CINDY K. JORGENSON, District Judge.
Pending before the Court the Motion to Dismiss filed by federal government defendants ("Federal Defendants") (Doc. 49), the Motion to Dismiss filed by state government defendants ("State Defendants") (Doc. 51), the Motion to Dismiss filed by the University Medical Center ("UMC") (Doc. 52), the Motion to Dismiss filed by Sonora Behavioral Health Hospital ("SBH") (Doc. 53), the Motion to Dismiss filed by Community Partnership of Southern Arizona ("CPSA") (Doc. 57), the Motion for Jury Trial filed by Plaintiff Patricia Bauerle ("Bauerle") (Doc. 85), the Motion to Unseal Document filed by Bauerle (Doc. 86), and the Motion for Extension of Time filed by Bauerle (Doc. 88).
I. Procedural Background
On October 24, 2012, Bauerle filed an Amended Complaint in this action. Bauerle names the U.S. Department of Health and Human Services ("HHS"), the Arizona State Department of Health Services ("DHS"), the Community Partnership of Southern Arizona ("CPSA"), the University Physicians Hospital at Kino Campus (now known as University Medical Center - South Campus) ("UMC"), the Northwest Medical Center ("NMC"), the Sonora Behavioral Health Hospital ("SBH"), the Carondelet Health Network ("CHN"), the Ninth Circuit Court of Appeals ("Defendant Ninth Circuit"), the Office of the U.S. Attorney General ("AG"), the Federal District Court ("Defendant District Court"), the Superior Court of Pima County ("Superior Court"), and the Office of Administrative Hearings ("OAH") as Defendants.
Bauerle alleges Defendants, in both their official and personal capacities, violated the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution pursuant to 18 U.S.C. § 1983 and violated the Americans with Disabilities Act ("ADA"). Bauerle also alleges the HHS, HDS, and CPSA have a custom, policy, and/or practice of violating the rights of Bauerle and others by involuntarily medicating Bauerle in emergency rooms and in behavioral health hospitals when no emergency exists, no court order is in place, and when Bauerle is not a danger to herself or others. Bauerle alleges this was done without first trying to implement less restrictive alternative procedures.
Specifically, Bauerle alleges SBH involuntarily injected Bauerle with medication on at least three different occasions in December 2011, enough though Bauerle was not a danger to herself or others, and no emergency or court order existed. Bauerle appears to allege hospital staff fraudulently wrote "DTS" or "DTO" in her records with no support. Bauerle also alleges NMC placed her in restraints and involuntarily injected her with medication on December 4, 2011, even though Bauerle did not present a danger to herself or others and no emergency existed. Bauerle also alleges UMC involuntarily injected Bauerle on July 17, 18, and 25, 2010, with medication even though she was not a danger to herself or others and no emergency or court order existed. Bauerle also alleges conduct of UMC that occurred in 2000. Bauerle also alleges conduct by Dr. Philander, University of Minnesota-Fairview Hospital, and a social worker but does not name them as Defendants.
Bauerle alleges CHN held her hostage for more than 60 days in violation of the least restrictive environment the ADA and the Fair Housing Act. Bauerle does not state when the conduct is alleged to have occurred.
Bauerle alleges the AG, and the federal court system (presumably, Bauerle is referring to Defendant Ninth Circuit and Defendant District Court) has a custom, policy, and/or practice of making egregious violations of substantive due process of Bauerle based on adverse judicial rulings.
Bauerle also alleges the Superior Court has a custom, policy, and/or practice of egregeiously violating the rights of pro se plaintiffs appealing for a judicial review of the OAH by requiring Bauerle to incur extraordinary expenses to serve defendants in a proceeding to review AOH. Bauerle also alleges the OAH denied Bauerle her right to subpoena numerous witnesses for hearing "when the plaintiff, who was proceeding pro se, included justifications, which the website for the [OAH] did not even require." Amended Complaint, Doc. 13, p. 7.
On October 22, 2013, Bauerle filed a Motion to Amend Complaint and attached a proposed Second Amended Complaint. On December 6, 2012, the magistrate judge assigned to this case at the time struck the Motion to Amend Complaint with leave to refile after the Ninth Circuit issued a ruling. See Doc. 33. A renewed Motion to Amend Complaint has not been refiled.
State Defendants have filed an Answer (Doc. 25), UMC has filed an Answer (Doc. 26), and NMC has filed an Answer (Doc. 27).
Federal Defendants have filed a Motion to Dismiss (Doc. 49, response at Doc. 55, reply at Doc. 67), State Defendants have filed a Motion to Dismiss (Doc. 51, response at 58, reply at Doc. 83), UMC has filed a Motion to Dismiss (Doc. 52), SBH has filed a Motion to Dismiss (Doc. 53, response at 61, 65, reply at 79) which has been joined by NMC (Docs. 54 and 87), and CPSA has filed a Motion to Dismiss (Doc. 57, response at Doc. 77). Docs. 89 and 90.
II. Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and a case is presumed to fall outside a federal court's jurisdiction unless proven otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A district court is empowered to hear only those cases which are within the judicial power conferred by the United States Constitution and those which fall within the area of jurisdiction granted by Congress. Richardson v. United States, 943 F.2d 1107, 1112-13 (9th Cir. 1991), cert. denied, 503 U.S. 936 (1992). Under Fed.R.Civ.P. 12(h), this Court is required to dismiss an action "[i]f the court determines at any time that it lacks subject-matter jurisdiction[.]"
The United States, including its agencies and employees, can be sued only to the extent that it has expressly waived its sovereign immunity. Absent a waiver of sovereign immunity, federal courts have no subject matter jurisdiction in cases against the United States government. United States v. Kitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."); Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1115 (9th Cir. 2003). Some common waivers of sovereign immunity are found in the Federal Tort Claims Act ("FTCA"), 28 USC § 2674 (waives sovereign immunity for certain tort claims), the Administrative Procedures Act, 5 USC § 702 (waives sovereign immunity for nonmonetary claims based on agency action), the Equal Access to Justice Act, 28 USC § 2412 (waives sovereign immunity for costs and fees), the Bankruptcy Act, 11 USC § 106(a) (waives sovereign immunity in bankruptcy proceedings), and for actions against federal officials in their individual capacity for violation of an individual's constitutional rights. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).
III. Short and Plain Statement Pleader is Entitled to Relief
A complaint is to contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Rule 8(a), Fed.R.Civ.P. While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Moreover, the United States Supreme Court has found that a plaintiff must allege "enough facts to state a claim to relief that is plausible on its facts." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). While a complaint need not plead "detailed factual allegations, " the factual allegations it does include "must be enough to raise a right to relief above the speculative level." Id. at 1964-65; see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss[.]"). The Court also considers that the Supreme Court has cited Twombly for the traditional proposition that "[s]pecific facts are not necessary [for a pleading that satisfies Rule 8(a)(2)]; the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests." Erickson v. Pardue, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 929 (2007). Indeed, Twombly requires "a flexible plausibility standard, ' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. " Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007); see also Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) (for a complaint to survive a motion to dismiss, the non-conclusory "factual content, " and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief).
This Court must take as true all allegations of material fact and construe them in the light most favorable to the non-moving party. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, 457 U.S. 800. Nonetheless, the Court does not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Furthermore, the Court is not to serve as an advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in attempting to decipher a complaint. See e.g., Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants" because this would undermine district judges' role as impartial decisionmakers.).
IV. Possible Dismissal
Where a court determines dismissal is appropriate, the court must also determine if dismissal with leave to amend is warranted. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (leave to amend is liberally granted unless absolutely clear deficiencies cannot be cured by amendment). When dismissing with leave to amend, a court is to provide reasons for the dismissal so a plaintiff can make an intelligent decision whether to file an amended complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987).
V. Federal Defendants' Motion to Dismiss (Doc. 49)
Bauerle alleges Federal Defendants, along with all Defendants, violated her constitutional rights and violated the ADA. Bauerle also alleges the HHS has a custom, policy, and/or practice of violating the rights of Bauerle and others by involuntarily medicating Bauerle in emergency rooms and in behavioral health hospitals when no emergency exists, no court order is in place, and when Bauerle is not a danger to herself or others. Lastly, Bauerle alleges the AG and the federal court system has a ...