Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1988)

MEMORANDUM^** 

Robert and Craig Lauderdale appeal pro se from a district court order sua sponte dismissing their civil rights complaint as frivolous under 18 U.S.C. § 1915(d). The Lauderdales argue that two private hospitals and two private ambulance services are liable under 42 U.S.C. §§ 1983 and 1985 because they caused the death of Beverly Lauderdale (the plaintiffs' wife and mother) by (1) failing to provide timely ambulance service when requested, and (2) failing to exercise due care. We affirm the district court.

On March 17, 1987, the Lauderdales filed this action against Permanente Medical Group, Inc.; Kaiser Permanente Medical Center, Hayward; Valley Ambulance, Inc.; Regional Ambulance, Inc.; and various unnamed defendants. The Lauderdales alleged the defendants were liable for the death of Beverly Lauderdale because the defendants (1) failed on two occasions to dispatch ambulances in a timely fashion, and (2) failed to exercise due care in treating Beverly Lauderdale. The Lauderdales attempted to assert liability on theories of wrongful death, medical malpractice, civil rights violations, and conspiracy to violate civil rights. The Lauderdales requested to proceed in forma pauperis. On March 26, 1987, the district court sua sponte dismissed the Lauderdales' complaint as frivolous under 28 U.S.C. § 1915(d). The court denied the Lauderdales' motion to reconsider on April 3, 1987. The Lauderdales timely appealed. We review the district court's dismissal under section 1915(d) de novo. Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).

The Lauderdales contend the district court erred by dismissing their complaint as frivolous. The contention lacks merit.

The Lauderdales argue that the defendants are liable under 42 U.S.C. § 1983. To state a cause of action under section 1983, plaintiffs must plead that the defendants (1) acted under color of state law, and (2) deprived the plaintiffs of rights secured by federal law. Karim-Panahi v. Los Angeles Police Dep't, No. 86-6198, slip op. at 1632 (9th Cir. Feb. 16, 1988).

(1) Normally, private hospitals and ambulance services do not act under the color of state law. See Briley v. California, 564 F.2d 849, 855-56 (9th Cir. 1977). They may so act, however, if the state is significantly involved in the specific activity of which the party complains. Watkins v. Mercy Med. Center, 520 F.2d 894, 896 (9th Cir. 1975).

Here, the Lauderdales allege that both Kaiser Permanente and Regional Ambulance are under contract with the Alameda County Emergency Medical Services Agency to provide advanced life support services under the California Emergency Medical Services System and the Prehospital Emergency Medical Care Personnel Act, Cal. Health & Safety Code Secs. 1797-1799.110.¹  Thus, when Kaiser Permanente and Regional Ambulance are delivering, or attempting to deliver, services under the Act, they are operating under color of state law. Contrast Watkins, 520 F.2d at 896 (private hospital's receipt of federal funds was not, by itself, sufficient connection with the state for purposes of Sec. 1983).

On the other hand, the Lauderdales alleged that Valley Ambulance and Permanente Medical are connected to the state only by their purported conspiracy with Kaiser Permanente and Regional Ambulance. A private party can act under color of state law by conspiring with a state official. See United Steelworkers v. Phelps Dodge Corp., 833 F.2d 804, 805 (9th Cir. 1987). Nevertheless, a plaintiff must allege facts indicating that the private party controlled the actions of the state officer. Id. at 806; see also, McCarthy v. Mayo, 827 F.2d 1310, 1316 (9th Cir. 1987). Vague or conclusory allegations of conspiracy without reference to specific actions are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (dismissal of Sec. 1983 action upheld where pro se plaintiff's allegations were vague and conclusory).

The Lauderdales' bare assertions of conspiracy by Permanente Medical and Valley Ambulance make no reference to specific facts that might indicate the defendants controlled the actions of Kaiser Permanente and Regional Ambulance. Therefore, Permanente Medical and Valley Ambulance are not liable under section 1983. See McCarthy, 827 F.2d at 1316.

(2) Under Karim-Panahi, the Lauderdales must next show that Regional Ambulance and Kaiser Permanente violated their federal rights. The Lauderdales instead allege that the defendants violated Beverly Lauderdale's civil rights. Although they do not specify the right that was purportedly infringed, we assume the Lauderdales intended to allege a deprivation of life in violation of substantive due process under the Fourteenth Amendment. As alleged, however, they do not have standing to assert that right.

To have standing under Article III of the United States Constitution, a plaintiff must " 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.' " Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)). The California survivorship statute allows estate administrators to sue for injuries suffered by the deceased before death. Cal. Probate Code Sec. 573. State survivorship laws may be used in section 1983 actions to supplement federal law. See, e.g., Smith v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir.) cert. denied, 108 S. Ct. 311 (1987) (estate could assert a Sec. 1983 claim for violations of the deceased's Fourth Amendment rights by application of the California survival statute and 42 U.S.C. § 1988). Because the Lauderdales are suing in their individual capacities, however, they lack standing to assert claims for her injuries. See King v. Wilson, 96 Cal. App. 2d 212, 213-14, 215 P.2d 50, 51 (1950) (heir who was not administrator of estate lacked capacity to sue on deceased's cause of action).²  Moreover, even if the Lauderdales had pled violation of their personal right not to be deprived of the life of family member Beverly Lauderdale, see, e.g., Smith, 818 F.2d at 1419, this would not cure the lack of any alleged facts that indicate an intentional deprivation of such a right. Ivey, 673 F.2d at 268 (even for pro se litigant "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.").

The Lauderdales also alleged that they suffered psychological distress because of the defendants' untimely responses to the Lauderdales' requests for ambulance service. Such allegations, however, do not rise to the level of a constitutional violation. Cf. Baker v. McCollan, 443 U.S. 137, 146 (1979) (Sec. 1983 imposes liability for constitutional violations, not for violations of duties arising under state tort law); Escamilla v. City of Santa Ana, 796 F.2d 266 (9th Cir. 1986) (allegations that officers failed to intercede in barroom shooting stated action for negligence, but not for due process violations).

The Lauderdales' complaint also attempts to state a claim under 42 U.S.C. § 1985 for conspiracy to deprive them of their civil rights. This claim is also without merit.

First, because the defendants did not violate the Lauderdales' civil rights, they cannot be liable for conspiring to do so. Second, the Lauderdales' allegations of conspiracy are vague, conclusory, and without reference to any specific facts that would indicate a conspiracy. See Ivey, 673 F.2d at 268. Accordingly, the district court did not err in dismissing the complaint.³ 

We AFFIRM.