Opinion
3:19-cv-01733-AC
06-14-2021
JAMES MICHAEL MURPHY, M.D., Plaintiff, v. THOMAS J. WILHELM, M.D.; and HOOD RIVER COUNTY DISTRICT ATTORNEY OFFICE, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, United States Magistrate Judge.
Introduction
Plaintiff James M. Murphy (“Murphy”), brings this action against Defendants Thomas J. Wilhelm (“Wilhelm”), and the Hood River County District Attorney Office (“HRDA”) for violations of 5 U.S.C. § 552a (“Privacy Act”), 18 U.S.C. § 241 (“Conspiracy Against Rights Act”), 42 U.S.C. § 1983 (“Section 1983”), 31 U.S.C. § 3729 (“False Claims Act”), the Health Insurance Portability and Accountability Act (“HIPAA”), Pub. L. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 42 U.S.C.), Oregon Revised Statute (“ORS”) § 165.800 (“Identity Theft Statute”), and ORS § 192.553 (“Policy for Protected Health Information”). Currently before the court is Defendant Thomas J. Wilhelm's Rule 12(b)(6) Motion to Dismiss (ECF No. 9). For the following reasons, the court recommends that Wilhelm's motion to dismiss be granted, without leave to amend.
Background
The relevant facts appear in Murphy's Complaint (ECF No. 1), which the court liberally construes in his favor. On July 15, 2016, Murphy was arrested on charges of careless driving and driving under the influence. (Compl. and Summons (“Compl.”), ECF No. 1 at 1.) During the investigation and arrest, Murphy suffered chest pain and was transferred to the Providence Hood River Hospital emergency department. (Id.) During evaluation in the emergency department, the nursing staff drew Murphy's blood for diagnostic testing. (Id. at 2.) A Hood River Police Department (“HRPD”) officer also requested, and obtained, a blood sample for testing. (Id.) Murphy alleges that both the diagnostic and HRPD blood samples were obtained illegally, and when Murphy confronted the HRPD officer, the officer verbally abused Murphy and his wife and “became physically aggressive and slammed [Murphy's] head into a metal cabinet.” (Id.)
Wilhelm was the physician who evaluated Murphy's condition in the emergency department. (Id.) Murphy alleges that Wilhelm was aware that Murphy did not consent to any blood alcohol testing. (Id.) Additionally, Murphy alleges Wilhelm conspired with law enforcement to provide the results of the diagnostic blood test to law enforcement without authorization, and that those results were disclosed as evidence at his arraignment. (Id. at 2-3.) Murphy also alleges that by ordering the diagnostic test, Wilhelm violated the standard of care for evaluating chest pain (also alleging the “20-30” minute wait time, prior to assessment, is a violation of care). (Id. at 2.) Murphy admits that the diagnostic results Wilhelm obtained did not establish that he was over the legal blood alcohol limit for operating a motor vehicle, but he alleges that the diagnostic result showed a greater blood alcohol concentration than the blood sample obtained by police and sent to the crime lab. (Id. at 3.)
On July 16, 2016, Murphy was charged with Making an Improperly Executed Right Turn, Failure to Drive Within a Lane, and Careless Driving. (Decl. Jessica Spooner Supp. Def. HRDA's Mot. Summ. J. (“Spooner Decl.”), ECF No. 25, Ex. 2 at 1.) Murphy was arraigned in August 2016. (Compl. at 8.) At the arraignment, HRDA presented Murphy's diagnostic blood alcohol test results as evidence, which Murphy alleges created an “unfair prosecutorial advantage” and forced him “to enter a [guilty] plea” “under duress.” (Id. at 3.) On September 26, 2016, Murphy pleaded guilty to Careless Driving, resulting in a $260 traffic fine. (Spooner Decl., Ex. 2 at 1.) The other charges were dismissed. (Id.)
Murphy filed this lawsuit on October 30, 2019, seeking $800,000 in damages. (Id. at 8.) Murphy subsequently filed a motion to amend his pleading (Pl.'s Mot. Am. Compl., ECF No. 48), which the court addresses concurrently in a separate Findings and Recommendation. Defendant Wilhelm timely filed a motion to dismiss. (Def. Thomas J. Wilhelm's Rule 12 Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 9.) Defendant HRDA timely filed a motion for summary judgment (Def. Hood River County DA's Off.'s Mot. for Summ. J., ECF No. 24), which the court addresses concurrently in a separate Findings and Recommendation.
Legal Standards
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. When a plaintiff's complaint pleads facts that are “merely consistent with” a defendant's liability, the plaintiff's complaint “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. at 557 (brackets omitted).
The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017). The pleading standard under Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also Fed.R.Civ.P. 8(a) (2). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal citations omitted); Kwan, 854 F.3d at 1096. A complaint also does not suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 557.
Finally, courts generally have a duty to construe pro se pleadings liberally and “afford the [pro se] plaintiff the benefit of any doubt.” Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988); accord. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”) (internal citations and quotations omitted). This duty applies to both pro se complaints and pro se motions. Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925 (9th Cir. 2003).
This rule of liberal construction is “particularly important” in civil rights cases. Hendon v. Ramsey, 528 F.Supp.2d 1058, 1073 (S.D. Cal. 2007) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (stating that because “Iqbal incorporated the Twombly pleading standard and Twombly did not alter the courts' treatment of pro se filings, ” the court must continue to construe pro se filings liberally). When giving liberal construction to a pro se civil rights complaint, however, the court “‘may not supply essential elements of the claim that were not initially pled.'” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)); Calhoun v. Portland Police Bureau, No. 3:17-cv-01020-MO, 2018 WL 1413969, at *1 (D. Or. Mar. 21, 2018). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268. The court should allow a pro se plaintiff leave to amend his complaint, “unless the pleading could not possibly be cured by the allegation of other facts.” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (internal citations and quotations omitted). In addition, a pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623-24 (9th Cir. 1988); Ferdik, 963 F.2d at 1261. Because Murphy is proceeding pro se, his pleadings and filings are construed liberally and are afforded the benefit of any doubt.
Discussion
I. Conspiracy Against Rights Act, 18 U.S.C. § 241
Defendant Wilhelm moves to dismiss Murphy's Conspiracy Against Rights Act claim as a matter of law because no civil claim exists under the statute. The Conspiracy Against Rights Act is a criminal statute and provides no private right of action. Agnew v. Compton, 239 F.2d 226, 230 (9th Cir. 1956), overruled on other grounds by Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962). “[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”); Robertson v. U.S. ex rel. Watson, 560 U.S. 272, 278 (2010) (Roberts, J., dissenting) (“Our entire criminal justice system is premised on the notion that a criminal prosecution pits the government against the governed, not one private citizen against another.”). Moreover, the penalty for violating § 241 is a criminal penalty (i.e., fine, imprisonment, or both). 18 U.S.C. § 241 (1996). Because § 241 is a criminal statute and fails to provide a private right of action, Murphy's Conspiracy Against Rights Act claim should be dismissed.
II. Violation of Civil Rights, 42 U.S.C. § 1983
Defendant Wilhelm moves to dismiss the Section 1983 claims against him on two independent grounds. First, Wilhelm argues that Murphy's factual allegations even if true, fail to support a cognizable claim for relief. Second, Wilhelm argues Murphy's Section 1983 claim is time-barred.
A. Claim for Relief
To the extent that Murphy attempts to assert a Section 1983 claim premised on Wilhelm's alleged HIPAA violation by impermissibly disclosing Murphy's health information and ordering unnecessary diagnostic tests (Compl. at 2-5), his claim fails as a matter of law. “HIPAA itself provides no private right of action.” Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). Accordingly, Murphy's HIPAA claim should be dismissed.
To the extent that Murphy's Section 1983 claim is premised on Wilhelm's alleged conspiracy with HRDA (Compl. at 2-5), his claim fails as a matter of law. Conspiracy itself is not a constitutional tort under Section 1983. Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012). “[Conspiracy] does not enlarge the nature of the claims asserted by the plaintiff, as there must always be an underlying constitutional violation.” Id.; see Cassettari v. Nevada County, Cal., 824 F.2d 735, 739 (9th Cir. 1987) (“The insufficiency of these allegations to support a [S]ection 1983 violation precludes a conspiracy claim predicated upon the same allegations.”); Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (“[M]ere proof of a conspiracy is insufficient to establish a [S]ection 1983 claim.”) (quoting Hampton v. Hanrahan, 600 F.2d 600, 622 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754, (1980)).
“To state a (conspiracy) claim under § 1985(3), a plaintiff must first show that the defendants conspired-that is, reached an agreement-with one another.” Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 1868, (2017). And a plaintiff must show that the “intent to deprive [the plaintiff] . . . must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Murphy's conclusory allegations that Wilhelm and HRDA conspired to deprive him of his Fourth Amendment rights are insufficient to state a claim for relief. Murphy also fails to allege the requisite invidious animus against a suspect class under § 1985(3).
To the extent that Murphy's Section 1983 claim is premised on Wilhelm's alleged private conduct (Compl. at 2-5), his claim fails as a matter of law. Section 1983 “provides a mechanism for enforcing individual rights.” Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). To prevail on a Section 1983 claim, a plaintiff must establish that: (1) the defendants were persons acting under color of state law; and (2) their conduct deprived the plaintiff of a right or privilege secured by the Constitution or federal statute. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
“Like the state-action requirement of the Fourteenth Amendment, the state-action element of 42 U.S.C. § 1983 excludes from its coverage ‘merely private conduct, however discriminatory or wrongful.'” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 305- 306 (2001) (Thomas, J., dissenting) (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); United States v. Price, 383 U.S. 787, 794 n.7 (1966) (“In cases under § 1983, ‘under color' of law has consistently been treated as the same thing as the ‘state action' required under the Fourteenth Amendment.”). The Supreme Court has “used many different tests to identify state action, [and] they all have a common purpose . . . to determine whether an action ‘can fairly be attributed to the State.'” Brentwood Acad., 531 U.S. at 306 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). “That a private entity performs a function which serves the public does not make its acts state action.” Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).
Liberally construing Murphy's allegations, the court understands Murphy to allege that Wilhelm acted under color of state law to deprive Murphy of a right or privilege secured by the Constitution or federal statute. (Id. at 2-5.) Murphy's allegation that Wilhelm obtained an illegal blood sample is separate from the alleged illegal blood sample obtained by HRPD. (Id. at 2-3.) Specifically, Murphy alleges Wilhelm conspired with HRDA to obtain a diagnostic blood sample against Murphy's wishes and then disclosed those diagnostic results to HRPD “for the sole purpose of making the result[s] public, ” and to HRDA for use as “surprise evidence at the arraignment.” (Id.(alteration in original).) To support his claim, Murphy alleges Wilhelm “engaged in a conversation with the arresting officer.” (Id. at 1.) Murphy further alleges he went untreated for “a [sic] least 20-30 minutes” after arrival at the emergency department. (Id. at 2.) And Murphy alleges he was waiting to be seen by the physician when the nurse drew his blood and that Wilhelm “finally came to . . . assess the chest discomfort . . . 5-10 min [sic] after the [blood sample] had been obtained.” (Id.) Finally, Murphy alleges he had a conversation with Wilhelm to “cooperate only as much as legally necessary” and that Wilhelm documented that conversation. (Id.) Taking all of Murphy's allegations as true, Wilhelm's conduct cannot fairly be attributed to the state. The bare assertions in the complaint are unsupported by any specific factual allegations, and thus are insufficient to state that Wilhelm's alleged conduct constituted state action or that he was acting under color of state law. Because Murphy fails to establish Wilhelm acted under color of state law, Section 1983 does not apply.
In Murphy's Response to Motion for Summary Judgment (ECF No. 51), Murphy alleges violations of the Fourth, Fifth, Ninth, and Fourteenth Amendments. Because Murphy fails to establish Wilhelm acted under color of state law, he may not invoke on Section 1983.
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Karim-Panahi, 839 F.2d at 623-24; Ferdik, 963 F.2d at 1261. Here, the deficiencies in Murphy's complaint cannot be cured because Wilhelm is not a state actor and Murphy's § 1983 claim against Wilhelm fails as a matter of law. Further, the claim is barred by Oregon's two-year statute of limitations for personal injury actions.
B. Statute of Limitations
Even if Murphy could establish Wilhelm acted under color of state law, the claim would be time-barred. While there is no statute of limitations contained within the language of Section 1983, the Supreme Court “requires courts to borrow and apply to all § 1983 claims the one most analogous state statute of limitations.” Owens v. Okure, 488 U.S. 235, 240 (1989); see Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989) (“Oregon's two-year statute of limitations for personal injury actions applies to actions under 42 U.S.C. § 1983.”); see also Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (“For actions under 42 U.S.C. § 1983, courts apply the forum state's statute of limitations for personal injury actions, along with the forum state's law regarding tolling, including equitable tolling, except to the extent any of these laws is inconsistent with federal law.”); ORS 12.110. Federal law determines when a cause of action accrues and the statute of limitations begins to run for a Section 1983 claim. Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986). A federal claim accrues when the plaintiff “‘knows or has reason to know of the injury which is the basis of the action.'” Id. (quoting Trotter v. Int'l Longshoreman's & Warehouse Union, 704 F.2d 1141, 1143 (9th Cir. 1983).
Murphy's complaint stems from his July 2016 arrest and subsequent testing, his August 2016 arraignment, and September 2016 plea hearing. Though Murphy alleges that his investigative efforts were thwarted through obfuscation (Compl. at 6-7), Murphy certainly knew about his injury at the time of his plea on September 26, 2016. Murphy filed this lawsuit on October 30, 2019, over three years past the date of injury. Therefore, Murphy's claim is untimely and should be dismissed with prejudice, because it is clear that he cannot allege facts to cure the deficiencies set forth above and leave to amend therefore is not warranted.
III. Oregon's Privacy Act
Murphy refers to “Oregon's Privacy Act” only in the Complaint's caption and later refers to the Privacy Act generally and the “Federal Privacy Rule and Oregon statutes.” (Id. at 1, 3, 5- 7.) It is unclear whether Murphy intends to pursue a state law claim under the Policy for Protected Health Information, ORS 192.553, or pursue a Privacy Act claim pursuant to 5 U.S.C. § 552a., or pursue a claim under the HIPAA Privacy Rule, 45 C.F.R. § 164.500. It is unclear whether Murphy intends to pursue a state law claim under the Policy for Protected Health Information, ORS 192.553, pursue a Privacy Act claim pursuant to 5 U.S.C. § 552a, or pursue a claim under the HIPAA Privacy Rule, 45 C.F.R. § 164.500. Therefore, the court examines all three statutes.
It is unclear whether Murphy alleges Wilhelm violated ORS 192.553 through the alleged conspiracy with HRDA, or that Wilhelm independently violated the statute. In either case, the statutory duty of confidentiality does not create “a new private right of action against a healthcare provider.” ORS 192.571. Therefore, the common-law breach of duty of confidentiality is the only theory available to Murphy. Here, where the legislature did not specifically provide a statute of limitations, “claims are governed by the two-year statute of limitations contained in ORS 12.110(1).” Bradbury v. Teacher Standards & Practices Com'n, 328 Or. 391 (1999). Therefore, any claim arising under ORS 192.553 is time-barred and should be dismissed with prejudice.
Furthermore, a civil action for violation of the Privacy Act must be brought “within two years from the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5) (2014). Therefore, any claim arising under the Privacy Act claim is time-barred and should be dismissed with prejudice.
Finally, to the extent Murphy's claim arises under the HIPAA Privacy Rule, “HIPAA itself provides no private right of action.” Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). “Enforcement of HIPAA rests solely with the Secretary of Health and Human Services.” Frye v. Ayers, No. 99-0628, 2009 WL 1312924, at *3 (May 12, 2009) (citing Logan v. Dep't of Veterans Affairs, 357 F.Supp.2d 149, 155 (2004)). Pursuant to 45 C.F.R. § 160.402, the Secretary determines if the covered entity or business associate has violated a provision. 45 C.F.R. § 160.402(a) (2013). Moreover, the penalty for violating § 164.500 is a criminal penalty (i.e., fine, imprisonment, or both). 42 U.S.C. 1320d-6 (2010). Murphy correctly identifies the penalty for violating the Privacy Rule (Compl. at 5), but overlooks that the statute provides no private right of action. Because HIPAA fails to provide a private right of action, Murphy's Privacy Rule claim should be dismissed with prejudice.
IV. False Claims Act, 31 U.S.C. § 3729
Wilhelm moves to dismiss Murphy's claims under the False Claims Act because he has not adequately pleaded a violation or followed the procedural requirements of the qui tam provisions. As part of his False Claims Act violation, Murphy alleges Wilhelm falsified aspects of the physical exam relating to services not provided and services not medically necessary. (Compl. at 6.) Murphy also includes HIPAA violations and medical malpractice claims as part of his False Claims Act violations, including Wilhelm's ordering of an unnecessary diagnostic lab test, conducting a fraudulent physical exam, and intentionally omitting information in his medical record. (Id.)
Pursuant to Rule 9, “[i]n alleging fraud . . . a party must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). “Rule 8 does not empower [the] respondent to plead the bare elements of his cause of action . . . and expect his complaint to survive a motion to dismiss.” Iqbal, 556 U.S. at 687. Here, Murphy has not met the heightened pleading requirements for fraud cases. Furthermore, although the False Claims Act allows for a private right of action, Murphy has not pleaded that he took the necessary steps to initiate such a claim under § 3729. See 31 U.S.C. § 3730 (2010). Therefore, Murphy's claims related to the False Claims Act should be dismissed with prejudice. V. State Law Claims The Identity Theft Statute, ORS 165.800, is a criminal statute that does not provide a private right of action, and to the extent that Murphy asserts a claim under the statute it should be dismissed as a matter of law. ORS 165.800. It also appears Murphy cites the Oregon Identity Theft Statute not to bring a claim under that statute, but to contextualize Wilhelm's alleged obfuscation of Murphy's independent investigation into the matter. (Compl. at 3.) Murphy alleges Wilhelm “delayed [this lawsuit] through false claims, ” because Wilhelm “claimed identity theft . . . regarding the printing and public disclosure of the lab result.” (Id. at 3, 6.) Liberally construing Murphy's allegations, the court understands Murphy to cite ORS 165.800 to address why his claims should not be time-barred. (Id. at 6-7.)
As discussed above, the allegations in Murphy's Compliant stem from Wilhelm's alleged conspiracy with HRPD and HRDA to obtain the diagnostic blood test to use as evidence at his August 2016 arraignment, and September 2016 plea hearing. Though Murphy alleges that his investigation efforts were thwarted by Wilhelm (Compl. at 6-7), Murphy knew about his injury at the time of his plea in September 2016. “The ‘date of discovery' on which the . . . statute of limitations begins to run is the date when a plaintiff knows or reasonably should know of an allegedly unauthorized . . . disclosure.” Aloe Vera of Am., Inc. v. U.S., 699 F.3d 1153, 1159 (9th Cir. 2012). Here, Murphy is not entitled to tolling because the record is clear that Murphy knew the date of alleged unauthorized disclosure at the time of his plea.
On August 1, 2016, at the arraignment, HRDA presented Murphy's diagnostic blood alcohol test results as evidence, which Murphy alleges created an “unfair prosecutorial advantage” and forced him “to enter a [guilty] plea” “under duress.” (Compl. at 3.) On September 26, 2016, Murphy pleaded guilty to Carless Driving. (Spooner Decl., Ex. 2 at 1.) Murphy knew about his injury at the time of his plea on September 26, 2016, which precludes tolling of his claim. Furthermore, any relief sought under the Identity Theft Statute is not cognizable because ORS 165.800 provides no private right of action.
To the extent that Murphy asserts a medical malpractice claim resulting from Wilhelm's ordering and charging of unnecessary medical diagnostic tests, and omissions in the medical record, his claim is time-barred. (Id. at 3.) Pursuant to ORS 12.110, medical malpractice claims in Oregon are subject to a two-year statute of limitations. ORS 12.110(4). Furthermore, ORS 12.110(1) provides if “an action is based upon fraud . . . the limitations shall be deemed to commence only from the discovery of the fraud[.]” ORS 12.110(1). As previously discussed, Murphy's Complaint stems from his July 2016 arrest and subsequent testing, his August 2016 arraignment, and September 2016 plea hearing. Though Murphy alleges that his investigation efforts were thwarted by Wilhelm (Compl. at 6-7), Murphy clearly knew about his injury at the time of his plea in September 2016. He filed this lawsuit, however, more than three years past the latest date of his injury. Therefore, Murphy's medical malpractice claim is untimely and should be dismissed with prejudice.
Finally, under 28 U.S.C. § 1331, “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 (1980). The Supreme Court made it clear that “Congress has given the lower federal courts jurisdiction to hear . . . only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Tr. for Southern Cal., 463 U.S. 1, 27-28 (1983); see also Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (“A court may decline to exercise supplemental jurisdiction over related state-law claims once it has dismissed all claims over which it has original jurisdiction.” (internal citations and quotations omitted)). Therefore, if all federal claims are dismissed, the remaining state-law claims should be dismissed with prejudice.
VI. Futility
Dismissal without leave to amend is proper if the proposed amendment would be futile. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“[A] district court may dismiss without leave where a plaintiff's proposed amendments would fail to cure the pleading deficiencies and amendment would be futile.”); see Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth a standard of review explaining that a district court acts within its discretion to deny leave to amend a complaint if the amendment would be futile); see also Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (addressing two-year statute of limitations for § 1983 claims in California). The Ninth Circuit proceeds cautiously in deciding whether to approve a district court's decision to deny pro se litigants leave to amend. See, e.g., Lucas v. Dep't of Corr., 66 F.3d 245, 248-49 (9th Cir. 1995) (per curiam) (holding that dismissal of a pro se complaint without leave to amend is proper only if it is clear that the deficiencies cannot be cured by amendment or after the pro se litigant is given an opportunity to amend). But a district court does not abuse its discretion in denying leave to amend where amendment would be futile. Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir.1990) (per curiam)).
As discussed at length, Murphy's claims under the Conspiracy Against Rights Act, HIPAA, and False Claims Act fail as a matter of law because those statutes do not provide a private cause of action. Murphy's remaining claims are time-barred. Therefore, Murphy's claims should be dismissed with prejudice and without leave to amend because amendment cannot overcome the legal deficiencies and untimeliness of his claims; leave to amend is futile.
Murphy seeks to amend his Complaint (ECF No. 1) to correct the spelling of “Welhelm” to “Wilhelm, ” and add a defendant, Deputy District Attorney Timothy Wong. (See Pl.'s Mot. Am. Compl., ECF No. 48.) The court addresses Murphy's motion concurrently in a separate Findings and Recommendation.
Recommendation
For the reasons stated above, Defendant Thomas J. Wilhelm's Rule 12 Motion to Dismiss (ECF No. 9) should be GRANTED, with prejudice.
Scheduling Order
The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due in fourteen days. If no objections are filed, review of the Findings and Recommendation will go under advisement that date.
A party may respond to another party's objections within 14 days after the objections are filed. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or on the latest date for filing a response.