13 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th 14 Cir. 1991). Plaintiff must provide more than conclusory allegations; he must set forth

15 specific, plausible facts to support his claims. Ashcroft v. Iqbal, 556 U.S. 662, 678-83, 16 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). 17 Section 1983 is reserved for constitutional and statutory violations by persons 18 acting under color of state law. 42 U.S.C. § 1983. Generally, private persons and 19 entities do not act under color of state law and are therefore not liable under § 1983. 20 See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 21 L.Ed.2d 130 (1999) (“[Section] 1983 excludes from its reach merely private conduct, no 22 matter how discriminatory or wrong.”) (internal quotation marks and quoted sources 23

24 1 omitted); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (“[P]rivate parties are not 2 generally acting under color of state law.”). 3 A private party may be considered a state actor under § 1983 if they meet one of 4 the following interrelated tests:

5 “(1) the public function test, (2) the state compulsion test, (3) the nexus test and 6 (4) the joint action test.” O’ Handley v. Weber, 62 F.4th 1145, 1155-1156 (9th Cir. 2023), 7 cert. denied, __ S.Ct. __, 2024 WL 3259696 (2024). If “there is ‘pervasive entwinement 8 of public institutions and public officials in [the private actor’s] composition and 9 workings,’” or if “government officials have ‘exercised coercive power or [have] provided 10 such significant encouragement, either overt or covert, that the choice must in law be 11 deemed to be that of the State’”, then the nexus is sufficiently close and private action 12 may be treated as the government entity’s action. O’Handley, at 1157 (citations 13 omitted). 14 Also, a private person may be subject to a § 1983 suit if they “conspired” with

15 state officials. Price, 939 F.2d at 707-08. To prove a conspiracy between the state and a 16 private person, a plaintiff “must show an agreement or meeting of the minds to violate 17 constitutional rights.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 18 1539, 1540-41 (9th Cir. 1989) (en banc) (internal quotation marks and quoted sources 19 omitted). Although the Court liberally construes pro se pleadings, allegations of 20 conspiracy are subject to a heightened pleading requirement, and the complaint must 21 contain more than conclusory allegations. See Price, 939 F.2d at 707-09. 22 In this case, Plaintiff names two private individuals, Dr. Suzane Bigelow and Dr. 23 King, and a private entity, Providence Regional Medical Center, as Defendants. Yet

24 1 does not allege or provide any facts supporting an allegation that the Defendants met 2 any of the four tests described above, or conspired with state officials to violate 3 Plaintiff's constitutional rights or acted under color of state law. 4 Plaintiff further names the “on call provider” at MCC, and the R.N. at MCC who

5 “handled the phone call with Dr. Suzanne Bigelow” as defendants. Although a plaintiff 6 may be given an opportunity after filing a lawsuit to discover the identity of unknown 7 defendants through discovery, the use of unidentified defendants is problematic 8 because those persons cannot be served with process until they are identified by their 9 real names. If Plaintiff wishes to pursue this Section1983 action against the defendants 10 identified as the “on call provider” and the R.N at MCC, he must provide their names. 11 Plaintiff’s amended complaint, in sum, fails to identify a viable defendant. If a pro 12 se litigant's complaint fails to state a claim upon which relief may be granted, the Court 13 generally grants the opportunity to amend the complaint. Lucas v. Dep't of Corrections, 14 66 F.3d 245, 248 (9th Cir. 1995). Plaintiff may file an amended complaint or show cause

15 why his complaint sufficient as is by November 29, 2024. 16 17 Dated this 7th day of November, 2024 A 18 Theresa L. Fricke 19 United States Magistrate Judge

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