Unpublished Disposition, 855 F.2d 862 (9th Cir. 1987)

Nos. 87-1544, 87-1610.

United States Court of Appeals, Ninth Circuit.

N.D. Cal.

AFFIRMED.

Appeal from the United States District Court for the Northern District of California; Robert P. Aguilar, District Judge, Presiding.

Before FERGUSON and LEAVY, Circuit Judges, and ALAN A. McDONALD,^**  District Judge.

MEMORANDUM^* 

Ronald Price appeals pro se the district court's dismissal of his complaint for lack of subject matter jurisdiction. The City of Hollister ("City") cross-appeals, challenging the district court's denial of its request for costs under 28 U.S.C. § 1919. Price contends that his complaint, alleging that a City police officer's assistance in rendering him medical aid was a violation of his constitutional rights, does state a federal cause of action. Because insufficient facts are pled to invoke a constitutionally protected interest, we affirm the district court's dismissal of Price's complaint for lack of subject matter jurisdiction.¹  In addition, we affirm the trial court's denial of fees to the City.

On April 10, 1986, police officer John Arde of the City of Hollister, California, responded to a report of a medical emergency. When Officer Arde arrived at Fifth and East Streets, he found Price unconscious on the sidewalk. A man nearby stated he was Price's father and requested that no medical treatment be provided to Price. He offered neither identification nor evidence of authority to make medical decisions on Price's behalf. When the paramedics advised that Price's vital signs were unstable, Officer Arde allowed the paramedics to place Price on a gurney and put him in an ambulance. Price was taken to Hazel Hawkins Memorial Hospital in Hollister, where he was examined and released. Price's complaint alleges that the actions of Officer Arde violated his civil rights guaranteed under the Thirteenth and Fourteenth Amendments.

The City's motion to dismiss Price's complaint for lack of subject matter jurisdiction was granted by the district court on December 12, 1986. No opposition to the motion was ever filed by Price and he made no appearance at the hearing on the motion. The district court, on the same date, denied the City's request for costs. Price timely filed his notice of appeal on January 8, 1987. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Price contends that the district court erred in dismissing his complaint for lack of subject matter jurisdiction, in that his complaint stated a cause of action for violation of his civil rights.²  The existence of subject matter jurisdiction presents a question of law reviewed de novo. Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir. 1986).

Price has attempted to claim that his constitutionally protected liberty and/or privacy interest was violated when emergency medical treatment was rendered to him without his consent. Although it is never specifically pled in his complaint, 42 U.S.C. § 1983 provides a remedy for deprivation of constitutional rights by a person acting under color of state law. An action under section 1983 may be sustained against a municipality such as the City of Hollister. Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). Where a statutory remedy, such as section 1983 exists, no independent constitutional cause of action will lie. Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981). In order to bring his action within the ambit of section 1983, however, Price must be able to allege deprivation of a constitutionally protected right. Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987).

Constitutionally protected interests may be implicated where, as here, the right to refuse medical treatment is involved. These interests include "an interest in being free from bodily invasion, ... an interest in preserving one's decisional autonomy, and ... an interest in maintaining one's privacy within an intimate zone...." Matthews, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 Calif. L. Rev. 707, 723 (1987). However, even where a right to refuse treatment is recognized, the right is not absolute and must be balanced against countervailing state interests. In addition, courts addressing the issue have stressed the necessity that a patient be competent to refuse treatment, and that their refusal be a reflective one, based on moral, philosophical or religious convictions, rather than haste, pain or depression. Id. at 752-53.

At the time of the acts Price complains of, he was unconscious on a city street with weak vital signs. He was unable to make or withhold informed consent. The acts of Officer Arde were a reasonable effort to preserve and protect Price's life in an emergency situation, and were within the duties and obligations of an officer of the law.³  The only evidence presented to Officer Arde or the ambulance personnel that Price desired to refuse medical treatment was the statement of an unidentified individual claiming to be Price's father. Significantly, on regaining consciousness en route to the hospital, Price did not object to treatment being rendered.

Price has inadequately pled any nexus between a deprivation of a protected liberty or privacy interest and his allegations that emergency medical services were imposed upon him without his consent. Since no federal foundation exists which supports Price's complaint, the district court's dismissal for lack of subject matter jurisdiction was proper.

The City asserts in its cross-appeal that since Price filed no opposition to its motion to dismiss and failed to appear at the hearing on same, its request for costs under 28 U.S.C. § 1919 should have been granted. 28 U.S.C. § 1919 provides:

Whenever any action or suit is dismissed in any district court or the Court of International Trade for want of jurisdiction, such court may order the payment of just costs.

The decision whether to award such costs is committed to the discretion of the district court and will only be reversed if such discretion has been abused. Although this circuit has not expressly considered the threshold requirements for an award of costs under section 1919, costs awarded under similar statutory provisions are only proper where there is a showing of bad faith, or where a party's assertions are frivolous or wholly without merit. Semegen v. Weidner, 780 F.2d 727, 735 (9th Cir. 1985) (considering awards under 28 U.S.C. § 1912); Boatowners & Tenants Ass'n. v. Port of Seattle, 716 F.2d 669, 674 (9th Cir. 1983) (considering an award of fees under 42 U.S.C. § 1988). In addition to requiring such a showing, the district court may take into account Price's status as a pro se litigant in deciding whether an award of fees is warranted. See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (per curiam) (reversing district court's fee award following dismissal of civil rights action due to plaintiff's pro se status).

While Price's complaint may fail to properly state a cause of action over which the district court has subject matter jurisdiction, his attempt to plead a violation of his civil rights is not so entirely without merit that the trial court's discretionary decision should be disturbed. Thus, the trial court did not abuse its discretion in denying the City's request for costs.

The order of the district court dismissing Price's complaint for lack of subject matter jurisdiction is affirmed. The district court's order denying the City's request for costs is likewise affirmed.