Awad v. Dr. Birbenk ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ABDULHADI NAIM AWAD, Case No. 22-cv-00665-WHO (PR) 7 Plaintiff, v. ORDER OF DISMISSAL 9 DR. BIRBENK, 10 Defendant. 11 2 Plaintiff Abdulhadi Naim Awad’s 42 U.S.C. § 1983 suit against Dr. Birbenk, a 5 13 || physician who operated on Awad’s hand and the sole remaining defendant in this action, S 14 || must be dismissed because Birbenk is a private, not a state, actor. According to Awad’s 3 15 || allegations, the operation occurred while Birbenk was employed at Queen of the Valley a 16 || Hospital, which is a private Catholic hospital. (Addendum to Complaint, Dkt. No. 12 at = 17 2.) Because Birbenk was a private, not a state, actor he cannot be held liable under section 18 || 1983. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (a private individual does not act 19 || under color of state law, an essential element of a section 1983 action). 20 Accordingly, this federal civil rights action is DISMISSED without prejudice to 21 || Awad pursuing his claims in state court. The Clerk shall enter judgment in favor of 22 || defendant, and close the file. 23 IT IS SO ORDERED. 24 || Dated: June 2, 2023 YV.Qe 2 AM H. ORRICK 26 United States District Judge 27 28