Marshall v. Meadows (Full Text)

Case 2:10-cv-01286-JAM-DAD Document 36 Filed 03/16/11 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GRANVILLE H. MARSHALL, JR.,

Plaintiff,

No. CIV S-10-1286 JAM DAD PS

HAL MEADOWS, et al.,

Defendants.

ORDER

This matter came before the court on September 24, 2010, for hearing of

defendants’ motions to strike plaintiff’s exhibits, dismiss plaintiff’s complaint and for a more

definite statement. Plaintiff, proceeding pro se, appeared on his own behalf. J. Hawken

Flanagan, Esq. appeared on behalf of defendant Meadows and Jennifer Pruski appeared on behalf

of defendant Banner Lassen Medical Center. Oral argument was heard, and the motions were

taken under submission.

Upon consideration of the briefing on file, the parties’ arguments at the hearing,

and the entire file, the court will grant defendants’ motion to dismiss. However, in light of the

plaintiff’s pro status and for the reasons set forth below, the court will also grant plaintiff leave to

amend his complaint to attempt to allege a cognizable claim.

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PLAINTIFF’S CLAIMS

Plaintiff, a medical doctor, alleges that beginning in 2008, defendant Banner

Lassen Medical Center (“Banner Lassen”) and defendant Hal Meadows, a medical doctor

employed by Banner Lassen, began discriminating against plaintiff based on his race. Plaintiff

alleges that the defendants refused to give him an application for “hospital privileges,” treated

plaintiff’s patients with “intentional[] negligent treatment,” and, on some occasions, refused to

treat plaintiff’s patients. (Compl. (Doc. No. 1) at 4.)1

Sometime in January of 2010, defendant Meadows in the course and scope of his

employment with defendant Banner Lassen attempted to injure plaintiff’s reputation and ability

to practice medicine by altering the medical records of one of plaintiff’s patients and by

providing false information about plaintiff to the patient and the patient’s family. Specifically,

plaintiff alleges that defendant Meadows contacted the wife of one of plaintiff’s patients and told

her that plaintiff was unstable, incompetent, was poisoning her husband and referred to plaintiff

as “the pot doctor.” (Id.)
2

PROCEDURAL HISTORY

On May 25, 2010, plaintiff filed this complaint alleging claims pursuant to 42

U.S.C. §§ 1981, 1983, 1985(3) and Title VII of the Civil Rights Act of 1964, as well as several

state law causes of action. (Id. at 1, 5-14.) On June 24, 2010, counsel for defendant Banner

Lassen filed a motion to strike the exhibits attached to plaintiff’s complaint (Doc. No. 6) and a

motion to dismiss plaintiff’s complaint. (“Def. Banner Lassen’s Mot. to Dismiss” (Doc. No. 10

& 11.)) On June 28, 2010, counsel for defendant Meadows filed a motion to dismiss and a

motion for a more definite statement. (“Def. Meadows’ Mot. to Dismiss” (Doc. No. 17.))

Plaintiff filed an opposition to defendants’ motions on September 3, 2010. (“Pl.’s Opp’n.” (Doc.

Page number citations such as this one are to the page number reflected on the court’s
1
CM/ECF system and not to page numbers assigned by the parties.

The two paragraphs reflect the full extent of plaintiff’s factual allegations.

Case 2:10-cv-01286-JAM-DAD Document 36 Filed 03/16/11 Page 3 of 18

No. 26.)) On September 8, 2010, defendant Meadows joined in defendant Banner Lassen’s

motion to strike. (Doc. No. 27.) Defendants Banner Lassen and Meadows filed replies to

plaintiff’s opposition on September 13, 2010. (Doc. No. 30 (“Def. Banner Lassen’s Reply”);

Doc. No. 32 (“Def. Meadows’ Reply”).)

ARGUMENTS OF THE PARTIES

Defendants seek dismissal of plaintiff’s complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) on the grounds that he has failed to state any cognizable claim.

Specifically, defendants advance the following arguments. Plaintiff has failed to allege that the

defendants acted under the color of state law and has failed to allege all the elements necessary to

support a cause of action under 42 U.S.C. § 1985(3). Plaintiff cannot state a cognizable Title VII

claim for employment discrimination because plaintiff and defendants did not have an

employment relationship. Finally, plaintiff has failed to allege facts sufficient to support each of

his state law claims.

In his opposition to the pending motion, plaintiff explains in greater detail the

alleged history and relationship between himself and the defendants. Plaintiff states that this

conflict with defendants began in 2002 when he enjoyed hospital privileges at Banner Lassen

Medical Center. Plaintiff alleges that at that time the nursing staff at Banner Lassen refused to

carry out his orders because of his race. Plaintiff complained to the Nursing Board and the Board

of Health.

In 2004 plaintiff filed suit against Banner Lassen, the City of Susanville and

Lassen County. Summary Judgment was granted in favor of the City of Susanville and Lassen

County, while defendant Banner Lassen and plaintiff reached a settlement agreement. In 2007

plaintiff filed another civil action against Banner Lassen, claiming that the hospital and Michelle

Joy, a co-defendant in the 2007 action, communicated with a potential employer resulting in

plaintiff being denied an employment opportunity.

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Plaintiff claims that on August 31, 2009, one of his patient’s was transferred from

plaintiff’s office to Banner Lassen Medical Center Emergency Room by ambulance but was

denied medical care by Banner Lassen because he was plaintiff’s patient. Similarly, plaintiff

alleges that on September 3, 2009, another patient arrived at the Banner Lassen Medical Center

Emergency Room and was denied care because he was plaintiff’s patient.

Defendants’ argue in reply that plaintiff’s opposition to the pending motion to

dismiss does not address the fatal lack of sufficient factual allegations or legal deficiencies of his

complaint. Moreover, defendants argue that plaintiff cannot cure those pleading defects by

providing the factual details of prior lawsuits in an effort to re-litigate those matters.

LEGAL STANDARDS APPLICABLE TO DEFENDANTS’ MOTION

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the

complaint. North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983).

Dismissal of the complaint, or any claim within it, “can be based on the lack of a cognizable

legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). See also Robertson v. Dean Witter

Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). Thus, the court may dismiss a complaint or

any claim within it as frivolous where the claim is based on an indisputably meritless legal theory

or where the factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327

(1989). The critical inquiry is whether a claim, even if inartfully pleaded, has an arguable legal

and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin v. Murphy,

745 F.2d 1221, 1227 (9th Cir. 1984). As the Supreme Court has explained, in order to state a

claim on which relief may be granted, the plaintiff must allege “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In determining whether a complaint states a claim, the court accepts as true the

material allegations in the complaint and construes those allegations, as well as the reasonable

inferences that may be drawn from them, in the light most favorable to the plaintiff. Erickson v.

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Pardus, 551 U.S. 89, 94 (2007); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg.

Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242,

1245 (9th Cir. 1989). For purposes of a motion to dismiss, the court also resolves doubts in the

plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court may disregard allegations in the

complaint that are contradicted by facts established by exhibits attached to the complaint.

Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). In addition, the court need

not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of

fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

I. 42 U.S.C. § 1983 & The Fourteenth Amendment

ANALYSIS

Plaintiff alleges that this action was “brought pursuant to” 42 U.S.C. § 1983 and

the Fourteenth Amendment. (Compl. (Doc. No. 1.) at 1-2.) Plaintiff does not, however, provide

any additional factual allegations or analysis with respect to either § 1983 or the Fourteenth

Amendment and does not cite either with respect to any specific claim he has alleged in his

complaint. In this regard, plaintiff’s claim is so vague and conclusory that it could be properly

dismissed on that basis alone. See Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th

Cir. 1984) (pro se plaintiff’s conclusory allegations unsupported by facts properly dismissed by

district court).

Morever, 42 U.S.C. § 1983 provides as follows:

Every person who, under color of [state law] … subjects, or causes
to be subjected, any citizen of the United States … to the
deprivation of any rights, privileges, or immunities secured by the
Constitution … shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

(1976).

“To make out a cause of action under section 1983, plaintiff[] must plead that (1)

the defendants acting under color of state law (2) deprived plaintiff[] of rights secured by the

Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).

“[F]or state involvement with a private entity to confer jurisdiction under 42 U.S.C. § 1983 the

involvement must be with the specific activity of which a party complains.” Watkins v. Mercy

Medical Center, 520 F.2d 894, 896 (9th Cir. 1975) (citing Chrisman v. Sisters of St. Joseph of

Peace, 506 F.2d 308, 313 (9th Cir. 1974). Further, “where the impetus for the discrimination is

private, the State must have ‘significantly involved itself with invidious discrimination,’ . . . in

order for the discriminatory action to fall with the ambit of the constitutional prohibition.”

Chrisman, 506 F.2d at 313 (quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972).

Likewise, the Fourteenth Amendment to the United States Constitution provides,

among other protections, that “no State” shall deprive any person of life, liberty, or property

without due process of law, or deny to any person within the State’s jurisdiction the equal

protection of the laws. U.S. CONST . AMEND . XIV § 1. “Only when the state becomes ‘to some

significant extent’ involved in the conduct of the affairs of a private institution can that conduct

be classified as state action and thus run afoul of the Fourteenth Amendment.” Ascherman v.

Presbyterian Hospital of Pac. Medical Center, Inc., 507 F.2d 1103, 1104 (9th Cir. 1974) (citing

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

Defendants argue that plaintiff has failed to state a cognizable claim under § 1983

or the Fourteenth Amendment because he has failed to allege that the defendants were acting

under color of state law. In his opposition, plaintiff argues that defendant Banner Lassen was

acting under color of state law because the State of California issued it a license to operate a

medical facility. Similarly, plaintiff argues that defendant Meadows was acting under color of

state law because the State of California issued him a license to practice medicine. Plaintiff

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contends that without these licenses the defendants would have been unable to “damage” him.

Plaintiff also argues that the defendants receipt of state and federal funds render them state

actors. (Def. Banner Lassen’s Mot. to Dismiss (Doc. No. 11) at 10-11; Pl.’s Opp’n. (Doc. No.

26.) at 4-5.)

The Ninth Circuit Court of Appeals has specifically rejected an argument similar

to that advanced by plaintiff, holding that:

The mere receipt of Hill-Burton funds , even coupled with the
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alleged tax exemptions, is not a sufficient connection between the
state and the private activity of which appellant complains to make
out state action. The appellant cites us to no regulation, and our
independent research reveals none, that authorizes the State of
California or the federal government to participate in the
appointment of medical doctors to the staff of Presbyterian
Hospital. Since there is no state action, the termination of
appellant’s staff privileges need not conform to the constitutional
commands of the Fourteenth Amendment.

Ascherman, 507 F.2d at 1105. See also Watkins, 520 F.2d at 896 (affirming district court’s

finding that it lacked jurisdiction over a plaintiff’s § 1983 claim against a defendant hospital for

refusing to renew plaintiff’s staff privileges where the plaintiff did not assert that the state had

any connection to the hospital’s decision, beyond the receipt of Hill-Burton funds).

Here, plaintiff has not alleged facts establishing that the State of California had

any significant involvement with the defendants’ alleged actions about which plaintiff complains.

In this regard, it appears that any alleged discrimination was the result of merely private conduct.

The Fourteenth Amendment and § 1983 exclude from their reach “merely private conduct, no

matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

50 (1999). While plaintiff has attempted to address this issue by asserting in his opposition that

the defendants were acting under color of state law because they were issued state licenses to

practice medicine, he cites no authority in support of the proposition that their status as medical

The Hill-Burton Act provided federal funds to states for the construction and
3
modernization of medical facilities. 42 U.S.C. § 291.

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license holders transforms all of their conduct into state action and the court is aware of no such

authority. See Blum v. Yaretsky, 457 U.S. 991, 1007-12 (1982) (that nursing home decisions to

discharge or transfer patients are made by State-licensed physicians or that the state heavily

regulates the nursing home industry does not render those decisions “state action” for purposes

of § 1983 or the Fourteenth Amendment); see also Aasum v. Good Samaritan Hospital, 542 F.2d

792, 795 (9th Cir. 1976) (that State Board of Health inspects private hospitals does not render

hospital’s refusal to allow a licensed physician to use its clinical laboratory facilities state action);

Ouzts v. Maryland Nat. Ins. Co., 470 F.2d 790, 793 (9th Cir. 1972) (“Merely acting under a state

license is not state action within the meaning of the civil rights acts.”); Carter v. Norfolk

Community Hospital Ass’n., Inc., 761 F.2d 970, 974 (4th Cir. 1985) (hospital’s termination of

physician’s professional privileges did not involve state action and § 1983 action brought by

physician should be dismissed for failure to state a claim); Fridman v. City of New York, 183 F.

Supp. 2d 642, 651 (S.D.N.Y. 2002) (“[T]hat the State of New York licenses the physicians does

not render them subject to Constitutional limitations. Such a rule would render essentially all

medical care state action and would bring all medical malpractice actions into the purview of 18

U.S.C. § 1331 (federal question jurisdiction).”)

For the reasons stated above, plaintiff has failed to state a cognizable claim for

relief under either 42 U.S.C. § 1983 or the Fourteenth Amendment, and those claims must

therefore be dismissed.

II. 42 U.S.C. § 1985(3)

Plaintiff also alleges that the defendants violated his rights under 42 U.S.C. §

1985(3). Specifically, plaintiff alleges that the defendants:

conspired to deprive plaintiff, either directly of indirectly, of the
equal protection of the law or of equal privileges and immunities
afforded under the laws of the United States and the laws of the
state of California.

(Compl. (Doc. No. 1) at 5.) Plaintiff alleges no additional facts in support of this claim, aside

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from incorporating the allegations already set forth above. Accordingly, this claim too is so

vague and conclusory that it could be properly dismissed on that basis alone.

Morever, to state a cognizable claim for a violation of § 1985(3), a plaintiff must

allege four elements:

(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of this conspiracy; (4) whereby a person is
either injured in his person or property or deprived of any right or
privilege of a citizen of the United States.

Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citing United States

Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 828-29 (1983)). See

also Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir. 1998). To establish the second element of a §

1985(3) claim, the plaintiff must identify a legally protected right and allege facts showing that

the deprivation of the right was “motivated by ‘some racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspirators’ action.’ ” Sever, 978 F.2d at 1536

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). “ ‘[T]he plaintiff must be a member

of a class that requires special federal assistance in protecting its civil rights.’ ” McCalden v.

California Library Ass’n, 955 F.2d 1214, 1223 (9th Cir. 1990) (quoting Gerritsen v. de la Madrid

Hurtado, 819 F.2d 1511, 1519 (9th Cir. 1987)).

Here, plaintiff alleges, in mere conclusory manner, that the defendants

discriminated against him “based on his race.” (Compl. (Doc. No. 1) at 4.) However, in the

allegations of his complaint, plaintiff does not identify his race nor the race of any other

individual, nor does plaintiff allege facts supporting the inference that defendants’ actions were

motivated by racial animus. Plaintiff also fails to specify how the defendants’ alleged actions

deprived him of a legally protected right. Plaintiff merely states vague and conclusory

allegations that the defendants deprived him of “the equal protection of the law,” of “equal

privileges and immunities” afforded him under the law, and “of rights and privileges afforded to

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citizens” of the United States and the State of California. (Id. at 5.) Moreover, plaintiff’s

conspiracy claim is not supported by an allegation of any specific act of the defendants’ that

could be construed as an act in furtherance of the alleged conspiracy. Instead, plaintiff again

merely states his vague and conclusory allegation that the defendants “conspired.” (Id.) See

Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (“A mere

allegation of conspiracy without factual specificity is insufficient.”)4

For the reasons stated above, plaintiff has failed to state a cognizable claim for

relief under 42 U.S.C. § 1985(3) and that claim must also be dismissed.

III. 42 U.S.C. § 1981

Plaintiff claims that the defendants violated his rights under 42 U.S.C. § 1981.

Specifically, plaintiff alleges that defendant Meadows, acting as an agent for defendant Banner

Lassen, refused to provide plaintiff an application for hospital privileges because of plaintiff’s

race. (Compl. (Doc. No. 1) at 13.) Plaintiff also alleges that the defendants discriminated against

him by prohibiting him “from seeing his patients at Banner Lassen Medical Center.” (Id.)

Plaintiff alleges that defendant Meadows was an employee of defendant Banner Lassen,
4
a corporation, and was at all times “acting in the course and scope of such agency employment.”
(Compl. (Doc. No. 1) at 2-3.) It has been held that a corporation cannot conspire with its agents
who are acting within the scope of their employment. Nelson Radio & Supply Co. v. Motorola,
Inc., 200 F.2d 911, 914 (5th Cir. 1952); see also Harvey v. Fearless Farris Wholesale, Inc., 589
F.2d 451, 455, n. 7 (9th Cir. 1978) (“Two or more individual officers, directors or agents within a
single corporation, acting on behalf of that corporation, are considered incapable of conspiring
with each other or with their corporation . . . .”) While the Ninth Circuit has expressly declined
to decide this issue, (see Portman v. County of Santa Clara, 995 F.2d 898, 910 (9th Cir. 1995),
other circuit courts have held that this so-called “intracorporate conspiracy doctrine” applies with
equal force to § 1985 claims. See Hoefer v. Fluor Daniel, Inc., 92 F. Supp.2d 1055, 1057-58
(C.D. Cal. 2000) (noting that the Second, Fourth, Sixth, Seventh and Eighth Circuits have so
held, while the First and Third Circuits have refuse to apply the doctrine to § 1985 cases alleging
conspiracies to discriminate based on the basis of race or sex). Federal district courts within
California are split on the issue as well. See Mory v. City of Chula Vista, No. 07CV0462, 2008
WL 360449, at *6 (S.D. Cal. 2008); Hoefer, 92 F. Supp.2d at 1059. But see Washington v. Duty
Free Shoppers, 696 F. Supp. 1323, 1325 (N.D. Cal. 1988); Rebel Van Lines v. City of Compton,
663 F. Supp. 786, 792 (C.D. Cal. 1987). In addition, there are recognized exceptions to the
application of the doctrine. See Webb v. County of Trinity, No. Civ. S-10-0012 LKK/CMK,
2010 WL 4628097, at *5 (E.D. Cal. Nov. 4, 2010). In any event, the court need not resolve the
question here, in light of the grounds for dismissal discussed above.

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42 U.S.C. § 1981 provides as follows:

(a) Statement of equal rights-All persons within the jurisdiction of
the United States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed
by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no
other.

(b) “Make and enforce contracts” defined-For purposes of this
section, the term “make and enforce contracts” includes the
making, performance, modification, and termination of contracts,
and the enjoyment of all benefits, privileges, terms, and conditions
of the contractual relationship.

(c) Protection against impairment-The rights protected by this
section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.

42 U.S.C. § 1981.

However, § 1981 is not “a general proscription of racial discrimination . . . it

expressly prohibits discrimination only in the making and enforcement of contracts.” Patterson

v. McLean Credit Union, 491 U.S. 164, 176 (1989) (emphasis added). See also Georgia v.

Rachel, 384 U.S. 780, 791 (1966) (“The legislative history of the 1866 Act clearly indicates that

Congress intended to protect a limited category of rights”).

In this respect, [§ 1981] prohibits discrimination that infects the
legal process in ways that prevent one from enforcing contract
rights, by reason of his or her race, and this is so whether this
discrimination is attributed to a statute or simply to existing
practices. It also covers wholly private efforts to impede access to
the courts or obstruct nonjudicial methods of adjudicating disputes
about the force of binding obligations, as well as discrimination by
private entities, such as labor unions, in enforcing the terms of a
contract.

Patterson, 491 U.S. at 177. “Any claim brought under § 1981, therefore, must initially identify

an impaired ‘contractual relationship,’ § 1981(b), under which the plaintiff has rights.”

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). “[A] plaintiff cannot state a claim

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under § 1981 unless he has (or would have) rights under the existing (or proposed) contract that

he wishes ‘to make and enforce.’ ” (Id. at 479-80.)

Here, plaintiff’s complaint is devoid of any allegations regarding a contractual

relationship between the parties. Instead, plaintiff has merely alleged that the defendants
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“refused plaintiff an application for hospital privileges based on plaintiff’s race.” (Compl. (Doc.

No. 1) at 13.) Presented with only this bare, unexplained declaration that plaintiff was denied an

application for hospital privileges, it is left unclear how such an application implicated a

contractual relationship. See generally Ennix v. Stanten, 556 F. Supp.2d 1073, 1082-84 (N.D.

Cal. 2008) (examining whether plaintiff doctor had a contractual relationship with defendant

medical center for purposes of stating a claim pursuant to § 1981 and concluding that the

allegations of such a relationship in that case defeated the medical center’s summary judgment

motion); Janda v. Madera Community Hospital, 16 F. Supp. 2d 1181, 1186-87 (E.D. Cal. 1998)

(employment contract between physician and hospital supported by consideration found to exist).

The bare allegations of plaintiff’s complaint in this regard, fail to state a

cognizable claim for relief under 42 U.S.C. § 1981 and that claim must, therefore, be dismissed

as well.

IV. Title VII

Plaintiff also asserts a cause of action for violation of his rights under Title VII.

Specifically, plaintiff alleges that defendant Meadows, acting as an agent for defendant Banner

Lassen, refused to provide plaintiff an application for hospital privileges because of his race.

(Compl. (Doc. No. 1) at 13.) In addition, plaintiff alleges that the defendants discriminated

against him by denying plaintiff “from seeing his patients at Banner Lassen Medical Center.”

(Id.) Finally, plaintiff claims that defendant Meadows told plaintiff’s patients that plaintiff was

Under California contract law, “[i]t is essential to the existence of a contract that there
5
should be: (1) Parties capable of contracting; (2) Their consent; (3) A lawful object; and, (4) A
sufficient cause or consideration.” CAL. CIV . CODE § 1550.

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unstable, incompetent, was poisoning them and referred to plaintiff as the “pot doctor.” (Id. at

14.)

Title VII makes it unlawful for an employer to “discriminate against any

individual with respect to [her] compensation, term, conditions, or privileges of employment,

because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). A person is discriminated

against through disparate treatment “when he or she is singled out and treated less favorably than

others similarly situated on account of race.” McGinest v. GTE Service Corp., 360 F.3d 1103,

1121 (9th Cir. 2004) (quoting Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988)).

“One of Congress’ objectives in enacting Title VII was ‘to achieve equality of

employment opportunities . . . .’” Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir.

1999) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971)). “Consequently, there

must be some connection with an employment relationship for Title VII protections to apply.”

Id. (quoting Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir. 1980)). “Title VII

protects employees, but does not protect independent contractors.” Id. (citing Lutcher, 633 F.2d

at 883 and Mitchell v. Frank R. Howard Memorial Hosp., 853 F.2d 762, 766 (9th Cir. 1988)).

Defendants argue that plaintiff has not alleged that an employment relationship

existed between plaintiff and the defendants. Defendant Banner Lassen notes that plaintiff filed a

claim with the Equal Employment Opportunity Commission (“EEOC”) based on the allegations

found in his complaint and that the EEOC responded by stating: “The EEOC is closing its file on

this charge for the following reason: Other (briefly state) No jurisdiction.” (Def. Banner Lassen’s

Mot. to Dismiss (Doc. No. 11) at 21-22.) Defendant Banner Lassen asserts that the EEOC did

not have jurisdiction over plaintiff’s allegations because plaintiff did not have an employment

relationship with Banner Lassen. (Id. at 22.) In opposing defendants’ motion to dismiss plaintiff

does not dispute defendants’ argument but instead argues that there “is no purer form of

employment discrimination than denying an applicant an application for employment.” (Pl.’s

Opp’n. (Doc. No. 26.) at 6.)

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As noted above, plaintiff has failed to allege in his complaint that “hospital

privileges” would have established an employment relationship between himself and the

defendants. See generally Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1126

(9th Cir. 2008) (finding doctor who received compensation from defendant that retained control

over doctor’s activities was an employee); Mitchell v. Frank R. Howard Memorial Hosp., 853

F.2d 762, 766-67 (9th Cir. 1988) (finding plaintiff radiologist alleged sufficient facts to establish

plaintiff was an employee and not an independent contractor for purpose of Title VII). But see

Wojewski v. Rapid City Regional Hosp., Inc., 450 F.3d 338, 343-44 (8th Cir. 2006) (doctor

challenging termination of hospital privileges was an independent contractor, not an employee);

Shah v. Deaconess Hosp., 355 F.3d 496, 500 (6th Cir. 2004) (doctor with surgical privileges was

not an employee for Title VII purposes); Alexander v. Rush North Shore Medical Center, 101

F.3d 487, 494 (7th Cir. 1996) (finding plaintiff doctor was an independent contractor precluding

Title VII action against defendant hospital that revoked his privileges); Diggs v. Harris Hospital –

– Methodist, Inc., 847 F.2d 270, 272-73 (5th Cir. 1988) (no employee-employer relationship

between physician and hospital for purposes of Title VII claim challenging termination of

privileges) . Nor has plaintiff addressed defendants’ argument on this issue in his opposition to

the pending motion to dismiss,

Even assuming plaintiff’s request for hospital privileges would have established

an employment relationship between himself and defendants, plaintiff has failed to alleges facts

necessary to establish a prima facie case of racial discrimination “by showing (i) that he belongs

to a racial minority; (ii) that he applied and was qualified for a job for which the employer was

seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his

rejection, the position remained open and the employer continued to seek applicants from

persons of complainant’s qualifications.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). See also Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). Nor has

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Case 2:10-cv-01286-JAM-DAD Document 36 Filed 03/16/11 Page 15 of 18

plaintiff in his complaint alleged facts that would, alternatively, establish discriminatory animus.

See Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003).

For these reasons, plaintiff has failed allege facts establishing a claim for relief

under Title VII and that claim must be dismissed.

V. State Law Claims

Under the analysis set forth above, plaintiff’s federal claims will be dismissed.

Because there would then be no federal claims remaining, this court would decline to exercise

supplemental jurisdiction over plaintiff’s various state law claims. See 28 U.S.C. § 1367(c) (3)

(The district courts may decline to exercise supplemental jurisdiction over a claim . . . if – the

district court has dismissed all claims over which it has original jurisdiction”). “‘In the usual

case in which all federal-law claims are eliminated before trial, the balance of factors . . . will

point toward declining to exercise jurisdiction over the remaining state-law claims.’” Acri v.

Varian Associates, Inc., 114 F.3d 999, 1000-01 (9th Cir. 1997) (quoting Carnegie-Mellon

University. v. Cohill, 484 U.S. 343, 350, n. 7 (1988)). See also Gini v. Las Vegas Metropolitan

Police Dept., 40 F.3d 1041, 1046 (9th Cir. 1984) (same). Considerations of comity weigh

heavily in favor of declining to exercise supplemental jurisdiction since all of plaintiff’s

remaining claims arise under California law. See Gibbs v. United Mine Workers of America,

383 U.S. 715, 726 (1966) (“Needless decisions of state law should be avoided [.]”) Moreover,

federal judicial economy is promoted by declining to exercise supplemental jurisdiction. See

Otto v. Heckler, 802 F.2d 337, 338 (9th Cir.1986) (“The district court, of course, has the

discretion to determine whether its investment of judicial energy justifies retention of

jurisdiction.”)

For all of these reasons, pursuant to 28 U.S.C. § 1367(c)(3) the court would

decline to exercise supplemental jurisdiction over plaintiff’s remaining state law claims in the

event all his federal claims were dismissed.

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Case 2:10-cv-01286-JAM-DAD Document 36 Filed 03/16/11 Page 16 of 18

VI. Leave to Amend

The undersigned has carefully considered whether plaintiff may be able to cure

the defects noted above in a first amended complaint. In making this assessment, the

undersigned has taken into consideration plaintiff’s pleadings and all briefing filed in connection

with the pending motion. “Valid reasons for denying leave to amend include undue delay, bad

faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818

F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv.

Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that, while leave to amend shall be freely

given, the court does not have to allow futile amendments). However, when evaluating the

failure to state a claim, the complaint of a pro se plaintiff may be dismissed “only where ‘it

appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which

would entitle [her] to relief.’” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (quoting

Haines v. Kerner, 404 U.S. 519, 521 (1972). See also Weilburg v. Shapiro, 488 F.3d 1202, 1205

(9th Cir. 2007) (“Dismissal of a pro se complaint without leave to amend is proper only if it is

absolutely clear that the deficiencies of the complaint could not be cured by amendment.”)

(quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988)).

Here, because of the vague and conclusory nature of plaintiff’s claims the court

cannot say that it appears beyond doubt that leave to amend would be futile with respect to any of

the federal claims addressed above. Plaintiff’s original complaint will therefore be dismissed,
6

and he will be granted leave to file an amended complaint. Plaintiff is cautioned however that, if

Plaintiff is however cautioned that, should he elect to file an amended complaint, he
6
must carefully review this order to determine if any or all of his federal claims are indeed
meritless before raising any such claim in an amended complaint. The court is particularly
mindful that defendants have argued that plaintiff cannot cure the defects in his original
complaint simply by attempting to re-litigate prior lawsuits in which either settlements were
reached or the defendants prevailed. Those arguments are well-taken. Plaintiff is cautioned to
heed them in determining whether he can allege facts stating a cognizable claim in any amended
complaint he considers filing with this court. If he determines that no cognizable federal claim
can be stated, plaintiff should seek to voluntarily dismiss this action pursuant to Federal Rule of
Civil Procedure 41(a).

Case 2:10-cv-01286-JAM-DAD Document 36 Filed 03/16/11 Page 17 of 18

he elects to file an amended complaint, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, ___U.S.___, ___,129 S. Ct. 1937, 1949 (2009). “While legal conclusions can

provide the complaint’s framework, they must be supported by factual allegations.” Id. at 1950.

Those facts must be sufficient to push the claims “across the line from conceivable to

plausible[.]” Id. at 1951 (quoting Twombly, 550 U.S. at 557).

Plaintiff is reminded that any amended complaint he elects to file must be

complete in itself without reference to prior pleadings that have been dismissed. See Local Rule

220. The court cannot refer to prior pleadings in order to make plaintiff’s first amended

complaint complete. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Moreover, plaintiff’s

first amended complaint must contain factual allegations describing the conduct and events

which underlie his claims against each defendant named in the pleading.

CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that:

1. Defendant Banner Lassen’s June 24, 2010 motion to strike (Doc. No. 6) is

denied as moot;

2. Defendant Banner Lassen’s June 24, 2010 motion to dismiss (Doc. No. 10) is

granted;

3. Defendant Meadows’ June 28, 2010 motion for a more definite statement

(Doc. No. 17) is denied as moot;

4. Defendant Meadows’ June 28, 2010 motion to dismiss (Doc. No. 17) is

granted;

5. Plaintiff’s complaint (Doc. No. 1) is dismissed;

6. Plaintiff is granted thirty days from the date of service of this order to file a

first amended complaint that complies with the requirements of the Civil Rights Act, the Federal

Case 2:10-cv-01286-JAM-DAD Document 36 Filed 03/16/11 Page 18 of 18

Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

docket number assigned to this case and must be labeled “Amended Complaint;” failure to file an

amended complaint in accordance with this order will result in a recommendation that this action

be dismissed without prejudice; and

7. If Defendant Meadows or Defendant Banner Lassen is named as a defendant in

any amended complaint plaintiff elected to file, that defendant shall respond to the pleading

within thirty days after it is filed and served.

DATED: March 15, 2011.

DAD:6
orders.pro se/marshall1286.MTD