1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JARVIS EDUARDO MCMILLAN, Case No. 24-cv-04655-TLT

8 Plaintiff, ORDER OF DISMISSAL v. 9

10 HIGHLAND HOSPITAL DOCTORS AND NURSES, 11 Defendant.

12 13 Plaintiff, a state prisoner, filed a pro se complaint against Highland Hospital doctors and 14 nurses under

. ECF 1. The complaint is now before the Court for screening 15 pursuant to pursuant to 28 U.S.C. § 1915A. For the reasons identified below, the complaint is 16 dismissed. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi,

989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus,

(2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal,

, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice.

6 To state a claim under

, a plaintiff must allege two essential elements: (1) 7 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 8 alleged violation was committed by a person acting under the color of state law. See West v. 9 Atkins,

(1988). 10 B. Plaintiff’s Allegations 11 Plaintiff alleges that, at a time when he was not incarcerated, he was shot in the shoulder 12 and taken to Highland Hospital on May 22, 2021 for treatment. He was put to sleep by unknown 13 methods and after being put to sleep was raped by doctors and nurses who played with his private 14 area. He has been told that there is camera footage of this occurrence, which was placed on 15 Instagram to destroy his character. He seeks 100 million dollars in damages. 16 Plaintiff does not state a constitutional claim. Because he was not incarcerated at the time 17 of the incident, the doctors and nurses at the hospital were not treating him under the color of state 18 law. He was a private citizen at the time, and The Due Process Clause does not generally confer 19 upon the state affirmative duties of care and protection with respect to private citizens. See 20 DeShaney v. Winnebago County Dep’t of Social Services,

(1989). A 21 constitutional duty to protect a private citizen only arises where the state has placed the individual 22 in danger, see Kennedy v. City of Ridgefield,

(9th Cir. 2006), or where the 23 state has a special relationship with the private citizen. See DeShaney,

. When 24 the state takes a person into its custody and holds him there against his will, the Constitution 25 imposes upon the state a corresponding duty to assume some responsibility for his safety and 26 general well-being. See DeShaney,

. It is the state’s affirmative act of restraining 27 the individual’s freedom to act on his own behalf—through incarceration, institutionalization, or 1 protections of the Due Process Clause. See

Because plaintiff explains the event happened “in 2 || society,” the state did not have any affirmative duty to protect him from danger. A tort claim for 3 battery or any sort of medical malpractice brought by a resident of California against another 4 resident of California should be brought in state, not federal, court. 5 CONCLUSION 6 For the foregoing reasons, the case is dismissed for failure to state a claim upon which 7 relief may be granted. The Clerk shall terminate any pending motions, enter judgment, and close 8 || the file. 9 IT IS SO ORDERED. 10 Dated: December 12, 2024 11

TRINA L: PSON 13 United States District Judge

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