Stull v. Buetler

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BARRY JOE STULL, Plaintiff, v. JAKOB BUETLER, et al., Defendants.

No. 3:20-cv-2067-JR

United States District Court, D. Oregon

September 22, 2021

FINDINGS & RECOMMENDATION

Jolie A. Russo United States Magistrate Judge

Pro se plaintiff, Barry Stull, brings this action alleging a violation of the Americans with Disabilities Act (ADA) and his civil rights. Plaintiff's broadly targeted complaint asserts claims against 43 defendants involved in the treatment of his chronic pain condition from 2002 onward as well as various law enforcement and security personnel. Defendants filed 11 motions to dismiss which are addressed in order below.

A. Defendant Portland Adventists Medical Center

Plaintiff alleges that on May 26, 2020, he presented at the Adventist Health emergency department experiencing a flare of central pain syndrome where a doctor told him he had never heard of central pain syndrome. Complaint (ECF 1 at p. 40 41. Plaintiff “told staff he'd give them some time to access [his] medical records and would return shortly.” Id. at p. 41. When plaintiff returned, he alleges three security guards approached him told him to leave, and escorted him out of the building. Id.

Plaintiff alleges he returned to the Adventists emergency department a third time and told security guards he was a registered patient. However, one of the security guards issued plaintiff a “Trespass Exclusion Notice.” Plaintiff alleges he then again registered as a patient at the emergency department while the three guards “continued to crowd” him worsening his central pain syndrome. Id.

After again being admitted to the emergency department, plaintiff alleges he asked defendant security guard Mario Lara “Can I punch you in the nose now?” Plaintiff asserts Lara replied yes and so plaintiff punched Lara three times. Id. Plaintiff alleges the three security guards then took him down to the ground, handcuffed him, and took him outside where defendants Portland Police Officers Scherise Hobbs and Thomas Clark were informed that plaintiff punched Lara after obtaining permission. Id. at pp. 41-42. Plaintiff alleges he was then taken into custody, booked into the Multnomah County, Oregon Detention Center and did not receive treatment for his central pain syndrome. Id., at p. 42.

Defendant Adventists Medical Center moves to dismiss plaintiff's claims asserting plaintiff failed to plead a plausible claim under 42 U.S.C. § 1983 or the ADA, and for improper service.

1. 42 U.S.C § 1983

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

Thus, to state a claim for relief under Section 1983, plaintiff must allege first, the violation of a right secured by the Constitution or laws of the United States; and second, that the alleged deprivation was committed or caused by a person acting under color of law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, while plaintiff refers to his rights under the First, Fourth, Sixth, and Fourteenth Amendments, he fails to specifically allege what rights defendant Adventists violated. More importantly, plaintiff fails to identify any acts under color of law given that there are no facts alleged to suggest Adventists Medical Center or its employees are state actors.

Although private individuals are not state actors, such individuals can be liable for civil rights violations under Section 1983 if they have conspired or engaged in joint activity with state actors. Briscoe v. LaHue, 460 U.S. 325, 330 n. 7 (1983); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). Joint action with a state official can be found only if it is shown that the private individual acted in “willful collaboration” with a state actor to deprive the plaintiff of a federal right. Bacquie v. City of New York, 2000 WL 1051904 *1 (S.D.N.Y.2000). Plaintiff must allege more than “conclusory allegations” or “naked assertions” in this regard. See, e.g., id. Thus, pleadings asserting joint activity must allege “specific facts tending to show agreement and concerted action.” Id.

Moreover, stating a Section 1983 conspiracy claim against a private individual requires more than pleading in a conclusory fashion that the defendant “conspired” with state actors. Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). Rather, plaintiff must allege: “(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pacicca v. Stead, 456 Fed.Appx. 9, 12 (2d Cir. 2011). Merely providing information to law enforcement, even if that information is false or mistaken, does not render the supplier of information a state actor. E.g., Johns v. Home Depot U.S.A., Inc., 221 F.R.D. 400, 405 (S.D.N.Y. 2004).^[1] Because plaintiff does not allege a violation of his constitutional rights by defendant Adventist, under color of law, his Section 1983 claim against Adventists should be dismissed.

2. ADA

Title III of the ADA prohibits disability discrimination in places of public accommodation. 42 U.S.C. § 12182(a). An individual alleging discrimination under Title III must show that: (1) he is disabled as that term is defined by the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; (3) the defendant employed a discriminatory policy or practice; and (4) the defendant discriminated against the plaintiff based upon the plaintiff's disability by (a) failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiffs disability. Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004).^[2] If the plaintiff makes such a showing, the defendant must make the requested modification unless it proves that doing so would alter the fundamental nature of its business. Id.

To have standing to bring an ADA claim, plaintiff must show that he has suffered an injury in fact, that the injury is traceable to the challenged action of Adventist, and that the injury can be redressed by a favorable decision. Id. at 1081. Because the only remedy available under Title III of the ADA is injunctive relief, ^[3] plaintiff must also show a sufficient likelihood that he will again be wronged in a similar way. Id.

Plaintiff fails to allege facts to plausibly demonstrate violation of Title III of the ADA by defendant Adventist. Accordingly, the ADA claim against Adventist should also be dismissed.

3. Service

Defendant Adventists demonstrates that service upon it was accomplished personally by plaintiff. (ECF 15-1). However, service by plaintiff is improper. Fed.R.Civ.P. 4(c)(2) (Service may be accomplished by any person who is at least 18 years old and not a party).

“A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4.” Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir.1988). When service is challenged, the plaintiff bears the burden of establishing sufficiency of service under Fed.R.Civ.P. 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.2004)). “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984). “However, neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction without substantial compliance with Rule 4.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986), cert. denied, 484 U.S. 870 (1987) (citation omitted). Because plaintiff's service was improper, service should be quashed. However, the Court should give plaintiff an opportunity to cure the defect by service through a private process server. If plaintiff seeks to submit an amended complaint curing the defects noted above with respect to the claims against defendant Adventist, he must also properly accomplish service and, if necessary, seek an extension of time in which to do so. The Court should decline to dismiss the complaint on this basis at this time.

B. Defendant Clackamas County and Robert Stewart

Plaintiff alleges that on November 9, 2018, he was approached by an intoxicated man who attacked him; he then boarded a TriMet bus and took an “Honored Citizen” seat where another person threatened him because of his disability. Complaint (ECF 1) at p. 35. Plaintiff alleges he then “effected a citizen's arrest of defendant Kyle Dean Sheppard.” Id. Plaintiff alleges the TriMet driver, defendant Joseph Witt took no action while plaintiff waited for defendant Portland Police officer Daniel Nipper who also failed to investigate, but ultimately handcuffed plaintiff. Id. at p. 36.

Plaintiff alleges defendant Tigard Police Officer Gabriel Maldonado then transported plaintiff from the bus to the Multnomah County Detention Center. Plaintiff asserts he warned Maldonado that his central pain syndrome had been triggered but that Maldonado choked him with the seatbelt as he pulled plaintiff from the car and threw him to the ground. Id. at p. 37. Plaintiff alleges his injuries from the incident were so serious that defendant Clackamas County...