Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1989)

Nos. 88-3550, 88-3707.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING and FLETCHER, Circuit Judges, and EUGENE F. LYNCH** , District Judge.

MEMORANDUM*** 

Appellants Mark Jenkins and his parents, John and Joanne Jenkins, filed suit under 42 U.S.C. § 1983 against Merle West Medical Center, Dr. Pedan, Klamath County and Deputy Barragan. The district court dismissed the claims. John and Joanne Jenkins appealed.

Mark Jenkins filed an amended complaint, naming Sheriff Tom Duryee, Deputy Barragan, District Attorney Caleb, Charles Bailey, Chairman of Merle West, Dr. Pedan and nurse Bollier.1  The district court granted summary judgment for Chairman Bailey, nurse Bollier, Dr. Pedan and Sheriff Duryee and granted District Attorney Caleb's motion to dismiss.2  Mark Jenkins appealed.

We consolidated the appeals and now affirm in part and reverse and remand in part.3 

* At 1:30 p.m. on December 15, 1984, Mark drove his car off an icy road and into a power pole. He was badly injured, suffering a concussion, a knee injury, a hole in his jaw and broken and lost teeth. Two nearby residents went to Mark's aid, bringing him inside and calling an ambulance. Paramedics arrived shortly and brought Mark to the Merle West emergency room at approximately 2:20 p.m.

Dr. Pedan and Nurse Bollier began treating Mark, but left the emergency room when two Klamath County deputies, one of whom was Deputy Carlos Barragan, entered. The other deputy left shortly thereafter. According to Mark, Barragan interrogated him for two to three hours in an effort to obtain evidence that Mark had been driving under the influence of intoxicants. Barragan allegedly pushed Mark over furniture, prevented him from receiving the medical treatment his condition required, and otherwise harassed him.

At some point during the interrogation, Mark sought to leave the hospital, allegedly to get help from his parents. Mark alleges Barragan drew his gun and threatened to shoot Mark if he left the hospital. Despite Mark's injuries and despite the fact that blood and urine tests for intoxication could have been administered at the hospital, Barragan insisted Mark accompany him to the sheriff's office to take a breath test. Mark refused. Deputy Barragan seized Mark's driver's license and cited Mark for drunk driving.

Mark asserts that during the course of these events Dr. Pedan and nurse Bollier passed the emergency room, and Mark "called to them for help and begged them to get the deputy off of his case," but they did nothing. Dr. Pedan, on the other hand, claims Mark refused treatment. Approximately three hours after Mark arrived at the emergency room, he was taken to the office of a dentist, Dr. Dressell, who treated his mouth injuries. Mark ultimately lost two teeth he claims could have been saved had he been treated sooner.

The Oregon Department of Motor Vehicles conducted a hearing to determine if Mark's driver's license should be suspended for refusing the breath test. The administrative law judge concluded that "under the circumstances, the breath test request was improperly made." Klamath County District Attorney Edwin Caleb brought drunk driving charges against Mark, but dropped them because the "state could not prove its case."

II

* The district court granted summary judgment for Chairman Bailey and nurse Bollier on the ground the claims against them were barred by the court's earlier unappealed order dismissing the complaint against Merle West for failure to allege state action.

The claims were not barred by either claim or issue preclusion. Since the order dismissing Mark's suit against Merle West did not adjudicate the rights and liabilities of all parties to the action and no entry of final judgment was directed pursuant to Federal Rule of Civil Procedure 54(b), it was not a final order and cannot bar the suit against Chairman Bailey and nurse Bollier on the theory of claim preclusion. See Robi v. Five Platters, Inc., 838 F.2d 318, 321-22 (9th Cir. 1988). Nor is the suit against Chairman Bailey or nurse Bollier barred by issue preclusion. The district court dismissed the suit against Merle West because the complaint did not allege state action. Since there is no respondent superior liability in section 1983 actions, whether Merle West is a state actor for purposes of Mark's suit is not the same issue as whether Chairman Bailey or nurse Bollier may be. The latter issue was not "actually litigated and necessarily decided in [the] prior proceeding," Robi, 838 F.2d at 322 (quotation omitted), and its litigation in this proceeding is not precluded. See id.

B

A pro se complaint must be interpreted liberally, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and we may affirm a grant of summary judgment on any basis fairly supported by the record, Alcaraz v. Block, 746 F.2d 593, 602 (9th Cir. 1984), but even under a liberal interpretation, Mark's complaint does not allege facts that could constitute state action by Chairman Bailey.4  Bailey is a state actor only if "he is a state official, ... he has acted together with or has obtained significant aid from state officials, or ... his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see Aasum v. Good Samaritan Hosp., 542 F.2d 792, 794 (9th Cir. 1976). Merle West is a private hospital, and Chairman Bailey is not a state official. Mark alleges Dr. Pedan's and nurse Bollier's deliberate indifference to his serious medical needs resulted from a policy adopted by Bailey to cooperate with the county in apprehending drunk drivers, but such general assertions with no showing of a direct connection between the state and the alleged constitutional violation are insufficient to establish a claim under section 1983. See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (motion to dismiss, not summary judgment).

III

Mark did, however, make a showing sufficient to withstand the motion for summary judgment in favor of nurse Bollier and Dr. Pedan. When we construe Mark's complaint liberally, he alleged nurse Bollier and Dr. Pedan were deliberately indifferent to his serious medical needs under the orders of, or in conspiracy with, Deputy Barragan. Nurse Bollier did not dispute Mark's allegations. Instead, she claimed they did not rise to the level of a constitutional violation. If the allegations are true, however, Mark has asserted a violation of his fourteenth amendment rights. See Ortiz v. City of Imperial, No. 88-6569, slip op. 11389, 11394 (9th Cir. Sept. 13, 1989).

Dr. Pedan submitted an affidavit in support of his motion for summary judgment in which he stated he was acting solely as a private physician and that Mark refused treatment. Mark's verified complaint and Response to Motion for Summary Judgment set forth facts inconsistent with those asserted by Dr. Pedan. Summary judgments for nurse Bollier and Dr. Pedan are reversed.5 

IV

Sheriff Duryee is liable for Deputy Barragan's actions only if Barragan acted pursuant to official policy or custom authorizing or approving the misconduct. See Bergquist v. County of Cochise, 806 F.2d 1364, 1369-70 (9th Cir. 1986) (citing Monell v. Department of Social Servs., 436 U.S. 658 (1978)). Mark concedes he has no evidence that Barragan acted pursuant to policy or custom, and attempts to prove on the basis of this incident alone that Duryee "caused" the violation of Mark's constitutional rights. But " [p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion). Summary judgment for Sheriff Duryee is affirmed.

V

The dismissal of Mark's claim against District Attorney Caleb on the ground of absolute prosecutorial immunity is also affirmed. "A prosecutor enjoys absolute immunity when he acts within the scope of his authority and in a quasi-judicial capacity." Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir. 1989). Caleb's prosecution of Mark for drunk driving was clearly an exercise of quasi-judicial authority, see id., and, contrary to Mark's argument, there is no bad faith exception to absolute prosecutorial immunity. "The intent of the prosecutor when performing prosecutorial acts plays no role in the immunity inquiry." McCarthy v. Mayo, 827 F.2d 1310, 1315 (9th Cir. 1987); (citing Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc)).

VI

The district court dismissed with prejudice the claim of Mark's parents, John and Joanne Jenkins, for failure to allege deprivation of an identifiable constitutional right.

"A pro se litigant must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam)). The argument on appeal on behalf of John and Joanne indicates that if informed of the deficiencies of their complaint, they might have stated a cause of action by alleging the treatment of Mark resulted from their public opposition during the 1984 presidential elections to the candidate of one of the major political parties. "Because state action designed to retaliate against and chill political expression strikes at the heart of the First Amendment, all that [the parents'] complaint needs so as to avoid dismissal are allegations that [the treatment of Mark] was motivated by an intent to retaliate for [the parents'] exercise of constitutionally protected rights." Thomas v. Carpenter, 881 F.2d 828, 829 (9th Cir. 1989) (quotations and citations omitted). The dismissal is reversed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.6 

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

The Honorable Eugene F. Lynch, United States District Judge for the Northern District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Nurse Bollier was named incorrectly in the complaint and notice of appeal as nurse Bollman

 2

Only Mark's claim against Deputy Barragan survived, and it has been stayed pending this appeal

 3

Appellees' motion to strike Mark's exhibits to his brief is granted

 4

Jenkins did not submit an affidavit or other evidence in opposition to the motion for summary judgment. He did, however, submit a Response to Motion for Summary Judgment, and his pro se complaint was verified. Because his response and complaint are "based on personal knowledge and set [ ] forth specific facts admissible in evidence, [they] may be considered in opposition to summary judgment." McElyea v. Babbitt, 833 F.2d 196, 197-98 & n. 1 (9th Cir. 1987)

 5

Because we reverse the summary judgment, Dr. Pedan's motion for attorney's fees and costs is denied

 6

Each party will bear his or her own costs