PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRENT RANDALL COLSON,

Plaintiff,

v.

PORTLAND ADVENTIST MEDICAL 

CENTER,

Defendant.

Case No. 3:15-cv-01601-SI

OPINION AND ORDER

Brent Randall Colson, 38954 Proctor Boulevard, Post Office Box 171, Sandy, OR 97055. 

Plaintiff pro se. 

Michael H. Simon, District Judge.

Plaintiff Brent Randall Colson (“Colson”) filed pro se claims against Defendant, 

Portland Adventist Medical Center (“Portland Adventist”). Dkt. 1. Service of process has not yet 

occurred. Additionally, Colson filed a motion for an emergency ex parte order and an application 

with the court to proceed in forma pauperis. Dkts. 2, 3. The Court grants Colson’s application to 

proceed in forma pauperis, but finds that even under the liberal pleading standards afforded a pro 

se plaintiff, Colson fails to state a claim upon which relief may be granted. Accordingly, for the 

reasons stated below, this case is dismissed.

STANDARDS

A complaint filed in forma pauperis may be dismissed at any time, including before 

service of process, if the Court determines that the action is “frivolous or malicious” or the 

complaint “fails to state a claim upon which relief can be granted.” 28 U.S.C. § 1915(e)(2); see 

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also Neitzke v. Williams, 490 U.S. 319, 324 (1989) (discussing an earlier version of the statute); 

Jackson v. Arizona, 885 F.2d 881, 882 (9th Cir. 1989). A complaint is frivolous “where it lacks 

an arguable basis either in law or fact.” Neitzke, 490 U.S. at 325; Lopez v. Dep’t of Health Servs., 

939 F.2d 881, 882 (9th Cir. 1991); Jackson, 885 F.2d at 640. The term “frivolous,” when used to 

describe a complaint, “embraces not only the inarguable legal conclusion, but also the fanciful 

factual allegation.” Neitzke, 490 U.S. at 325. 

A complaint fails to state a claim when there is no cognizable legal theory or the factual 

allegations are insufficient to support a claim for relief. Shroyer v. New Cingular Wireless Servs., 

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual 

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint 

and draw all reasonable inferences in favor of the plaintiff. Wilson v. Hewlett-Packard Co., 668 

F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th 

Cir. 2010). But to be entitled to a presumption of truth, the complaint must do more than simply 

allege legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009). The plaintiff “may not simply recite the elements of a cause of action, but must [provide] 

sufficient allegations of underlying facts to give fair notice and to enable the opposing party to 

defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The underlying 

factual allegations must “plausibly suggest an entitlement to relief.” Baca, 652 F.3d at 1216 

(emphasis added). “A claim has facial plausibility when the pleaded factual content allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

Pro se plaintiffs receive special dispensation. A court must liberally construe the filings 

of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. 

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Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or 

her complaint unless it is absolutely clear that the deficiencies of the complaint could not be 

cured by amendment.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 

(9th Cir. 1988) (citation and internal quotation marks omitted). But even a pro se plaintiff must 

offer more than “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of 

action.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 

BACKGROUND

Portland Adventist admitted Colson on October 6, 1996, and released him on October 11, 

1996. In his pro se Complaint, Colson alleges that: (1) he was unlawfully detained; (2) Portland 

Adventist did not follow the procedures of section 426.232 of the Oregon Revised Statutes; 

(3) Portland Adventist violated Colson’s federal and state due process rights; (4) Portland 

Adventist intentionally falsified medical records; (5) Portland Adventist prevented Colson from 

receiving medical treatment from other providers by contacting those providers to ensure they 

would not treat Colson; and (6) Portland Adventist released Colson’s medical records without his 

consent. Colson seeks five million dollars in damages.

DISCUSSION

Colson’s Complaint fails to allege a cause of action under federal law. Federal courts are 

courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 

(1994). Unlike state courts, which are courts of general jurisdiction, federal courts may only 

exercise jurisdiction in certain kinds of cases as authorized by the United States Constitution and 

Congress. See id.; United States v. Jacobo Castillo, 496 F.3d 947, 951 (9th Cir. 2007) (en banc). 

Federal courts have jurisdiction over two primary categories of cases: (1) those based on federal 

law (federal question jurisdiction); and (2) those involving citizens of different states where more 

than $75,000 is at issue (diversity jurisdiction). See 28 U.S.C. §§ 1331-32. In Section II.A. of his 

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Complaint, Colson checked the box for “Federal Question” as the basis for federal court 

jurisdiction. He listed the Economic Espionage Act of 1996, 18 U.S.C. §§ 1831-39, as the federal 

statute at issue. Colson’s Complaint, however, does not allege any facts relating to economic 

espionage. 

Instead, Colson’s Complaint appears to attempt to allege a 42 U.S.C. § 1983 claim by 

asserting that Portland Adventist violated his Constitutional rights. To state a claim for liability 

under Section 1983, “‘a plaintiff must show both (1) deprivation of a right secured by the 

Constitution and laws of the United States, and (2) that the deprivation was committed by a 

person acting under color of state law.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 

(9th Cir. 2012) (quoting Chudacoff v. Univ. Med. Ctr., 649 F.3d 1143, 1149 (9th Cir. 2011)). 

“[T]he under-color-of-state-law element of § 1983 excludes from its reach ‘merely private 

conduct, no matter how discriminatory or wrongful . . . .’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 

526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)).

A private individual may, under certain circumstances, act under the color of state law. 

The Ninth Circuit recognizes “at least four different criteria, or tests, used to identify state action: 

‘(1) public function; (2) joint action; (3) governmental compulsion or coercion; and 

(4) governmental nexus.’” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Sutton 

v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999)). “Satisfaction of any 

one test is sufficient to find state action, so long as no countervailing factor exists.” Id.

Colson’s Complaint—even when liberally construed—fails to state a Section 1983 claim. 

Colson has not alleged any facts indicating that Portland Adventist acted “under the color of state 

law.” Tsao, 698 F.3d at 1138. The Court is skeptical that Colson can assert facts sufficient to 

show that Portland Adventist, a private hospital, was acting under the color of state law when it 

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treated Colson. It is not “absolutely clear,” however, that Colson cannot state a Section 1983 

claim. See Karim-Panahi, 839 F.2d at 623. Accordingly, Colson has leave to amend his 

Complaint if he can allege facts plausibly suggesting that Portland Adventist was a state actor at 

the time of the alleged Constitutional violations.

Colson’s remaining claims are state law claims. Because Colson asserts federal question 

jurisdiction, Colson may bring state law claims in this Court only if they are “part of the same 

case or controversy” as his federal claims. See 28 U.S.C. § 1367(a). Colson’s Complaint, 

however, has failed successfully to allege any federal claims that support federal question 

jurisdiction. As a result, this Court declines to exercise supplemental jurisdiction over his state 

law claims. See 28 U.S.C. § 1367(c)(3).

Colson’s Complaint does not assert diversity jurisdiction. Because the Court liberally 

construes pro se pleadings, the Court considers whether Colson’s allegations are sufficient for 

diversity jurisdiction.

Diversity jurisdiction requires that the plaintiff and defendant be “citizens of different 

states.” 28 U.S.C. § 1332(a)(1). The plaintiff has the burden of showing diversity of citizenship. 

Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001). The plaintiff’s state of 

domicile determines his state citizenship. A plaintiff has his domicile at his “permanent home, 

where [he] resides with the intention to remain or to which [he] intends to return.” Id. at 857. A 

court considers the following factors when determining domicile:

[C]urrent residence, voting registration and voting practices, 

location of personal and real property, location of brokerage and 

bank accounts, location of spouse and family, membership in 

unions and other organizations, place of employment or business, 

driver’s license and automobile registration, and payment of taxes. 

. . . [D]omicile is evaluated in terms of objective facts, and . . . 

statements of intent are entitled to little weight when in conflict 

with facts.

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PAGE 6 – OPINION AND ORDER

Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986) (quotation marks and citations omitted). 

Colson does not allege whether he is a citizen of Oregon or California. Although Colson 

lists a California street address on his Complaint, his mailing address is in Sandy, Oregon. He 

does not allege that he is registered to vote in California, files a state tax return in California, has 

a California driver’s license, or other facts from which this Court could infer California 

citizenship. If Colson asserts diversity jurisdiction in any future amended complaint, he must

allege facts sufficient to clarify whether he is a resident of Oregon or California for jurisdictional 

purposes. 

Interpreting the Complaint under the liberal pro se pleading standard and affording the 

Colson the benefit of any reasonable doubt, the Court finds that the Complaint contains 

insufficient facts to support a cause of action. For these reasons, the Court holds that the 

Complaint fails to state a claim on which relief may be granted and dismisses this case under

28 U.S.C. § 1915(e)(2).

CONCLUSION

Colson’s application to proceed in forma pauperis (Dkt. 3) is GRANTED. Colson’s 

Complaint (Dkt. 1), however, fails to state a claim upon which relief may be granted, see 28 

U.S.C. § 1915(e)(2). Colson’s Complaint (Dkt. 1) is DISMISSED. Colson’s Motion for 

Emergency Ex Parte Order (Dkt. 2) is denied as moot. Colson may file an amended complaint 

that cures the defects noted in this Opinion and Order by October 2, 2015.

IT IS SO ORDERED.

DATED this 8th day of September, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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