United States District Court, D. Montana, Butte Division
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND
Morris, United States District Court Judge
Randall Nett, M.D., (“Dr. Nett”) has moved under
Federal Rule of Civil Procedure 12(b) to dismiss all claims
asserted against him in pro se Plaintiff Maureen Blum's
Amended Complaint for lack of subject matter jurisdiction,
failure to state a claim upon which relief can be granted,
and insufficient service of process. United States Magistrate
Judge Jeremiah Lynch issued Findings and Recommendations in
this matter. (Doc. 17.) Judge Lynch recommended that the
Court grant Dr. Nett's motion to dismiss. No objections
have been filed.
Court has reviewed Judge Lynch's Findings and
Recommendations for clear error. McDonnell Douglas Corp.
v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th
Cir. 1981). The Court finds no error.
nurse anesthetist, developed ulcerative skin lesions on her
left hand three weeks after providing anesthesia services to
a surgical patient at Barrett Hospital and Healthcare in
December 2012. (Doc. 4.) The patient clearly had visible open
sores covering his body, according to Blum.
Nett is a Commander with the United States Public Health
Service Commissioned Corps, employed with the Centers for
Disease Control and Prevention (CDC) in its National
Institute for Occupational Safety and Health. (Doc. 5.) Dr.
Nett was assigned by the CDC to Montana to perform services
as a Career Epidemiology Field Officer when the incidents
giving rise to Blum's lawsuit took place. Id.
notified Dr. Nett that she had developed lesions similar to
those on the surgical patient. Blum asked Dr. Nett to provide
her with information relating to the patient, including the
patient's medical records. Blum claims that Dr. Nett
failed to obtain the patient's medical records or take
any action to prevent the spread of an infectious disease.
Blum alleges that Dr. Nett failed to comply with
Montana's public health laws, and thereby depriving her
of her rights under 42 U.S.C. § 1983.
Lynch determined that Blum's Amended Complaint failed to
state a claim upon which relief can be granted and that the
claims lack subject matter jurisdiction.
Motion to Dismiss for Failure to State a Claim
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Navarro v. Block, 250
F.3d 729, 732 (9th Cir. 2001). “Dismissal under Rule
12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege (1) the violation of a federally protected right by
(2) a person acting under color of state law. See e.g.
Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006);
Balistreri v. Pacifica Police Dep't., 901 F.2d
696, 699 (9th Cir. 1990).
relies on state statutes in her Amended Complaint that do not
provide a basis for claiming the deprivation of any federally
protected right. It is well established that § 1983 does
not allow relief for alleged violations of state law or state
constitutional rights. See e.g. Maizner v. Hawaii, Dept.
of Educ., 405 F.Supp.2d 1225, 1240 (D. Haw. 2005)
(citing Moreland v. Las Vegas Metro.Police Dept, 159
F.3d 365, 371 (9th Cir. 1998)). Because fails to state a
claim against Dr. Nett under § 1983 due to her failure
to allege the violation of a federally protected right.
Subject Matter Jurisdiction
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) challenges the court's subject matter
jurisdiction over the claims asserted. Blum's § 1983
claim fails for lack of subject matter jurisdiction. Dr. Nett
served as a federal employee who was acting under color of
federal law, rather than state law, at the time of the events
in question. Section 1983 does not apply to claims that
assert a deprivation of rights by federal officials or
employees acting under color of ...