Florence v. Peterson

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 6, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
GEORGE E. FLORENCE,
Plaintiff - Appellant, No. 07-1275
v. (D. Colorado)
DAWN M. PETERSON; RICHARD C. (D.C. No. 06-cv-178-REB-PAC)
GAMUAC; JUDY PAVLICH;
ANGELA R. YORK; LYNN M.
DECKER; JORGE L. SALLABERRY;
JOANNE SMILEY; PARKVIEW
MEDICAL CENTER; JANE DOE;
JOHN DOE,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Plaintiff George E. Florence is an inmate at the Federal Correctional
Institution in Florence, Colorado. He appeals the dismissal of his civil-rights
claims against defendants who provided him medical care. According to his
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
complaint, on August 16, 2004, he slipped and fell on a wet floor at the prison.
The fall caused him to lose feeling and movement in his legs, and he was
transported to the Parkview Medical Center in Pueblo, Colorado, for treatment.
Dissatisfied with the treatment that he received there, he filed suit in the United
States District Court for the District of Colorado, alleging 13 claims against four
doctors, four registered nurses, one John Doe (apparently a hospital
recordkeeper), and the Parkview Medical Center. Ten of the claims alleged that
the defendants, by being deliberately indifferent to his medical needs, had
violated his Eighth Amendment right to be free from cruel and unusual
punishment. Mr. Florence also alleged violations of his First, Fourth, Fifth,
Ninth, and Fourteenth Amendment rights. He styled his action as arising both
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), and under 42 U.S.C. § 1983.
The district court initially dismissed three of Mr. Florence’s claims as
frivolous. The remaining claims were later dismissed because Mr. Florence had
not alleged any facts indicating that any of the defendants was acting under color
of state law. Mr. Florence alleged only that each defendant, except John Doe,
was medically licensed in Colorado and “thereby at all relevant times . . . acting
under color of Colorado law.” R. Doc. 6 at 2, 10, 11. As to John Doe,
Mr. Florence alleged only that he was employed within the State of Colorado by
Parkview Medical Center. The court, citing Sumpter v. Harper, 683 F.2d 106,
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108 (4th Cir. 1982), held that an actor’s being medically licensed by a state,
without more, is insufficient to establish action under color of state law, as
required by § 1983.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
dismissal of a complaint for failure to state a claim. See Sutton v. Utah State Sch.
for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). We accept all the
well-pleaded allegations of the complaint as true and construe them in the light
most favorable to the plaintiff. See id. We will affirm the dismissal only if the
complaint “lacks ‘enough facts to state a claim to relief that is plausible on its
face.’” Trentadue v. Integrity Comm., 501 F.3d 1215, 1236 (10th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). We affirm the
district court’s dismissal of all Mr. Florence’s claims.
Mr. Florence has not pleaded facts that suggest that any defendant was a
government actor of some sort, state or federal, as required by both Bivens, see
Dry v. United States, 235 F.3d 1249, 1255 (10th Cir. 2000), and § 1983, see Lugar
v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). The only allegations of
government action that Mr. Florence has made are that one defendant was
employed in Colorado and that the other defendants were medically licensed by
Colorado. This is insufficient to establish the requisite nexus between the state
and private conduct. We have previously held that even when a private hospital is
subject to “intricate state regulation,” the hospital’s action is not state action.
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Ward v. St. Anthony Hosp., 476 F.2d 671, 675 (10th Cir. 1973). The plaintiff must
show the involvement of the state “in the activity causing the alleged injury.” Id.See also Pino v. Higgs, 75 F.3d 1461, 1466–67 (10th Cir. 1996) (upholding the
grant of summary judgment to licensed doctor at private hospital on the ground
that following the procedure established by statute for involuntary commitment of
a patient did not constitute state action); Scott v. Hern, 216 F.3d 897, 907 (10th
Cir. 2000) (submission by licensed private physician of affidavit in support of
involuntary-commitment proceedings is not state action).
Aside from the merits of his complaint, Mr. Florence challenges the
judgment on the ground that it was improper for the district-court clerk, rather
than the judge himself, to enter the judgment. Federal Rule of Civil Procedure
58(a)(2)(A)(iii), however, required the clerk to enter the judgment because
Mr. Florence had been denied all relief. The version of the rule effective on
June 20, 2007, provided: “[U]nless the court orders otherwise, the clerk must,
without awaiting the court’s direction, promptly prepare, sign, and enter the
judgment when . . . the court denies all relief.” Mr. Florence further contends that
allowing a clerk to enter the judgment violates his constitutional rights to have an
Article III judge or a United States Magistrate Judge decide his case, but he has
cited no authority for the proposition nor elaborated on his constitutional
argument. In any event, federal district judges signed the orders dismissing
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Mr. Florence’s various claims, so it is clear that they, and not the clerk,
adjudicated the case.
We grant Mr. Florence’s application to proceed in forma pauperis. He is
reminded that he must continue to make partial payments until the entire filing fee
has been paid.
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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