Neuendorf v. John C Lincoln Medical, No. 2:2010cv00752 - Document 6 (D. Ariz. 2010)

Court Description: ORDER granting 4 Motion for Leave to Proceed in forma pauperis. The Complaint (Doc. 1) and this action are dismissed for failure to state a claim upon which relief may be granted, and the Clerk of Court must enter judgment accordingly. The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a strike under 28 U.S.C. § 1915(g). The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith.. Signed by Judge Robert C Broomfield on 8/2/10.(LAD)
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Neuendorf v. John C Lincoln Medical 1 Doc. 6 WO §RP 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Calvin Neuendorf, II, Plaintiff, 10 11 vs. 12 John C. Lincoln Medical, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-752-PHX-RCB (DKD) ORDER 15 16 On April 5, 2010, Plaintiff John Calvin Neuendorf, II, who is confined in the 17 Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 18 U.S.C. § 1983 (Doc. 1). Plaintiff did not pay the $350.00 civil action filing fee or file an 19 Application to Proceed In Forma Pauperis. By Order filed April 27, 2010 (Doc. 3), the 20 Court gave Plaintiff 30 days from the filing date of the Order to pay the fee or file a 21 completed Application to Proceed In Forma Pauperis and a certified six-month trust account 22 statement. 23 I. Application to Proceed In Forma Pauperis and Filing Fee 24 On May 25, 2010, Plaintiff filed an Application to Proceed In Forma Pauperis 25 (Doc. 4) and an “Inmate Account Statement” (Doc. 5). Plaintiff’s Application to Proceed 26 will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 27 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $1.53. The 28 remainder of the fee will be collected monthly in payments of 20% of the previous month’s Dockets.Justia.com 1 income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The 2 Court will enter a separate Order requiring the appropriate government agency to collect and 3 forward the fees according to the statutory formula. 4 II. Statutory Screening of Prisoner Complaints 5 The Court is required to screen complaints brought by prisoners seeking relief against 6 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 8 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 9 be granted, or that seek monetary relief from a defendant who is immune from such relief. 10 28 U.S.C. § 1915A(b)(1), (2). 11 A pleading must contain a “short and plain statement of the claim showing that the 12 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 13 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 14 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 15 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.” Id. 17 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 18 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 19 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 20 that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 22 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 24 allegations may be consistent with a constitutional claim, a court must assess whether there 25 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 26 If the Court determines that a pleading could be cured by the allegation of other facts, 27 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 28 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court -2- 1 should not, however, advise the litigant how to cure the defects. This type of advice “would 2 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 3 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was 4 required to inform a litigant of deficiencies). Plaintiff’s Complaint will be dismissed for 5 failure to state a claim, without leave to amend because the defects cannot be corrected. 6 III. Complaint 7 Named as Defendant in the Complaint is John C. Lincoln Medical, Surgery 8 Department/Unknown Surgeon. Plaintiff asserts three counts in the Complaint. In Counts 9 I and II, Plaintiff claims that his rights under the Fifth Amendment were violated. In 10 Count III, Plaintiff claims that this rights under the Eighth Amendment were violated. 11 Plaintiff seeks a jury trial and monetary damages. 12 IV. Failure to State a Claim 13 In Count I, Plaintiff claim that his Fifth Amendment rights were violated “around 14 August” of 2002 when he was “flown from [a] bad accident” and “‘surve[il]lance 15 technology’ (crystal) fiber optics” were “installed in [Plaintiff’s] head (brain) during [the] 16 attachment of his left ear during life[-]threatening surgery.” Plaintiff alleges that “[s]urgeon 17 and staff nurses etc.” must have “put [the] device in [Plaintiff’s] head.” Plaintiff further 18 alleges that now “[p]eople seem to be able to know everything [Plaintiff is] thinking [and] 19 then torment [him] about whatever [he is] thinking with voices of people [he] know[s].” 20 In Count II, Plaintiff claims that his Fifth Amendment rights have been violated 21 because he has “been assaulted and in life[-]threatening situations” while he has been 22 incarcerated at the Arizona Department of Corrections (ADOC) for six years. Plaintiff 23 alleges that there have been “continuous incidents[,] with the named hospital,” John C. 24 Lincoln, “to blame.” Plaintiff further alleges that the “Jail appears to be involved” but he is 25 “not sure due to [his] inability to understand who is controlling the program for [the] device.” 26 Plaintiff also alleges that be believes that “some signals from short wave frequencies make 27 this ‘bug’ operate.” 28 In Count III, Plaintiff claims that his Eighth Amendment rights have been violated -3- 1 because the “named Defendant ‘John C. Lincoln’ Hospital Medical Center” has failed “to 2 exercise fair and impartial treatment” as shown by the “instal[l]ation of [the] device for 3 surve[il]lance and [their] torturous methods to induce insanity.” 4 Title 28 U.S.C. § 1915A(b)(1) mandates that the Court dismiss a complaint if it is 5 frivolous, malicious, or fails to state a claim upon which relief may be granted. Moreover, 6 “an action may be dismissed . . . where the defense is complete and obvious from the face 7 of the pleadings.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). In the absence 8 of waiver, the Court may raise the defense of statute of limitations sua sponte. Levald, Inc. 9 v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993). Here, it appears from the face of 10 Plaintiff’s Complaint that his claims in all of his counts are barred by the applicable statute 11 of limitations. 12 In 42 U.S.C. § 1983 actions, the applicable statute of limitations is the forum state’s 13 statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266, 274- 14 76 (1985); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991). The Arizona statute of 15 limitations for personal injury actions is two years. See Ariz. Rev. Stat. § 12-542(1); 16 Madden-Tyler v. Maricopa County, 943 P.2d 822, 824 (Ariz. Ct. App. 1997); Vaughan, 927 17 F.2d at 478. 18 Plaintiff’s claims in Counts I, II, and III of the Complaint arose from actions that took 19 place surrounding his surgery at John C. Lincoln Hospital “around August” of 2002. 20 However, Plaintiff did not file this action until April 5, 2010, well over seven years after the 21 claims in Counts I, II, and III arose. Accordingly, all of the claims in Counts I, II, and III are 22 barred by the statute of limitations and will be dismissed for failure to state a claim upon 23 which relief may be granted. 24 In so doing, the Court notes that even if the statute of limitations did not bar this 25 action, Plaintiff has still failed to state a cognizable claim pursuant to 42 U.S.C. § 1983. To 26 state a claim under § 1983, Plaintiff must show that: (1) the conduct complained of was 27 committed by a person acting under color of state law and (2) the conduct deprived the 28 Plaintiff of a constitutional right. Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th -4- 1 Cir. 1988). Thus, “[a] claim may be brought under § 1983 only if the defendant acted ‘under 2 color’ of state law.” Rendell-Baker v. Kohn, 457 U.S. 830, 835 (1982). “[A] person acts 3 under color of state law only when exercising power ‘possessed by virtue of state law and 4 made possible only because the wrongdoer is clothed with the authority of state law.’” Polk 5 County v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v. Classic, 313 U.S. 6 299, 326 (1941)). Absent a special relationship, a state has no constitutional duty to protect 7 the life, liberty, or property of a citizen from deprivations by private actors. DeShaney v. 8 Winnebago County Dep't of Social Services, 489 U.S. 189 (1989); Balisteri, 901 F.2d at 699- 9 700. Generally, private parties are not acting under color of state law. See Price v. Hawaii, 10 939 F.2d 702, 707-08 (9th Cir. 1991). Here, Defendant John C. Lincoln Medical is a private party that is not acting under 11 12 color of state law for purposes of a claim brought under § 1983. 13 V. Dismissal of Complaint Without Leave to Amend 14 Because no claims now remain, the Compliant will be dismissed for failure to state 15 a claim upon which relief may be granted. Also, because it is clear from the face of the 16 Complaint that the deficiencies in the Complaint cannot be cured by amendment, the Court 17 will order that the action be dismissed without leave to amend and judgment entered 18 accordingly. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (citing Broughton v. 19 Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)). 20 IT IS ORDERED: 21 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 4) is granted. 22 (2) As required by the accompanying Order to the appropriate government agency, 23 24 Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $1.53. (3) The Complaint (Doc. 1) and this action are dismissed for failure to state a 25 claim upon which relief may be granted, and the Clerk of Court must enter judgment 26 accordingly. 27 28 (4) The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). -5- 1 (5) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. 2 § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this 3 decision would not be taken in good faith. 4 DATED this 2nd day of August, 2010. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-