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O'Grady v. Tacoma General Hospital

United States District Court, W.D. Washington, Tacoma

October 15, 2014



KAREN L. STROMBOM, Magistrate Judge.

Pro se Plaintiff Kristine O'Grady, proceeding in forma pauperis, brings this 42 U.S.C. § 1983 civil rights action. The Court recommends that this action be dismissed without prejudice prior to service for failure to state a claim.


In the original complaint filed in February 2014, Plaintiff alleges that on February 19, 2011, an unidentified doctor at TG injured her intestine during a liver biopsy. The next day, she declared a medical emergency at Washington Correction Center for Women (WCCW) because of pain in her stomach. An unidentified nurse told her that it was gas and that she should return to her cell. Dkt. 5, p. 3. The following day, on February 21, 2011, Plaintiff called another medical emergency and an unidentified nurse told her she did not know why Plaintiff was having pain and she sent Plaintiff back to her cell. On February 23, 2011, Plaintiff called a third medical emergency when she found blood in her stool. An unidentified nurse told Plaintiff it was gas. A couple of hours later, Plaintiff had a seizure and Doctor Anderson at WCCW called 911. Plaintiff alleges that she was sent to two different hospitals, that she had surgery, was given two blood transfusions and placed on medication. It is unclear where this treatment occurred. Plaintiff claims that she still has pain where her intestines were perforated, and that she has not yet been given hepatitis C treatment, although she also alleges that Doctor Walter (last name unclear in pleading) at WCCW told her that she did not need such treatment. Id.

Plaintiff seeks hepatitis C treatment and compensation for "pain and suffering, alone [sic] with medical bills." Id., at 4. Plaintiff states that there is a grievance procedure available at WCCW, but that she did not file any grievances concerning the facts relating to her complaint because she "was sick." Id., p. 2.

The Court declined to serve the original complaint because it did not state facts or name parties sufficient to state a claim under 42 U.S.C. § 1983. On February 26, 2014, the Court granted Plaintiff leave to amend and provided detailed guidance for Plaintiff's use in amending her complaint. Dkt. 6. When Plaintiff failed to respond, the undersigned recommended that this action be dismissed without prejudice. Dkt. 10. Thereafter, Plaintiff moved for a continuance and submitted an amended complaint. Dkts. 11 and 12. Although the amended complaint did not cure the deficiencies set forth in the Court's Order, it appeared from Plaintiff's letter that she was waiting on medical records that might enable her to cure the deficiencies in her complaint. Therefore, the District Judge declined to adopt the report and recommendation and re-referred the matter to the undersigned for further consideration. Dkt. 13. The District Judge also granted "Plaintiff a short continuance (until June 20, 2014) in order that she may review her medical records and file an amended complaint, if appropriate, that cures the deficiencies set forth in the Order to Show Cause. Dkt. 13, p. 2.

On June 19, 2014, Plaintiff requested an extension of time to file her amended complaint. Dkt. 15. The Court granted Plaintiff a two month extension, until August 22, 2014. Dkt. 16. On August 22, 2014, Plaintiff requested yet another extension. Dkt. 17. On September 2, 2014, the Court granted Plaintiff another extension, until October 2, 2014. Dkt. 18. The Court specifically noted that there would be no further extensions of Plaintiff's deadline. Id., p. 2 (emphasis in original). The Court also noted that the names of the nurses who allegedly failed to provide Plaintiff with necessary medical care should be readily available to her through records maintained by the DOC. She was also advised that she is not required to prove her claim at this stage in the litigation, but is required to name the parties she seeks to sue. Id., p. 1.

On October 2, 2014, Plaintiff submitted an amended complaint. She names Tacoma General Hospital a/k/a Multicare Medical Center, Tacoma General Hospital's Emergency Medical Care, and Washington Correction Center for Women's Health even though she was previously advised that these entities are not proper parties to a § 1983 suit. Plaintiff also names Mary Colter, Pam Saari, and Jeff Perry, who are identified as "at" the WCCW clinic. The amended complaint is otherwise devoid of any factual allegations regarding the identity of these individuals much less what they allegedly did or did not do to violate Plaintiff's constitutional rights. In addition, Plaintiff seeks another extension of time to file yet another complaint because she has not received all of her medical records. Dkt. 19.


The Court will dismiss a complaint at any time if the action fails to state a claim, raises frivolous or malicious claims, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). To sustain a § 1983 action, a plaintiff must show (a) that she suffered a violation of rights protected by the Constitution or created by federal statute, and (b) that the violation was proximately caused by a person acting under color of state or federal law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). In general, a § 1983 plaintiff must allege that a defendant's own conduct violated the plaintiff's civil rights because a defendant cannot be held liable solely on the basis of supervisory responsibility or position. See City of Canton v. Harris, 489 U.S. 378, 385-90 (1989); Monell v. Dep't of Social Servs., 436 U.S. 658, 691-94 (1978). Generally, private parties do not act under color of state law. Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).

A. Liability of Parties

(1) Washington Corrections Center for Women (WCCW)

Plaintiff was previously advised that her claims against WCCW are subject to dismissal. However, she again names the WCCW as a defendant. Neither states nor state officials acting in their official capacities are persons for purposes of 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 48, 71 (1989). This rule applies equally to state agencies. See Kaimowitz v. Board of Trustees of the Univ. of Ill., 951 F.2d 765, 767 (7th Cir.1991); Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir.1991). Because it is not a person within the meaning of 42 U.S.C. § 1983, Plaintiff has not stated a claim against the WCCW. Plaintiff's claim against the WCCW is also barred by the Eleventh Amendment.

The Eleventh Amendment to the United States Constitution bars a person from suing a state in federal court without the state's consent. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Natural Resources Defense Council v. California Dep't of Transportation, 96 F.3d 420, 421 (9th Cir.1996). Eleventh Amendment immunity extends to state agencies. Pennhurst State Sch. & Hosp. v. Holdeman, 465 U.S. 89, 101-102 (1984). Eleventh Amendment immunity is not automatically waived in actions brought under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332 (1979). Washington has not waived the protection ...

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