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Rosario v. Washington Memorial Hospital

United States District Court, Third Circuit

May 17, 2013

SHAUN ROSARIO, Plaintiff,
v.
WASHINGTON MEMORIAL HOSPITAL, Official capacity; MONONGAHELA VALLEY HOSPITAL, official capacity; HENRY HOLETS, JR., MD; official Capacity; OSCAR URREA, MD.; official Capacity; NURSE CAROL MAY, Individual capacity; NURSE STACY HOFFMAN, individual capacity; UNKNOWN MEDICAL DIRECTOR OF THE MONONGAHELA VALLEY HOSPITAL, individual capacity; SECURITY OFFICER ROBERT ASHBAUGH, individual capacity; SECURITY OFFICER WILLIAM SWICK, individual capacity, Defendants.

MEMORANDUM OPINION AND ORDER

JOY FLOWERS CONTI, District Judge.

The above-captioned prisoner civil rights complaint (the "Complaint") filed by plaintiff Shaun Rosario ("Plaintiff") was received by the Clerk of Court on December 10, 2012, and was referred to a United States Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72 of the Local Rules Of Court, regarding Magistrate Judges.

The magistrate judge in the Report and Recommendation (the "Report"), ECF No. 10, filed on March 6, 2013, recommended that Plaintiff's federal claims in the Complaint be dismissed for failure to state a claim pursuant to the screening provisions of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(e). Service was made on Plaintiff at his address of record. On March 20, 2013, Plaintiff filed his objections. ECF No. 11.

When objections are filed to a report and recommendation of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz , 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id . Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz , 447 U.S. at 674-75; see Mathews v. Weber , 423 U.S. 261, 275 (1976); Goney v. Clark , 749 F.2d 5, 7 (3d Cir. 1984).

At the outset, Plaintiff's assertion in his objections - that the correct standard for determining whether a complaint fails to state a claim is the standard that a court may not "dismiss a complaint for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief" - must be rejected. ECF No. 11 at 2. That standard is clearly incorrect. See Broyles v. Texas, 381 F.Appx. 370, 373 (5th Cir. 2010) (" Twombly abrogated the no set of facts' standard first articulated in Conley v. Gibson "); Fritz v. Charter Tp. of Comstock , 592 F.3d 718, 725 (6th Cir. 2010) (" see Twombly, 550 U.S. at 561-63, 127 S.Ct. 1955 (abrogating the no set of facts' minimal standard often cited from Conley by requiring more than a mere possibility of such a set of facts')").

I. THE DEFENDANTS DID NOT ACT UNDER COLOR OF LAW

The magistrate judge in the Report noted that, while Plaintiff baldly alleged that the defendants acted under color of state law, he alleged no facts to support that conclusion. ECF No. 10 at 8, 9. In the Report Plaintiff was instructed that he could allege, in his objections, any additional facts that he may possess in order to show that the defendants acted under color of state law. ECF No. 10 at 9 n.1.

Plaintiff did not take the opportunity to allege such facts; rather, the main response of Plaintiff to the finding in the Report that there was no action under color of state law alleged in the Complaint was:

The Plaintiff was under the impression that by being detained by hospital personnel for the specific purpose of turning him over to law enforcement authorities, that he was subjected to an unlawful seizure and unlawful search under the Fourth Amendment. Therefore, plaintiff believed the defendants (Hospitals and its employees) would fall under the states actors' doctrine, which would allow the suit to precede [sic] under 42 U.S.C. 1983 when he wrote the complaint.

ECF No. 11 at 5.

The only allegation in the foregoing quote that comes close to an allegation of fact is that unspecified "hospital personnel" detained Plaintiff for the specific purpose of turning him over to law enforcement authorities. While Plaintiff did not specify to which of the two hospital defendants he was referring, this court will assume he meant to refer to both of the hospital defendants.

A. Lack of Allegations Concerning The Mon Valley Hospital Defendants Acting Under Color of Law.

There are several problems with Plaintiff's argument with respect to the Mon Valley Hospital Defendants as defined in the Report, ECF No. 10 at 2 ( i.e., Mon Valley Hospital, Dr. Henry Holets Jr., Dr. Oscar Urrea, [1] Nurse Carol May, Nurse Stacy Hoffman, Security Officer Robert Ashbaugh, Security Officer William Swick and the Medical Director at Mon Valley Hospital). First, the only Mon Valley Hospital Defendants who plausibly could be said to have detained Plaintiff at any point in the Complaint's narrative are the two security guards, defendants Robert Ashbaugh and William Swick (collectively, the "two Security Guard Defendants"), who subdued Plaintiff after Plaintiff attacked Nurse Carol May and Nurse Hoffman (collectively, the "two Nurse Defendants") and after Plaintiff threatened the Nurse Defendants and the Security Guard Defendants. Hence, the Complaint must be dismissed as against all the Mon Valley Hospital Defendants other than the two Security Guard Defendants in light of the assertions in the Complaint that refer only to the two Security Guard Defendants having "detained" Plaintiff for the sole purpose of turning him over to the police.

Even as to the two Security Guard Defendants, Plaintiff's allegation that they detained him for the sole purpose of turning him over to police would not be sufficient to show plausibility that they acted under color of state law. At most, the two Security Guard Defendants made a "citizen's arrest" of Plaintiff for assaulting the two Nurse Defendants as well as the two Security Guard Defendants. A "citizen's arrest" is simply insufficient to transform their acts into actions taken under color of state law. See, e.g., Bass v. Parkwood Hosp. , 180 F.3d 234, 243 (5th Cir. 1999) ("As in the case of a citizen's arrest or a warehouseman's sale, the statutory authorization of private acts does not transform such conduct into state action: The statutes authorizing or constraining these private activities may or may not be constitutional [citation]; the activities themselves remain private [citations].'"); Spencer v. Lee , 864 F.2d 1376, 1379 (7th Cir. 1989) (en banc) ("the analogy that Spencer seeks to draw to arrest is inapt, since a citizen's arrest is not subject to challenge under section 1983" because there is no action under color of state law); Carey v. Continental Airlines, Inc. , 823 F.2d 1402, 1404 (10th Cir. 1987) ("If Gilbert himself made a citizen's arrest' of Carey, as Carey ...


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