1 2 3 4 5 6 7 10 11 KET T. HAWKINS, Jr, et al., Case No. 2:23-cv-0034-KJM-JDP (PS) 12 Plaintiffs, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiffs Ket Hawkins, Jr., and Lajuana L. Thompson, proceeding individually and as co- 18 representatives of the estate of their deceased father, Ket Hawkins, Sr. (the “decedent”), allege 19 that defendants Kaiser Permanente Sacramento (“Kaiser”), Sacramento Mather VA Medical 20 Center, McKinley Park Care Center (“McKinley”), and Gramercy Court Skilled Nursing 21 (“Gramercy”) violated 42 U.S.C. § 1983 and certain California laws by failing to provide the 22 decedent emergency medical care, resulting in his premature death. ECF No. 15. 23 Screening Order 24 I. Screening and Pleading Requirements 25 A federal court must screen the complaint of any claimant seeking permission to proceed 26 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 27 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 28 1 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 2 relief. Id. 3 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 4 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 5 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 6 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 8 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 9 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 10 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 11 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 12 n.2 (9th Cir. 2006) (en banc) (citations omitted). 13 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 14 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 15 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 16 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 17 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 18 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 19 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 20 II. Analysis 21 According to the second amended complaint, plaintiffs Ket T. Hawkins Jr. and LaJuana L. 22 Thompson bring this action on behalf of themselves and as co-representatives of the estate of Ket 23 T. Hawkins Sr. Defendants include Kaiser Permanente Sacramento, Sacramento Mather Medical 24 Center, McKinley Park Care Organization, Gramercy Court - Skilled Nursing, and unnamed 25 employees. 26 Plaintiffs alleges that that on December 6, 2019, their father, Ket Hawkins Sr. (“the 27 decedent”) was taken to Kaiser South Emergency Room and was subsequently admitted to the 28 hospital. ECF No. 15 at 3. Although test results confirmed a urinary tract infection (“UTI”), the 1 decedent was discharged on December 8, 2019, without having received treatment for the UTI. 2 Id. The following day, the decedent was readmitted to Kaiser South, where it was confirmed that 3 he had a UTI, which was treated with antibiotics. Id. at 4. Over the next several weeks, he 4 transferred multiple times between hospitals and nursing facilities, leading to further health 5 complications, including pneumonia and severe sepsis. Id. at 9, 17. On February 1, 2020, the 6 decedent passed away at Kaiser Hospital-Morse. Id. at 8. 7 Plaintiffs allege that defendants violated the Emergency Medical Treatment and Active 8 Labor Act (“EMTALA”) by failing to stabilize the decedent before discharging him. Id. at 13-14. 9 They also allege claims for violation of the Eighth and Fourteenth Amendments, and state law 10 claims for negligence. Id. at 10-12, 14-16. 11 As with plaintiffs’ prior complaints, the second amended complaint fails to state Eighth 12 and Fourteenth Amendment claims under 42 U.S.C. § 1983 against defendants Kaiser, McKinley, 13 and Gramercy. To state a section 1983 claim, a plaintiff must show that a defendant acting under 14 color of state law caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. 15 § 1983; Soo Park v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). “The traditional definition of 16 acting under color of state law requires that the defendant in a § 1983 action have exercised 17 power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed 18 with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. 19 Classic, 313 U.S. 299, 326 (1941)). Although plaintiffs repeatedly label defendants “state 20 actors,” see ECF No. 15 at 3-9, the amended complaint’s bare allegations are insufficient to 21 establish that defendants acted under color of state law. 22 Moreover, private hospitals and nursing homes are generally not considered to be state 23 actors subject to § 1983 liability. See Briley v. California, 564 F.2d 849, 855-856 (9th Cir. 1977) 24 (noting that “private hospitals and physicians have consistently been dismissed from § 1983 25 actions for failing to come within the color of state law requirement”); see also Blum v. Yaretsky, 26 457 U.S. 991, 1002-12 (1982) (concluding that private nursing homes’ decisions to discharge or 27 transfer Medicaid patients did not constitute “state action”); Safari v. Kaiser Found. Health Plan, 28 2012 WL 1669351, at *5 (N.D. Cal. May 11, 2012) (noting that “[i]t is undisputed” that 1 defendant Kaiser Foundation Hospitals is a private entity for purposes of § 1983); Kaiser Found. 2 Hosps. v. Superior Ct., 128 Cal. App. 4th 85, 102 (Cal App. Dist. 3 2005) (“Since [the Kaiser 3 entities] are private institutions, [the terminated physician’s] fair procedure rights . . . arise from 4 [California statutes] and not from the due process clauses of the state and federal Constitutions.”). 5 Plaintiffs’ conclusory allegations that defendants were state actors fail to rebut the presumption 6 that defendants’ conduct is not state action. See Brentwood Acad. v. Tennessee Secondary Sch.
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1 2 3 4 5 6 7 10 11 KET T. HAWKINS, Jr, et al., Case No. 2:23-cv-0034-KJM-JDP (PS) 12 Plaintiffs, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiffs Ket Hawkins, Jr., and Lajuana L. Thompson, proceeding individually and as co- 18 representatives of the estate of their deceased father, Ket Hawkins, Sr. (the “decedent”), allege 19 that defendants Kaiser Permanente Sacramento (“Kaiser”), Sacramento Mather VA Medical 20 Center, McKinley Park Care Center (“McKinley”), and Gramercy Court Skilled Nursing 21 (“Gramercy”) violated 42 U.S.C. § 1983 and certain California laws by failing to provide the 22 decedent emergency medical care, resulting in his premature death. ECF No. 15. 23 Screening Order 24 I. Screening and Pleading Requirements 25 A federal court must screen the complaint of any claimant seeking permission to proceed 26 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 27 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 28 1 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 2 relief. Id. 3 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 4 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 5 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 6 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 8 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 9 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 10 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 11 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 12 n.2 (9th Cir. 2006) (en banc) (citations omitted). 13 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 14 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 15 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 16 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 17 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 18 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 19 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 20 II. Analysis 21 According to the second amended complaint, plaintiffs Ket T. Hawkins Jr. and LaJuana L. 22 Thompson bring this action on behalf of themselves and as co-representatives of the estate of Ket 23 T. Hawkins Sr. Defendants include Kaiser Permanente Sacramento, Sacramento Mather Medical 24 Center, McKinley Park Care Organization, Gramercy Court - Skilled Nursing, and unnamed 25 employees. 26 Plaintiffs alleges that that on December 6, 2019, their father, Ket Hawkins Sr. (“the 27 decedent”) was taken to Kaiser South Emergency Room and was subsequently admitted to the 28 hospital. ECF No. 15 at 3. Although test results confirmed a urinary tract infection (“UTI”), the 1 decedent was discharged on December 8, 2019, without having received treatment for the UTI. 2 Id. The following day, the decedent was readmitted to Kaiser South, where it was confirmed that 3 he had a UTI, which was treated with antibiotics. Id. at 4. Over the next several weeks, he 4 transferred multiple times between hospitals and nursing facilities, leading to further health 5 complications, including pneumonia and severe sepsis. Id. at 9, 17. On February 1, 2020, the 6 decedent passed away at Kaiser Hospital-Morse. Id. at 8. 7 Plaintiffs allege that defendants violated the Emergency Medical Treatment and Active 8 Labor Act (“EMTALA”) by failing to stabilize the decedent before discharging him. Id. at 13-14. 9 They also allege claims for violation of the Eighth and Fourteenth Amendments, and state law 10 claims for negligence. Id. at 10-12, 14-16. 11 As with plaintiffs’ prior complaints, the second amended complaint fails to state Eighth 12 and Fourteenth Amendment claims under 42 U.S.C. § 1983 against defendants Kaiser, McKinley, 13 and Gramercy. To state a section 1983 claim, a plaintiff must show that a defendant acting under 14 color of state law caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. 15 § 1983; Soo Park v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). “The traditional definition of 16 acting under color of state law requires that the defendant in a § 1983 action have exercised 17 power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed 18 with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. 19 Classic, 313 U.S. 299, 326 (1941)). Although plaintiffs repeatedly label defendants “state 20 actors,” see ECF No. 15 at 3-9, the amended complaint’s bare allegations are insufficient to 21 establish that defendants acted under color of state law. 22 Moreover, private hospitals and nursing homes are generally not considered to be state 23 actors subject to § 1983 liability. See Briley v. California, 564 F.2d 849, 855-856 (9th Cir. 1977) 24 (noting that “private hospitals and physicians have consistently been dismissed from § 1983 25 actions for failing to come within the color of state law requirement”); see also Blum v. Yaretsky, 26 457 U.S. 991, 1002-12 (1982) (concluding that private nursing homes’ decisions to discharge or 27 transfer Medicaid patients did not constitute “state action”); Safari v. Kaiser Found. Health Plan, 28 2012 WL 1669351, at *5 (N.D. Cal. May 11, 2012) (noting that “[i]t is undisputed” that 1 defendant Kaiser Foundation Hospitals is a private entity for purposes of § 1983); Kaiser Found. 2 Hosps. v. Superior Ct., 128 Cal. App. 4th 85, 102 (Cal App. Dist. 3 2005) (“Since [the Kaiser 3 entities] are private institutions, [the terminated physician’s] fair procedure rights . . . arise from 4 [California statutes] and not from the due process clauses of the state and federal Constitutions.”). 5 Plaintiffs’ conclusory allegations that defendants were state actors fail to rebut the presumption 6 that defendants’ conduct is not state action. See Brentwood Acad. v. Tennessee Secondary Sch. 7 Athletic Ass’n, 531 U.S. 288, 295 & n.2 (2001) (quotations and citations omitted) (holding that 8 the presumption that conduct by a private entity is not state action may be overcome if “there is 9 such a close nexus between the State and the [private entity’s] challenged action that seemingly 10 private behavior may be fairly treated as that of the State itself”); Florer v. Congregation Pidyon 11 Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011) (“We start with the presumption that conduct 12 by private actors is not state action.”). 13 The second amended complaint also fails to state a § 1983 claim against defendant 14 Sacramento Mather VA Medical Center because a veterans’ hospital is a federal entity. See 15 Lofthus v. Long Beach Veterans Hosp., 214 F. Supp. 3d 908, 915 (C.D. Cal. 2016) (taking 16 judicial notice under Federal Rule of Evidence 201 that defendant Veterans Hospital is part of the 17 United States Department of Veterans Affairs). Claims seeking damages for constitutional 18 violations committed by federal employees may be construed under Bivens v. Six Unknown 19 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Iqbal, 556 U.S. at 675 20 (“[Bivens] is the federal analog to suits brought against state officials under [§ 1983].”). To 21 establish a Bivens claim, the allegations must show that: (1) the challenged action was attributable 22 to an officer acting under color of federal law, and (2) such conduct deprived plaintiff of a right, 23 privilege, or immunity secured by the Constitution. Bivens, 403 U.S. at 389. Relief under Bivens, 24 however, is available only when federal officials are personally liable for the alleged 25 constitutional violation; a Bivens claim cannot be maintained against federal agencies or federal 26 agents sued in their official capacities. Ziglar v. Abbasi, 582 U.S. 120, 140 (2017); Ibrahim v. 27 Dep’t of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008). As such, plaintiffs’ allegations 28 cannot support a Bivens claim because the second amended complaint does not name any 1 individual federal employee as a defendant.1 Accordingly, plaintiffs fail to allege a § 1983 claim. 2 Plaintiffs’ remaining causes of action are state-law tort claims, including a claim of 3 wrongful death and negligence premised on alleged violations of the EMTALA. The EMTALA, 4 also known as the “Patient Anti-Dumping Act,” was enacted by Congress to prohibit hospital 5 emergency rooms from refusing to treat indigent and uninsured patients who were unable to pay 6 for care, or from transferring such patients to other hospitals without first stabilizing them. See 7 Jackson v. E. Bay Hosp., 246 F.3d 1248, 1254 (9th Cir. 2010); 42 U.S.C. § 1395dd. Plaintiffs’ 8 claim that defendants were negligent under California law because they violated the duty of care 9 set forth in the EMTALA by failing to treat the decedent before he was transferred does not raise 10 a substantial federal issue such that federal question jurisdiction exists over their state-law tort 11 claim.2 See Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005) 12 (holding that jurisdiction over federal issues embedded in state-law claims exists if the “state-law 13 claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal 14 forum may entertain without disturbing any congressionally approved balance of federal and state 15 judicial responsibilities”); Bennett v. Sw. Airlines Co., 484 F.3d 907, 912 (7th Cir. 2007) (“That 16 some standards of care used in tort litigation come from federal law does not make the tort claim
17 1 The second amended complaint also cites the Federal Tort Claims Act (“FTCA”), which allows private suits against the United States for damages for loss of property, injury, or death 18 caused by a federal government employee’s negligence. ECF No. 15 at 2; see 28 U.S.C. 19 § 1346(b)(1). To the extent that plaintiffs seek to assert a claim under the FTCA against defendant Sacramento Mather VA Medical Center (they do not list this as a separate cause of 20 action), they fail to allege an actionable claim. See Brownback v. King, 592 U.S. 209, 212 (2021) (listing six elements required for a claim under 28 U.S.C. § 1346(b)). 21 2 To the extent that plaintiffs are attempting to assert a claim for violation of the EMTALA, the complaint fails to make out such a claim. Plaintiffs allege that defendants 22 misdiagnosed the decent and ignored plaintiffs’ statements about the likelihood of him having a 23 UTI when he first visited the emergency room. ECF No. 15 at 12. However, a hospital’s failure to detect, or misdiagnose, an emergency condition is not a violation of the EMTALA. See Bryant 24 v. Adventist Health System/West, 289 F.3d 1162, 1166 (9th Cir. 2002). Instead, a hospital has a duty to stabilize only those emergency medical conditions that its staff detects, and the 25 “stabilization requirement ends when an individual is admitted for inpatient care.” Id. at 1166, 1168 (citation omitted). The FAC alleges that the decedent was admitted following his first ER 26 visit, despite the failure by Kaiser doctors to diagnose his UTI, and that he was also admitted 27 following his subsequent ER visit, when he received treatment for the UTI before he was transferred to a different facility. Thus, plaintiffs’ allegations fail to state a claim for violation of 28 the EMTALA. 1 one ‘arising under’ federal law.”); Williams v. EDCare Mgmt., Inc., 2008 WL 4755744, at *6 2 (E.D. Tex. Oct. 28, 2008) (“Even if Plaintiffs’ causes of action require the court to interpret 3 EMTALA and federal Medicare laws, it does not necessarily follow that federal question 4 jurisdiction exists.”).3 5 The second amended complaint does not allege that the parties’ citizenship is diverse, 6 thereby failing to establish diversity jurisdiction over plaintiffs’ state law claims. See 28 U.S.C. 7 § 1332. Having found that plaintiffs’ federal claims are subject to dismissal, I recommend that 8 the court decline to exercise supplemental jurisdiction over the state law claims. See 28 U.S.C. 9 § 1367(c)(3) (district court may decline supplemental jurisdiction over claim where “court has 10 dismissed all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 11 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated 12 before trial, the balance of factors to be considered under the pendent jurisdiction doctrine— 13 judicial economy, convenience, fairness, and comity—will point toward declining to exercise 14 jurisdiction over the remaining state-law claims.”); United Mine Workers of Am. v. Gibbs, 383 15 U.S. 715, 726 (1966) (“Needless decisions of state law should be avoided both as a matter of 16 comity and to promote justice between the parties, by procuring for them a surer-footed reading 17 of the applicable law.”). 18 In light of the second amended complaint’s deficiencies and considering that plaintiffs 19 have already been given multiple opportunities to amend their complaint, I find that granting 20 plaintiffs another opportunity to amend would not cure the current complaint’s deficiencies. I 21 therefore recommend dismissal without leave to amend. See Schucker v. Rockwood, 846 F.2d 22 1202, 1203-04 (9th Cir. 1988) (per curiam) (“Dismissal of a pro se complaint without leave to 23 3 Plaintiffs’ negligent claims also appear to be premised, at least in part, on defendants’ 24 purported violation of the Rehabilitation Act, 29 U.S.C. § 794. See ECF No. 15 at 13 (alleging defendants had a mandatory duty to provide emergency medical care pursuant to the 25 Rehabilitation Act). To the extent that plaintiffs also intended to allege a Rehabilitation Act claim, they fail to do so. Section 505 of the Rehabilitation Act “creates a private right of action 26 for individuals subjected to disability discrimination by any program or activity receiving federal 27 financial assistance.” Fleming v. Yuma Regional Medical Center, 587 F.3d 938, 940 (9th Cir. 2009). Plaintiffs do not allege that the decedent was denied medical care because he was disabled 28 or that he was otherwise subject to discrimination. 1 | amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 2 | cured by amendment.”) (internal quotation marks and citations omitted). 3 Accordingly, it is hereby RECOMMENDED that: 4 1. The second amended complaint’s federal claims be DISMISSED without leave to 5 | amend. 6 2. The court decline to exercise supplemental jurisdiction over plaintiffs’ state law claims. 7 3. The Clerk of Court be directed to close the case. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of 10 | service of these findings and recommendations, any party may file written objections with the 11 | court and serve a copy on all parties. Any such document should be captioned “Objections to 12 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 13 | within fourteen days of service of the objections. The parties are advised that failure to file 14 | objections within the specified time may waive the right to appeal the District Court’s order. See 15 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 16 1991). 17
Dated: _ April 23, 2025 q——— 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE
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