United States District Court, D. Oregon
A. RUSSO UNITED STATES MAGISTRATE JUDGE
plaintiff, Christopher Beck, brings this action asserting
defendant Providence Health & Services - Oregon
"failed to manage [his] pain that was obviously seen,
heard." Complaint (#2) at p. 4. On September 17, 2018,
the court granted plaintiff's application to proceed
in forma pauperis (IFP).
court should dismiss, at the earliest practical time, certain
IFP actions that fail to state a claim. 28 U.S.C. §
1915(e)(2)(B)(ii). In determining the sufficiency of a pro se
complaint, the court must be mindful to construe it liberally
in favor of the plaintiff. Haines v. Kerner, 404
U.S. 519, 520-21 (1972); see also Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (in
assessing whether a complaint fails to plead a claim, the
court must accept all factual allegations as true);
Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336,
337-38 (9th Cir.1996) (allegations of material fact are taken
as true and construed in the light most favorable to
asserts diversity jurisdiction in his complaint. Complaint
(#2) at p.3. However, plaintiff alleges he is an Oregon
citizen and that defendant is an Oregon corporation with its
principal place of business in Oregon. Accordingly,
jurisdiction cannot be based on diversity. See 28
U.S.C. § 1332 (federal courts have original jurisdiction
in civil actions where amount in controversy exceeds $75, 000
and the action lies between citizens of different states).
the complaint liberally, it cannot be determined if plaintiff
has alleged a cognizable claim upon which to assert federal
question jurisdiction. See 28 U.S.C. § 1331
(federal courts have original jurisdiction of all civil
actions arising under the Constitution and laws of the United
States). As noted above, plaintiff alleges defendant failed
to manage his pain. The Emergency Medical Treatment and
Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, creates a
cause of action which makes hospitals strictly liable for
refusing to provide “essential emergency care because
of a patient's inability to pay.” Eberhardt v.
City of Los Angeles, 62 F.3d 1253, 1258 (9th Cir. 1995).
However, the complaint further alleges defendant
"ordered topical agents to be applied to areas of pain
which greatly increased the amount of pain experienced."
Complaint (#2) at p. 4. Thus, it appears plaintiff does not
allege defendant refused to provide care, but, rather, that
defendant provided plaintiff with negligent care. The EMTALA
does not create a federal remedy for medical negligence or a
duplicate state-law medical malpractice claim. Jackson v.
E. Bay Hosp., 980 F.Supp. 1341, 1348 (N.D. Cal. 1997).
plaintiff also alleges he experienced physical and
psychological turmoil by Providence Health Services inaction
during a January 2, 2018 emergency room visit. Complaint (#2)
at p.4. Thus, it is unclear if plaintiff can allege a claim
based on federal law. However, this allegation raises another
issue regarding this court's jurisdiction as plaintiff
alleges the case at bar is related to an "earlier claim
of the same event in Multnomah County Civil Circuit
(18cv3361)." Id. Under the Colorado
River doctrine, the presence of a concurrent state
proceeding permits the district court to dismiss, in certain
rare circumstances, a concurrent federal suit for reasons of
wise judicial administration. Colorado River Water
Conservation Dist. v. U.S., 424 U.S. 800, 818 (1976).
Given the dearth of allegations, the court cannot determine
whether this case should be dismissed in favor of any
concurrent state court proceeding even assuming a valid
EMTALA can be alleged.
the complaint lacks sufficient allegations demonstrating
jurisdiction, the complaint must be dismissed for failure to
allege subject matter jurisdiction.
addition, a complaint must comply with the pleading
requirements of the Federal Rules of Civil Procedure. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). Fed.R.Civ.P.
8(a)(2) requires a complaint contain “a short and plain
statement of the claim showing the pleader is entitled to
[w]hile a complaint ... does not need detailed factual
allegations, a plaintiff's obligation to provide the
“grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do, see Papasan v. Allain, 478 U.S. 265,
286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to relief
above the speculative level....
Bell Atlantic Corp., 550 U.S. at 555 (citations
omitted). Moreover, the Supreme Court has emphasized that,
when assessing the sufficiency of any civil complaint, a
court must distinguish factual contentions-which allege
behavior on the part of the defendant that, if true, would
satisfy one or more elements of the claim asserted-and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Ashcroft, 556 U.S. at 678. In short, “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its
face.” Id. As noted, the complaint fails to
identify a specific civil cause of action or to allege facts
demonstrating entitlement to relief based on any cause of
action over which this court has jurisdiction. Accordingly,
the complaint must be dismissed for failure to state a claim
complaint can be remedied by an amendment, a district court
may not dismiss the complaint with prejudice, but must permit
the amendment. Denton v. Hernandez, 504 U.S. 25, 34
(1992). Plaintiff is allowed 14 days from the date of this
order to file a complaint that complies with the requirements
of Fed.R.Civ.P. 8(a) and otherwise demonstrates subject
failure to file an amended complaint as ordered will result
in the dismissal of this action.
complaint is dismissed with leave to file an amended
complaint within 14 ...