United States District Court, D. Arizona
HONORABLE RANER C. COLLINS UNITED STATES DISTRICT JUDGE
before the Court is Defendant Universal Health Services'
(“UHS”) Motions to Dismiss (Docs. 13, 20); and
Plaintiff Benjamin Reed's Request for Additional Time to
Serve the Defendant (Doc. 16), and Motion to Recover
Unnecessary Costs of Service and Begin Default Proceedings
Service and Summons
Plaintiff filed his Complaint and Application to Proceed In
Forma Pauperis (IFP) on February 26, 2018. (Docs. 1-2.) On
June 20, 2018, the Court denied the IFP, ordered Plaintiff to
pay a filing fee, and informed Plaintiff that upon payment of
the filing fee he was responsible for the summons and service
upon the Defendant pursuant to Federal and Local Rules of
Procedure. (Doc. 9.) Plaintiff paid the filing fee on July 2,
2018, but no summons issued. Instead, on September 6, 2018,
he filed a motion alleging he had served Defendant on July 5,
2018, and the Court should order a default judgment in his
favor since Defendant had not answered his Complaint. (Doc.
12.) But, Plaintiff's subsequent September 28, 2018
motion asks the Court to extend his time for service and
states, “service is in process and has been
complicated.” (Doc. 16.) In support, Plaintiff attached
a letter from a process server asserting the same, but the
letter was dated only one day prior to the filing of the
extension motion. Id. Also, it was not until he
filed the extension motion that he provided the Clerk of
Court the summons, which issued that day. (See
Clerk's Entry, Sept. 28, 2018.) Plaintiff's own
pleadings demonstrate he did not serve the Defendant in a
timely fashion and therefore Defendant's answer was not
untimely. The Court will therefore deny Plaintiff's
motion to award him costs and begin default proceedings.
first Motion to Dismiss alleges that because Plaintiff did
not timely serve the Defendant, the case should be dismissed
pursuant to Federal Rule of Civil Procedure 4(m). Rule 4(m)
Time Limit for Service. If a defendant is not served within
90 days after the complaint is filed, the court-on motion or
on its own after notice to the plaintiff-must dismiss the
action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the
time for service for an appropriate period.
has not provided good cause for the failure, stating only
that service was “complicated.” Nor does the fact
that his process server also found service difficult-long
after the service deadline-furnish good cause. If he was
experiencing difficulty with service, he could have filed a
timely motion to extend the service deadline. He did not do
so until the time for service had long passed.
Court finds that although it may dismiss this case because of
the service error, the Court also dismisses Plaintiff's
Complaint because he has not pleaded facts supporting a
cognizable claim entitling him to relief. The Court now turns
to the second Motion to Dismiss for Failure to State a Claim.
Standard of Review for Motion to Dismiss Under
complaint under 12(b)(6) 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). While Rule 8
does not require detailed factual allegations, “it
demands more than an unadorned, the defendant
unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. The complaint must contain more than “a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Bell Atlantic
Corp., 550 U.S. at 555. A pleading must have both a
cognizable legal theory and sufficient facts supporting the
cognizable claim. SmileCare Dental Group v. Delta Dental
Plan of Calif., Inc., 88 F.3d 780, 783 (9th Cir. 1996).
Furthermore, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. “Determining
whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679.
plaintiff “fails to state a claim on which relief may
be granted, ” the district court must dismiss the
claim. 28 U.S.C. §1915(e)(2)(B)(ii). But, a
“complaint [filed by a pro se litigant] ‘must be
held to less stringent standards than formal pleadings
drafted by lawyers.'” Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam)). While
dismissal is appropriate if the complaint's deficiencies
cannot be cured by amendment, if the pleading can be remedied
through the addition of facts, the claimant should be granted
an opportunity to amend a complaint prior to final dismissal.
Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir.
raises a federal § 1983 claim and several state tort
claims against Defendant UHS arising from events occurring
during his involuntary committal at UHS' Palo Verde
facility pursuant to Arizona Revised Statute § 36-520 et
seq. (Doc. 1 at 1.) While in Palo Verde, he was treated by
UHS of Tucson, LLC, a subsidiary of UHS. UHS of Tucson is not
a named defendant, nor are any individual actors involved in
the alleged constitutional violations and torts.
raise a claim of deprivation of constitutional rights under
42 U.S.C. § 1983, a claimant must plead facts
demonstrating (1) a defendant violated the claimant's
federally protected rights and (2) the defendant acted
“under color of state law.” Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Any alleged
constitutional violation must be attributed to the state to
be actionable. See Caviness v. Horizon Cnty. Learning
Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (private
conduct is not a basis for a § 1983 claim). Furthermore,
“[m]erely acting pursuant to a statute does not make
one's conduct ‘under color of state
law.'” United States ex rel. Settles v.
Universal Health Svcs., Inc., 3:16-CV-1-J-32JRK, 2016 WL
5791258, at *3 (M.D. Fla. Oct. 4, 2016); see also Lugar
v. Edmondson Oil Co., 457 U.S. 922, 941 (1982) (if abuse
of statute is private, it is not state action, but joint
participation with state official in constitutional violation
may constitute state action); Doherty v. Certified Fin.
Planner Bd. of Standards, Inc., CV-12-01920-PHX-NVW,
2012 WL 5504183, at *2 (D. Ariz. Nov. 13, 2012)
(“Merely contracting with the federal government does
not make Defendant a state actor.”); Doe v. Bellin
Mem'l Hosp., 479 F.2d 756, 761 (7th Cir. 1973)
(hospital accepting state and federal financial support, and
regulated by state laws does not transform its actions into
state conduct). “Without a limit such as this, private
parties could face constitutional litigation whenever they
seek to rely on some state rule governing their interactions
with the community surrounding them.” Lugar,
457 U.S. at 937. In essence, limiting liability to state
actions mens that nongovernmental parties are typically
immune from liability under § 1983. Kirtley v.
Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). To state a
claim under § 1983 against a nongovernmental party,
“therefore, must show that the private parties'
infringement somehow constitutes state action.”
George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229
(9th Cir. 1996). To do so, the claimant must demonstrate that
the private party (1) violated claimant's constitutional
rights, (2) acted under color of state law, and (3) the
violation was a result of an official ...