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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Benjamin C Reed, 

Plaintiff, 

v. 

Universal Health Services, 

Defendant. 

No. CV-18-00101-TUC-RCC 

ORDER 

 Pending before the Court is Defendant Universal Health Services’ (“UHS”) Motions 

to Dismiss (Docs. 13, 20); and Plaintiff Benjamin Reed’s Request for Additional Time to 

Serve the Defendant (Doc. 16), and Motion to Recover Unnecessary Costs of Service and 

Begin Default Proceedings (Doc. 12). 

I. SERVICE AND SUMMONS

 Plaintiff filed his Complaint and Application to Proceed In Forma Pauperis (IFP) on 

February 26, 2018. (Docs. 1-2.) On June 20, 2018, the Court denied the IFP, ordered 

Plaintiff to pay a filing fee, and informed Plaintiff that upon payment of the filing fee he 

was responsible for the summons and service upon the Defendant pursuant to Federal and 

Local Rules of Procedure. (Doc. 9.) Plaintiff paid the filing fee on July 2, 2018, but no 

summons issued. Instead, on September 6, 2018, he filed a motion alleging he had served 

Defendant on July 5, 2018, and the Court should order a default judgment in his favor since 

Defendant had not answered his Complaint. (Doc. 12.) But, Plaintiff’s subsequent 

September 28, 2018 motion asks the Court to extend his time for service and states, “service 
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is in process and has been complicated.” (Doc. 16.) In support, Plaintiff attached a letter 

from a process server asserting the same, but the letter was dated only one day prior to the 

filing of the extension motion. Id. Also, it was not until he filed the extension motion that 

he provided the Clerk of Court the summons, which issued that day. (See Clerk’s Entry, 

Sept. 28, 2018.) Plaintiff’s own pleadings demonstrate he did not serve the Defendant in a 

timely fashion and therefore Defendant’s answer was not untimely. The Court will 

therefore deny Plaintiff’s motion to award him costs and begin default proceedings. (Doc. 

12.) 

 Defendant’s first Motion to Dismiss alleges that because Plaintiff did not timely 

serve the Defendant, the case should be dismissed pursuant to Federal Rule of Civil 

Procedure 4(m). Rule 4(m) provides: 

TIME LIMIT FOR SERVICE. If a defendant is not served within 90 days after 

the complaint is filed, the court—on motion or on its own after notice to the 

plaintiff—must dismiss the action without prejudice against that defendant 

or order that service be made within a specified time. But if the plaintiff 

shows good cause for the failure, the court must extend the time for service 

for an appropriate period. 

 Plaintiff has not provided good cause for the failure, stating only that service was 

“complicated.” Nor does the fact that his process server also found service difficult–long 

after the service deadline–furnish good cause. If he was experiencing difficulty with 

service, he could have filed a timely motion to extend the service deadline. He did not do 

so until the time for service had long passed. 

The Court finds that although it may dismiss this case because of the service error, 

the Court also dismisses Plaintiff’s Complaint because he has not pleaded facts supporting 

a cognizable claim entitling him to relief. The Court now turns to the second Motion to 

Dismiss for Failure to State a Claim. (Doc. 20.) 

II. STANDARD OF REVIEW FOR MOTION TO DISMISS UNDER 12(B)(6) 

A complaint under 12(b)(6) must contain a “short and plain statement of the claim 

showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8 does not 
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require detailed factual allegations, “it demands more than an unadorned, the defendant 

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 

that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the 

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

alleged.” Id. The complaint must contain more than “a statement of facts that merely creates 

a suspicion [of] a legally cognizable right of action.” Bell Atlantic Corp., 550 U.S. at 555. 

A pleading must have both a cognizable legal theory and sufficient facts supporting the 

cognizable claim. SmileCare Dental Group v. Delta Dental Plan of Calif., Inc., 88 F.3d 

780, 783 (9th Cir. 1996). Furthermore, “[t]hreadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice.” Id. “Determining 

whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 

requires the reviewing court to draw on its judicial experience and common sense.” Id. at 

679. 

 If the plaintiff “fails to state a claim on which relief may be granted,” the district 

court must dismiss the claim. 28 U.S.C. §1915(e)(2)(B)(ii). But, a “complaint [filed by a 

pro se litigant] ‘must be held to less stringent standards than formal pleadings drafted by 

lawyers.’” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Erickson v. Pardus, 

551 U.S. 89, 94 (2007) (per curiam)). While dismissal is appropriate if the complaint’s 

deficiencies cannot be cured by amendment, if the pleading can be remedied through the 

addition of facts, the claimant should be granted an opportunity to amend a complaint prior 

to final dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000). 

III. PLAINTIFF’S COMPLAINT

Plaintiff raises a federal § 1983 claim and several state tort claims against Defendant 

UHS arising from events occurring during his involuntary committal at UHS’ Palo Verde 

facility pursuant to Arizona Revised Statute § 36-520 et seq. (Doc. 1 at 1.) While in Palo 

Verde, he was treated by UHS of Tucson, LLC, a subsidiary of UHS. UHS of Tucson is 
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not a named defendant, nor are any individual actors involved in the alleged constitutional 

violations and torts. 

To raise a claim of deprivation of constitutional rights under 42 U.S.C. § 1983, a 

claimant must plead facts demonstrating (1) a defendant violated the claimant’s federally 

protected rights and (2) the defendant acted “under color of state law.” Crumpton v. Gates,

947 F.2d 1418, 1420 (9th Cir. 1991). Any alleged constitutional violation must be 

attributed to the state to be actionable. See Caviness v. Horizon Cnty. Learning Ctr., Inc., 

590 F.3d 806, 812 (9th Cir. 2010) (private conduct is not a basis for a § 1983 claim). 

Furthermore, “[m]erely acting pursuant to a statute does not make one’s conduct ‘under 

color of state law.’” United States ex rel. Settles v. Universal Health Svcs., Inc., 3:16-CV1-J-32JRK, 2016 WL 5791258, at *3 (M.D. Fla. Oct. 4, 2016); see also Lugar v. 

Edmondson Oil Co., 457 U.S. 922, 941 (1982) (if abuse of statute is private, it is not state 

action, but joint participation with state official in constitutional violation may constitute 

state action); Doherty v. Certified Fin. Planner Bd. of Standards, Inc., CV-12-01920-PHXNVW, 2012 WL 5504183, at *2 (D. Ariz. Nov. 13, 2012) (“Merely contracting with the 

federal government does not make Defendant a state actor.”); Doe v. Bellin Mem'l Hosp., 

479 F.2d 756, 761 (7th Cir. 1973) (hospital accepting state and federal financial support, 

and regulated by state laws does not transform its actions into state conduct). “Without a 

limit such as this, private parties could face constitutional litigation whenever they seek to 

rely on some state rule governing their interactions with the community surrounding them.” 

Lugar, 457 U.S. at 937. In essence, limiting liability to state actions mens that nongovernmental parties are typically immune from liability under § 1983. Kirtley v. Rainey, 

326 F.3d 1088, 1092 (9th Cir. 2003). To state a claim under § 1983 against a nongovernmental party, “therefore, must show that the private parties’ infringement somehow 

constitutes state action.” George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 

1996). To do so, the claimant must demonstrate that the private party (1) violated 

claimant’s constitutional rights, (2) acted under color of state law, and (3) the violation was 

a result of an official policy or custom. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 
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(9th Cir. 2012). “A single constitutional deprivation ordinarily is insufficient to establish a 

longstanding practice or custom. . . . Liability for improper custom may not be predicated 

on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, 

frequency and consistency that the conduct has become a traditional method of carrying 

out policy.” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (quoting Trevino v. 

Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quotation marks omitted)). 

Plaintiff’s response to the Motion to Dismiss claims that Defendant is a state actor 

because UHS (1) involuntarily commits people per Arizona Revised Statute § 36[-520]; 

(2) takes custody of these individuals from the state; (3) receives state funding; and (4) bills 

through Arizona Health Care Cost Containment System (ACCCHS). However, none of 

these allegations of state action are contained in his Complaint. “In deciding whether to 

dismiss a claim under Rule 12(b)(6), the court is generally limited to reviewing only the 

complaint, but it may take judicial notice of public records outside the pleadings, review 

materials which are properly submitted as part of the complaint, and review documents that 

are incorporated by reference in the complaint if no party questions their authenticity.” 

Padres Hacia Una Vida Mejor v. Jackson, 2012 WL 1158753, at *3 (E.D. Cal. April 6, 

2012) (citing Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); and then Lee v. City 

of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001)). Nor does the Complaint assert any 

facts alleging that the purported violations were pursuant to a policy or custom, a necessary 

element to his claim. Because the Court finds that the Complaint fails to plead facts 

supporting a cognizable legal theory–the only basis for federal jurisdiction–the Court 

declines to exercise supplemental jurisdiction over Plaintiff’s state claims. See Satey v. 

JPMorgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir. 2008) (“The decision whether to 

continue to exercise supplemental jurisdiction over state law claims after all federal claims 

have been dismissed lies within the district court’s discretion.”). 

However, because it is possible the inadequacies of the Complaint may be remedied 

through the pleading of additional facts, the Court will dismiss Plaintiff’s Complaint with 

leave to amend. If Plaintiff files an amended complaint, Plaintiff must write short, plain 
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statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) 

the name of the Defendant who violated the right; (3) exactly what that Defendant did or 

failed to do; (4) how the action or inaction of that Defendant is connected to the violation 

of Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 

that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). If 

Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 

injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 

failure to state a claim. Conclusory allegations that a Defendant has violated a 

constitutional right are not acceptable and will be dismissed. Further, any amendment must 

address how and why Defendant’s actions constituted state action and resulted from an 

official policy. 

Plaintiff shall familiarize himself with the Federal Rules of Civil Procedure and 

Local Rules for the District of Arizona, both of which can be found on the Court’s web site 

at www.azd.uscourts.gov. Plaintiff is advised that a Handbook for Self-Represented 

Litigants is available on the Court’s website at: http://www.azd.uscourts.gov/handbookself-represented-litigants. In addition, Step Up to Justice offers a free, advice-only clinic 

for self-represented civil litigants on Thursdays from 1:30 p.m. to 3:30 p.m. If Plaintiff 

wishes to schedule a clinic appointment, he should contact the courthouse librarian, Mary 

Ann O’Neil, at MaryAnn_O’Neil@LB9.uscourts.gov. 

 Accordingly, IT IS ORDERED: 

1. Plaintiff’s Request for Additional Time to Serve the Defendant (Doc. 16) is 

DENIED. 

2. Plaintiff’s Motion to Recover Unnecessary Costs of Service and Begin Default 

Proceedings (Doc. 12) is DENIED. 

3. Defendant Universal Health Services’ Motions to Dismiss are GRANTED IN 

PART. (Doc 13, 20.) 

4. Plaintiff’s Complaint is DISMISSED with leave to amend. Plaintiff may file a First 

Amended Complaint within thirty (30) days of the date of this Order. 
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5. If Plaintiff fails to file an Amended Complaint within thirty (30) days of the date of 

this Order, the Clerk of Court shall, without further notice, enter a judgment 

dismissing this case with prejudice. 

 Dated this 12th day of February, 2019.