1 KM 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Patrick McClure, No. CV-23-08133-PCT-JAT (ASB) 10 Plaintiff, 11 v. ORDER 12 Lewis Citrenbaum, et al., 13 Defendants.
15 Self-represented Plaintiff John Patrick McClure, who is not incarcerated, filed a 16 civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In 17 District Court Without Prepaying Fees and Costs. In an October 6, 2023 Order, the Court 18 granted the Application to Proceed and dismissed the Complaint with leave to amend. 19 Pending before the Court are Plaintiff’s First Amended Complaint (Doc. 10) and Motion 20 for Certified Mail (Doc. 12). The Court will dismiss the First Amended Complaint and 21 this action and deny the Motion. 22 I. Statutory Screening of In Forma Pauperis Complaints 23 Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to review complaints 24 brought by all plaintiffs who are proceeding in forma pauperis and must dismiss a 25 complaint or portion thereof if the plaintiff has raised claims that are legally frivolous or 26 malicious, fail to state a claim upon which relief may be granted, or seek monetary relief 27 from a defendant who is immune from such relief. 28 A pleading must contain a “short and plain statement of the claim showing that the 1 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 2 not demand detailed factual allegations, “it demands more than an unadorned, the- 3 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 4 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Id. 6 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 7 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 8 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 9 that allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 12 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 13 allegations may be consistent with a constitutional claim, a court must assess whether there 14 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 15 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 16 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 17 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less stringent 18 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 19 U.S. 89, 94 (2007) (per curiam)). 20 If the Court determines that a pleading could be cured by the allegation of other 21 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 22 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 23 II. First Amended Complaint 24 In his four-count First Amended Complaint, Plaintiff sues Dr. Elizabeth Hill, St. 25 Joseph Hospital’s Intensive Care Unit (ICU) staff, and Prescott Valley Police Detectives 26 Hohrien and Grant. Plaintiff seeks monetary damages. 27 In Counts One and Two, Plaintiff raises claims for “medical malpractice” and 28 alleges violations of his Fourteenth Amendment rights. In Count One, he claims that on 1 June 1, 2023, two weeks after being released from the ICU for treatment of stab wounds, 2 he saw Defendant Hill and told her he was worried about infection from the knife used to 3 stab him. He saw Defendant Hill again two weeks later and she “refused antibiotics for 4 the second time,” even though the infection had spread. During a psychiatric exam in July, 5 the doctor told him to go to the hospital. Plaintiff went to the emergency room and was 6 given antibiotics. Plaintiff claims his neck and mouth are scarred from the infection and 7 he suffered mental anguish. 8 In Count Two, he alleges that on May 15, 2023, he was stabbed by an “alleged 9 federal informant” and taken to the Prescott Valley Emergency Medical Center which then 10 transferred him to St. Joseph’s Hospital. Plaintiff received “approximately 2 feet of staples 11 from [his] neck across [his] chest and down the right side of [his] arm.” When he awoke 12 from surgery, the nurse told him “to get ready to leave.” Plaintiff asked “why they were 13 doing this and [the nurse] would not respond.” Plaintiff asked for antibiotics and claims 14 the nurse said “no.” Plaintiff was placed in a cab and sent “back to the crime scene.” He 15 states he was bedridden for four or five days an developed an infection. Plaintiff claims 16 this was medical malpractice and “mental abuse at its highest form.” 17 In Count Three, Plaintiff claims his Fourth and Fourteenth Amendment rights were 18 violated by police misconduct. After the May 15, 2023 stabbing, Defendant Hohrien 19 refused to give Plaintiff the name of the person who stabbed him or return Plaintiff’s phone 20 calls. Plaintiff states he filed multiple “cases” with the Department of Justice “over this 21 Prescott Valley Police misconduct and refusal to arrest [the attacker].” Plaintiff contends 22 Defendant Hohrien refused to interview him or “take part in a case that [Plaintiff] 23 constru[ed] as attempted murder and a possible cover up for the federal government and 24 suspect.” 25 In Count Four, Plaintiff alleges his Fourth and Fourteenth Amendment rights were 26 violated when Defendant Grant refused to give Plaintiff the name of his attacker or any 27 other information. Plaintiff informed Grant that the attacker “is a suspect[ed] federal FBI 28 informant sent to cause serious injury or death to [Plaintiff] by setting [him] up with the 1 neighbors.” Plaintiff claims Defendant Grant “refused to help and referred [Plaintiff] to 2 Lewis Citrenbaum who protect[ed] [the attacker] and the Prescott Valley Police 3 Department.” 4 III. Failure to State a Claim 5 A. Defendants Hill and St. Joseph’s Hospital ICU Staff 6 “Like the state-action requirement of the Fourteenth Amendment, the under-color- 7 of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter 8 how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 9 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). “[S]tate action requires 10 both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege 11 created by the State or by a rule of conduct imposed by the State or by a person for whom 12 the State is responsible,’ and that ‘the party charged with the deprivation must be a person 13 who may fairly be said to be a state actor.’” Id. (quoting Lugar v. Edmondson Oil Co., 457 14 U.S. 922, 937 (1982)). 15 Defendants Hill and St. Joseph’s Hospital ICU Staff are private parties, not state 16 actors.
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1 KM 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Patrick McClure, No. CV-23-08133-PCT-JAT (ASB) 10 Plaintiff, 11 v. ORDER 12 Lewis Citrenbaum, et al., 13 Defendants.
15 Self-represented Plaintiff John Patrick McClure, who is not incarcerated, filed a 16 civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In 17 District Court Without Prepaying Fees and Costs. In an October 6, 2023 Order, the Court 18 granted the Application to Proceed and dismissed the Complaint with leave to amend. 19 Pending before the Court are Plaintiff’s First Amended Complaint (Doc. 10) and Motion 20 for Certified Mail (Doc. 12). The Court will dismiss the First Amended Complaint and 21 this action and deny the Motion. 22 I. Statutory Screening of In Forma Pauperis Complaints 23 Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to review complaints 24 brought by all plaintiffs who are proceeding in forma pauperis and must dismiss a 25 complaint or portion thereof if the plaintiff has raised claims that are legally frivolous or 26 malicious, fail to state a claim upon which relief may be granted, or seek monetary relief 27 from a defendant who is immune from such relief. 28 A pleading must contain a “short and plain statement of the claim showing that the 1 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 2 not demand detailed factual allegations, “it demands more than an unadorned, the- 3 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 4 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Id. 6 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 7 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 8 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 9 that allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 12 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 13 allegations may be consistent with a constitutional claim, a court must assess whether there 14 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 15 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 16 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 17 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less stringent 18 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 19 U.S. 89, 94 (2007) (per curiam)). 20 If the Court determines that a pleading could be cured by the allegation of other 21 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 22 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 23 II. First Amended Complaint 24 In his four-count First Amended Complaint, Plaintiff sues Dr. Elizabeth Hill, St. 25 Joseph Hospital’s Intensive Care Unit (ICU) staff, and Prescott Valley Police Detectives 26 Hohrien and Grant. Plaintiff seeks monetary damages. 27 In Counts One and Two, Plaintiff raises claims for “medical malpractice” and 28 alleges violations of his Fourteenth Amendment rights. In Count One, he claims that on 1 June 1, 2023, two weeks after being released from the ICU for treatment of stab wounds, 2 he saw Defendant Hill and told her he was worried about infection from the knife used to 3 stab him. He saw Defendant Hill again two weeks later and she “refused antibiotics for 4 the second time,” even though the infection had spread. During a psychiatric exam in July, 5 the doctor told him to go to the hospital. Plaintiff went to the emergency room and was 6 given antibiotics. Plaintiff claims his neck and mouth are scarred from the infection and 7 he suffered mental anguish. 8 In Count Two, he alleges that on May 15, 2023, he was stabbed by an “alleged 9 federal informant” and taken to the Prescott Valley Emergency Medical Center which then 10 transferred him to St. Joseph’s Hospital. Plaintiff received “approximately 2 feet of staples 11 from [his] neck across [his] chest and down the right side of [his] arm.” When he awoke 12 from surgery, the nurse told him “to get ready to leave.” Plaintiff asked “why they were 13 doing this and [the nurse] would not respond.” Plaintiff asked for antibiotics and claims 14 the nurse said “no.” Plaintiff was placed in a cab and sent “back to the crime scene.” He 15 states he was bedridden for four or five days an developed an infection. Plaintiff claims 16 this was medical malpractice and “mental abuse at its highest form.” 17 In Count Three, Plaintiff claims his Fourth and Fourteenth Amendment rights were 18 violated by police misconduct. After the May 15, 2023 stabbing, Defendant Hohrien 19 refused to give Plaintiff the name of the person who stabbed him or return Plaintiff’s phone 20 calls. Plaintiff states he filed multiple “cases” with the Department of Justice “over this 21 Prescott Valley Police misconduct and refusal to arrest [the attacker].” Plaintiff contends 22 Defendant Hohrien refused to interview him or “take part in a case that [Plaintiff] 23 constru[ed] as attempted murder and a possible cover up for the federal government and 24 suspect.” 25 In Count Four, Plaintiff alleges his Fourth and Fourteenth Amendment rights were 26 violated when Defendant Grant refused to give Plaintiff the name of his attacker or any 27 other information. Plaintiff informed Grant that the attacker “is a suspect[ed] federal FBI 28 informant sent to cause serious injury or death to [Plaintiff] by setting [him] up with the 1 neighbors.” Plaintiff claims Defendant Grant “refused to help and referred [Plaintiff] to 2 Lewis Citrenbaum who protect[ed] [the attacker] and the Prescott Valley Police 3 Department.” 4 III. Failure to State a Claim 5 A. Defendants Hill and St. Joseph’s Hospital ICU Staff 6 “Like the state-action requirement of the Fourteenth Amendment, the under-color- 7 of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter 8 how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 9 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). “[S]tate action requires 10 both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege 11 created by the State or by a rule of conduct imposed by the State or by a person for whom 12 the State is responsible,’ and that ‘the party charged with the deprivation must be a person 13 who may fairly be said to be a state actor.’” Id. (quoting Lugar v. Edmondson Oil Co., 457 14 U.S. 922, 937 (1982)). 15 Defendants Hill and St. Joseph’s Hospital ICU Staff are private parties, not state 16 actors. Moreover, although private parties who are jointly engaged with state officials in 17 the challenged action are acting under color of law, Collins v. Womancare, 878 F.2d 1145, 18 1154 (9th Cir. 1989), Plaintiff has stated nothing in his First Amended Complaint to 19 suggest that these Defendants were jointly engaged with state officials in the challenged 20 action. Accordingly, the Court will dismiss Defendants Hill, St. Joseph’s Hospital ICU 21 Staff, and Counts One and Two. 22 B. Defendants Hohrien and Grant 23 To the extent Plaintiff alleges these Defendants refused to provide him with the 24 name of his attacker, he has not alleged how this violated his constitutional rights. Further, 25 in his original Complaint, Plaintiff states he received this information two weeks after the 26 attack via a mailed letter. 27 To the extent Plaintiff claims Defendants Hohrien and Grant violated his due 28 process rights by failing to investigate his claims or arrest his attacker, he fails to state a 1 claim. The Due Process Clause generally does not create an obligation on the state to 2 protect individuals from injury to life, liberty, or property caused by the acts of private 3 parties. DeShaney v. Winnebago County, 489 U.S. 189, 195-97 (1989). “The police have 4 no affirmative obligation to investigate a crime in a particular way or to protect one citizen 5 from another even when one citizen deprives the other of liberty or property.” Gini v. Las 6 Vegas Metropolitan Police Dept., 40 F.3d 1041, 1045 (9th Cir. 1994) (citing DeShaney, 7 489 U.S. at 195-96). Accordingly, the Court will dismiss Defendants Hohrien and Counts 8 Three and Four. 9 IV. Motion 10 In his Motion for Certified mail, Plaintiff asks that the Court mail copies of its orders 11 to him via certified mail. The Court does not send orders by certified mail and will deny 12 the Motion. 13 V. Dismissal without Leave to Amend 14 Because Plaintiff has failed to state a claim against any named Defendant in the First 15 Amended Complaint, the Court will dismiss the First Amended Complaint. “Leave to 16 amend need not be given if a complaint, as amended, is subject to dismissal.” Moore v. 17 Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion 18 to deny leave to amend is particularly broad where Plaintiff has previously been permitted 19 to amend his complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 20 (9th Cir. 1996). Repeated failure to cure deficiencies is one of the factors to be considered 21 in deciding whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 22 Plaintiff has made multiple efforts at crafting a viable complaint. The Court finds 23 that further opportunities to amend would be futile. Therefore, the Court, in its discretion, 24 will dismiss Plaintiff’s First Amended Complaint without leave to amend. 25 IT IS ORDERED: 26 (1) The First Amended Complaint (Doc. 10) is dismissed for failure to state a 27 claim pursuant to 28 U.S.C. § 1915(e)(2)(B), and the Clerk of Court must enter judgment 28 accordingly. 1 (2) Plaintiff's Motion for Certified Mail (Doc. 12) is denied. 2 (3) | The Clerk of Court must make an entry on the docket stating that the 3 | dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 4 (4) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 6| of this decision would be taken in good faith and finds Plaintiff may appeal in forma 7 | pauperis. 8 Dated this 2nd day of February, 2024. 9 10 a 3 C 11 2 _ James A. Teil Org Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28