Scutt v. Kaiser Permanente Wailuku Medical Office et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JASON SCUTT,
Plaintiff,
vs.
KAISER PERMANENTE WAILUKU
MEDICAL CLINICS,
Defendant.
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CIVIL NO. 20-00187 HG-WRP
FINDINGS AND
RECOMMENDATION THAT THE
DISTRICT COURT DISMISS THE
SECOND AMENDED COMPLAINT
IN PART
FINDINGS AND RECOMMENDATION THAT THE DISTRICT
COURT DISMISS THE SECOND AMENDED COMPLAINT IN PART
On April 24, 2020, Plaintiff filed a Complaint against Kaiser
Permanente Wailuku Medical Office and Maui Memorial Hospital, which
appeared to assert a state law negligence claim against Defendants related to
medical care that she received in 2018 and 2019. See ECF No. 1.
On April 28, 2020, this Court issued a Findings and Recommendation
that the District Court Grant Plaintiff’s Application to Proceed Without Prepaying
Fees and Dismiss the Complaint with Leave to Amend (Findings and
Recommendation). See ECF No. 6. In the Findings and Recommendation, the
Court found that Plaintiff had failed to establish subject matter jurisdiction. See id.
Specifically, the Court found that the Complaint did not assert any federal causes
of action, such that the court could have federal question subject matter jurisdiction
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under 28 U.S.C. § 1331. See id. Further, the Court found that diversity
jurisdiction was not available because there was not complete diversity of
citizenship between Plaintiff and all Defendants. That is, Plaintiff and Defendant
Maui Memorial Medical Center were both citizens of Hawaii. See id. (citing
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)). Because Plaintiff had failed to
sufficiently allege subject matter jurisdiction, the Court recommended that the
district court dismiss Plaintiff’s Complaint and refer the screening of any amended
complaint to the undersigned. See id.
On May 3, 2020, before the district court had an opportunity to rule
on the Findings and Recommendation, Plaintiff filed a First Amended Complaint
against Kaiser Permanente Wailuku Medical Office and Maui Memorial Hospital,
which again appeared to assert a state law negligence claim related to medical care
she received in 2018 and 2019. See ECF No. 8.
On May 18, 2020, the district court issued an Order adopting the
Findings and Recommendation. See ECF No. 9.
On June 4, 2020, this Court issued a Findings and Recommendation
that the District Court Dismiss the First Amended Complaint with Leave to Amend
(Second Findings and Recommendation). See ECF No. 10. In the Second
Findings and Recommendation, the Court found that Plaintiff had again failed to
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establish subject matter jurisdiction because the First Amended Complaint did not
assert a federal claim and complete diversity was lacking. See id. The Court
recommended that the district court dismiss Plaintiff’s First Amended Complaint
and refer the screening of any second amended complaint to the undersigned. See
id.
On June 7, 2020, before the district court had an opportunity to rule
on the Second Findings and Recommendation, Plaintiff filed a Second Amended
Complaint against Kaiser Permanente Wailuku Medical Clinics (Kaiser). See
ECF No. 11.
On June 24, 2020, the district court issued an Order adopting the
Second Findings and Recommendation. See ECF No. 12.
After careful consideration of the Second Amended Complaint, the
Court the Court FINDS AND RECOMMENDS that the district court DISMISS the
Second Amended Complaint in part.1
1 Within fourteen days after a party is served with the Findings and
Recommendation, pursuant to 28 U.S.C. § 636(b)(1), a party may file written
objections in the United States District Court. A party must file any objections
within the fourteen-day period to preserve appellate review of the Findings and
Recommendation.
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DISCUSSION
Because Plaintiff is proceeding without prepaying fees under 28
U.S.C. § 1915(a), the court is required to screen Plaintiff’s claims and order the
dismissal of any claims it finds “frivolous, malicious, failing to state a claim upon
which relief may be granted, or seeking monetary relief from a defendant immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122,
1126–27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only
permits but requires” the court to sua sponte dismiss an in forma pauperis
complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.
2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are
not limited to prisoners”). To state a claim, a pleading must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The court must set aside the plaintiff’s conclusory factual
allegations, accept as true the plaintiff’s non-conclusory factual allegations, and
determine whether these allegations state a plausible claim for relief. See Ashcroft
v. Iqbal, 556 U.S. 662, 677-80 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A complaint that lacks a cognizable legal theory or alleges
insufficient facts under a cognizable legal theory fails to state a claim. See UMG
Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir.
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2013). Additionally, the Court has an obligation to investigate whether it has
subject matter jurisdiction. See United Investors Life Ins. Co. v. Waddell & Reed
Inc., 360 F.3d 960, 966-67 (9th Cir. 2004). Because Plaintiff is appearing pro se in
this action, the Court must construe the Second Amended Complaint liberally, in
the light most favorable to Plaintiff, and accept all non-conclusory allegations of
material fact as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating that
pleadings filed pro se “must be held to less stringent standards than formal
pleadings drafted by lawyers”).
First, the Court finds that Plaintiff has sufficiently alleged diversity
jurisdiction. Plaintiff alleges that Kaiser is a citizen of California and that she is a
citizen of Hawaii. See ECF No. 11 at 3. Plaintiff also alleges that she is seeking
$750,000 in damages. See id. at 6. Based on Plaintiff’s allegations, it appears that
the Court has diversity jurisdiction under 28 U.S.C. § 1332.
Second, construing the Second Amended Complaint liberally and in
the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently
stated a claim for negligence against Kaiser for purposes of proceeding with this
claim. To prove medical negligence, Plaintiff must prove that: “(1) Defendant(s)
breached the applicable standard of care; and (2) The breach of the standard of care
was a legal cause of injury/damage to plaintiff(s); and (3) Plaintiff(s) sustained
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injury/damage.” Hawaii Standard Civil Jury Instruction 14.1; see Bernard v. Char,
903 P.2d 676, 682 (Haw. Ct. App. 1995). In the Second Amended Complaint,
Plaintiff alleges that Kaiser owed her a duty of care as a patient, that Kaiser “acted
negligently in rendering care,” and that Kaiser’s negligence resulted in injury to
Plaintiff. See ECF No. 11 at 3-5. For purposes of proceeding with this claim, the
Court finds that Plaintiff has sufficiently stated a claim for negligence against
Kaiser.
Third, the Court finds that the additional allegations included for the
first time in Plaintiff’s Second Amended Complaint are futile and require
dismissal. In addition to the allegations regarding the medical care she received
from Kaiser, Plaintiff alleges for the first time in the Second Amended Complaint
that she has experienced “abusive and unwanted sexual contact - 18 U.S.C. § 2244;
18 U.S.C. § 249, as Hate Crimes, 18 U.S.C. § 241, Conspiracy against rights; 18
U.S.C. § 248 1(a) Freedom of Access to Reproductive Health Clinic, 42
U.S.C. § 1983, 42 U.S.C. § 1981a, 2000e-3 (retaliation for whistleblower
complaints and published audit report deficiencies), 42 U.S.C. § 1211, 42 U.S.C.
§ 2000e-2 (employment discrimination), 18 U.S.C. § 2255 (personal injury), in
accordance with applicable common law in the United States.” See ECF No. 11 at
2. Plaintiff alleges that she has experienced “civil harassments, discrimination,
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other sexual abuse (workplace massages, jokes, etc.), deprivations and false
imprisonments.” Id. at 3. Plaintiff lists several other cases that she has filed in this
district and states that “[t]he Court should refer to the related cases cited to
understand the correlation between staffers, family members, health care
employees and officials who did also deny Plaintiff of certain rights and benefits
under color of state and local authority.” Id. Plaintiff alleges that “[m]edical staff
did intentionally deprive Plaintiff of her rights and freedoms with willful intent to
discriminate, segregate, and otherwise cause pain, injury and suffering to a specific
class of gender-fluid Americans.” Id. at 4.
Plaintiff’s allegations regarding Title 18 of the United States Code are
futile. See ECF No. 11 at 2 (referencing 18 U.S.C. § 2244, § 249, § 241, and
§ 248). Title 18 is the federal criminal and penal code. To the extent Plaintiff is
attempting to assert violations of any criminal statutes, a civil complaint cannot
state a claim for violation of a criminal statute. See Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980). The Court RECOMMENDS that Plaintiff’s Title 18
claims be DISMISSED with prejudice.
Plaintiff’s allegations regarding 42 U.S.C. § 1983 are also futile as
alleged in the Second Amended Complaint. “Section 1983 imposes two essential
proof requirements upon a claimant: 1) that a person acting under color of state
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law committed the conduct at issue, and 2) that the conduct deprived the claimant
of some right, privilege or immunity protected by the Constitution or laws of the
United States.” Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988). Plaintiff’s
Second Amended Complaint fails to allege that Kaiser acted under color of state
law. Generally, Section 1983 applies to government officials and employees.
However, a private person may act under “color of law” when they exercise power
“possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988)
(internal citation omitted). Plaintiff does not allege any facts to show that Kaiser
was exercising power possessed by virtue of state law or were acting under the
authority of state law. The Court RECOMMENDS that Plaintiff’s Section 1983
claims be DISMISSED without prejudice.
Similarly, Plaintiff’s allegations regarding 42 U.S.C. § 1981, § 12111,
and § 2000e are also futile as alleged in the Second Amended Complaint. These
statutes apply to employers. Plaintiff does not allege that Kaiser is her employer,
and, based on other allegations in the Second Amended Complaint, it appears that
Plaintiff’s employer is another entity that is not named as a defendant. The Court
RECOMMENDS that Plaintiff’s employment claims be DISMISSED without
prejudice.
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Although Plaintiff’s Section 1983 claims and employment claims are
deficient, the Court recognizes that “[u]nless it is absolutely clear that no
amendment can cure the defect . . . , a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend.” Lucas v. Dep’t of Corr.,
66 F.3d 245, 248 (9th Cir. 1995); see also Lopez v. Smith, 203 F.3d 1122, 1126
(9th Cir. 2000) (en banc). Accordingly, the Court RECOMMENDS that Plaintiff
be given leave to file a third amended complaint, addressing the deficiencies
identified above, no later than thirty days from the district court’s adoption of this
Findings and Recommendation. If Plaintiff chooses to file a third amended
complaint, the document must be clearly designated as the “Third Amended
Complaint,” the document must include all factual allegations, and may not
incorporate by reference any part of the original Complaint, the First Amended
Complaint, or the Second Amended Complaint. See Local Rule 10.4.
As an alternative to filing a Third Amended Complaint, the Court
RECOMMENDS that Plaintiff be given until July 20, 2020 to notify the Court in
writing that she elects to proceed only with her medical negligence claim against
Kaiser and that claim will be served.
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CONCLUSION
The Court FINDS AND RECOMMENDS that the district court
ORDER as follows:
1. Plaintiff’s claim for medical negligence states a plausible claim for
relief against Kaiser Permanente Wailuku Medical Clinics and may proceed;
2. Plaintiff’s claims under the Title 18 of the United States Code are
DISMISSED with prejudice;
3. Plaintiff’s claims under 42 U.S.C. § 1983 and Plaintiff’s
employment claims are DISMISSED without prejudice. Plaintiff may file an
amended pleading that cures the noted deficiencies in these claims no later than
thirty days from the district court’s adoption of this Findings and Recommendation
and the screening of any amended complaint is REFERRED to the undersigned;
4. IN THE ALTERNATIVE, Plaintiff may notify the court in writing
on or before July 20, 2020, that she elects to proceed with only her medical
negligence claim against Kaiser Permanente Wailuku Medical Clinics and that
claim will be served;
5. CAUTION Plaintiff that failure to file a third amended complaint
within the time frame specified above or, alternatively, to notify the Court in
writing that she elects to proceed with her medical negligence claim will result in
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the automatic dismissal of this action.
IT IS SO FOUND AND RECOMMENDED.
DATED AT HONOLULU, HAWAII, JUNE 25, 2020.
SCUTT V. KAISER PERMANENTE WAILUKU MEDICAL OFFICE, ET AL.;
CIVIL NO. 20-00187 HG-WRP; FINDINGS AND RECOMMENDATION THAT
THE DISTRICT COURT DISMISS THE SECOND AMENDED COMPLAINT IN
PART
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