Nakanwagi v. Central Arizona Shelter Services Incorporated

Filing 30

ORDER - IT IS ORDERED: 1. Defendant's motion for summary judgment (Doc. 17 ) is granted as to Plaintiff's federal law claims. 2. Plaintiff's motion for judgment on the pleadings (Doc. 25 ) is denied. 3. Plaintiff's remaining state law claims are dismissed without prejudice. 4. The Clerk is directed to terminate this action. (See document for further details). Signed by Judge David G Campbell on 5/30/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sarah Nathreen Nakanwagi,
Plaintiff,

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ORDER

v.

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No. CV-16-03935-PHX-DGC

Central Arizona Shelter Services
Incorporated,

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Defendant.

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Pro se Plaintiff Sarah Nathreen Nakanwagi filed a complaint against Defendant

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Central Arizona Shelter Services, Inc. (“CASS”) seeking various forms of relief for an

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alleged violation of her state, federal, and international rights. Doc. 1. Defendant has

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filed a motion for summary judgment. Doc. 17. In response, Plaintiff has filed a motion

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for judgment on the pleadings. Doc. 25. Neither party has requested oral argument. For

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the reasons set forth below, the Court will grant Defendant’s motion for summary

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judgment.

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I.

Legal Standard.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a

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party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome

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of the suit will preclude the entry of summary judgment, and the disputed evidence must

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be “such that a reasonable jury could return a verdict for the nonmoving party.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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II.

Analysis.

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Plaintiff alleges that she was physically attacked by three CASS security guards

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while waiting to use the bathroom at a shelter.1 She alleges physical and emotional

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injuries, and seeks a broad range of relief.

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A.

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Plaintiff brings federal claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986,

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Federal Law Claims.

1988, 3617, and 28 U.S.C. § 1350.

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1.

Sections 1981, 1982, 1988.

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Section 1981 guarantees “[a]ll persons . . . the same right . . . to make and enforce

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contracts . . . as is enjoyed by white citizens.” CBOCS W., Inc. v. Humphries, 553 U.S.

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442, 458 (2008). Plaintiff has not alleged any facts indicating that Defendant’s conduct

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or the conduct of the security guards interfered with her ability to make or enforce a

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contract. As a result, the Court will grant summary judgment as to Plaintiff’s § 1981

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claims.

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Section 1982 provides for the recovery of compensatory and punitive damages for

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individuals who suffer intentional discrimination in employment.

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allege that she was employed by Defendant or was discriminated against as an employee.

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Thus, the Court will grant summary judgment as to Plaintiff’s § 1982 claims.

Plaintiff does not

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Defendant disputes that Plaintiff was attacked by CASS security guards and that
she was staying at a CASS facility. All facts will be viewed in the light most favorable to
Plaintiff for purposes of this motion.
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Section 1988 does not provide a cause of action, but allows for an award of

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attorneys’ fees and expert fees.

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2.

Section 1983.

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“Section 1983 is a vehicle by which plaintiffs can bring federal constitutional and

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statutory challenges to actions by state and local officials.” Naffe v. Frey, 789 F.3d 1030,

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1035 (9th Cir. 2015) (quotation marks and citation omitted). To state a claim under

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§ 1983, a plaintiff must allege two distinct elements: (1) the violation of a right secured

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by the Constitution or laws of the United States, (2) by a person acting under the color of

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state law. West v. Atkins, 487 U.S. 42, 48 (1988). Dismissal of a § 1983 claim “is proper

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if the complaint is devoid of factual allegations that give rise to a plausible inference of

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either element.” Naffe, 789 F.3d at 1036.

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A person acts under color of state law if he exercises “power possessed by virtue

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of state law and made possible only because the wrongdoer is clothed with the authority

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of state law.”

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generally limits § 1983 suits to claims against public officials. Am. Mfrs. Mut. Ins. Co. v.

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Sullivan, 526 U.S. 40, 50 (1999) (“the under-color-of-state-law element of § 1983

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excludes from its reach merely private conduct, no matter how discriminatory or

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wrongful”) (quotation marks and citation omitted). A private party may be found to have

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acted under color of state law if his “offending conduct is fairly attributable to the state.”

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Simeona v. United Airlines, Inc., 28 F.3d 108 (9th Cir. 1994) (citation and quotation

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marks omitted).

West, 487 U.S. at 49 (quotation marks omitted).

This requirement

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“The Supreme Court has articulated four tests for determining whether a private

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individual’s actions amount to state action: (1) the public function test; (2) the joint action

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test; (3) the state compulsion test; and (4) the governmental nexus test.” Franklin v. Fox,

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312 F.3d 423, 444-45 (9th Cir. 2002). Plaintiff has not alleged any connection between

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Defendant, the three CASS security guards, and the State. Rather, Plaintiff alleges that

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when a police officer arrived to the scene, “[h]e righted [the security guards’] unlawful

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and false arrest” and encouraged Plaintiff “to report” the incident. Doc. 1, ¶¶ 40, 42.

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This allegation does not make the Defendant or the security guards state actors. As a

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result, Plaintiff has not established state action under the first three tests, and no claim

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can be brought against Defendant under § 1983 unless the security guards were

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performing a public function.

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Under the public function test, a private individual is acting under color of state

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law if he carries out a function “both traditionally and exclusively governmental.” Lee v.

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Katz, 276 F.3d 550, 554-55 (9th Cir. 2002). “Courts have held that though security

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guards exercise powers that are traditionally a public function, they do not act under color

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of state law because that function is not exclusively public.” Sayeg v. City of Anaheim,

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No. 8:13-CV-02009-SVW-AN, 2015 WL 12734785, at *5 (C.D. Cal. June 17, 2015);

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Wade v. Byles, 83 F.3d 902, 905-06 (7th Cir. 1996); Johnson v. LaRabida Children’s

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Hosp., 372 F.3d 894, 898 (7th Cir. 2004); Stanley v. Goodwin, 475 F. Supp. 2d 1026,

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1039 (D. Haw. 2006), aff’d, 262 F. App’x 786 (9th Cir. 2007). The Sixth Circuit has

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noted that “[w]here private security guards are endowed by law with plenary police

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powers such that they are de facto police officers, they may qualify as state actors under

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the public function test.” Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 637 (6th Cir.

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2005). Romanski contrasted such broad authority with “the common law shopkeeper’s

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privilege,” where a security guard carries out no public function. Id. Plaintiff makes no

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allegation that the security guards in this case were endowed by the law with plenary

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powers that effectively made them de facto police officers. To the contrary, Plaintiff

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alleges that their actions were overruled by a true police officer. Because Plaintiff has

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presented no evidence that Defendant or the three security guards were acting under color

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of state law, the Court will grant summary judgment on her § 1983 claim.

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3.

Sections 1985, 1986.

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“[T]o state a claim for conspiracy under § 1985, a plaintiff must first have a

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cognizable claim under § 1983.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930

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(9th Cir. 2004). Similarly, “a cause of action is not provided under 42 U.S.C. § 1986

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absent a valid claim for relief under section 1985.” Trerice v. Pedersen, 769 F.2d 1398,

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1403 (9th Cir. 1985). Because Plaintiff does not have a cognizable claim under § 1983,

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she does not have a cognizable claim under § 1985 or § 1986.

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Section 3617.

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Section 3617 is the Fair Housing Act’s retaliation provision and provides that “[i]t

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shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the

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exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account

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of his having aided or encouraged any other person in the exercise or enjoyment of, any

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right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” Plaintiff has

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not alleged any facts suggesting that Defendant retaliated against her for exercising a

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right guaranteed to her by the Fair Housing Act.
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Additional Federal Claims.

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Plaintiff brings claims under several criminal statutes, including as 18 U.S.C.

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§§ 112 and 2333. Plaintiff has not shown that she has a private right of action under

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these statutes. Plaintiff also alleges violations of various broad congressional acts such as

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the Civil Rights Act, the Fair Housing Act, the Patriot Act, the Violence Against Women

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Reauthorization Act of 2013, the Matthew Shepard and James Byrd Jr. Hate Crimes

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Prevention Act, and the Immigration and Nationality Act.

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explanation of how these acts were violated, and no evidence to support any claim under

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these statutes.

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6.

But she provides no

Alien Tort Statute.

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Invoking 28 U.S.C. § 1350, Plaintiff brings claims under the Alien Tort Statute

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(“ATS”) for violations of international treaties. Doc. 1, ¶¶ 32-36. “[T]he ATS is a

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jurisdictional statute creating no new causes of action,” but rather provides for federal

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courts to hear tort claims based on violations of international law. Sosa v. Alvarez-

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Machain, 542 U.S. 692, 724 (2004). Thus, a plaintiff has brought a proper claim under

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the ATS when she (1) is an alien, (2) suing for a tort, (3) committed in violation of

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international law. Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980); Aldana v.

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Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246 (11th Cir. 2005); Kadic v.

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Karadzic, 70 F.3d 232, 238 (2d Cir. 1995).

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Not all violations of international law may be brought under the ATS, but only

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violations of those norms which are “specific, universal, and obligatory.” Kiobel v. Royal

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Dutch Petroleum Co. (Kiobel II), 133 S. Ct. 1659, 1665 (2013); Doe I v. Nestle USA,

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Inc., 766 F.3d 1013, 1019 (9th Cir. 2014). The Supreme Court has emphasized that

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courts should exercise “great caution” in recognizing international norms as sufficiently

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“specific, universal, and obligatory” to give rise to a claim under the ATS. Sosa, 542

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U.S. at 728. When recognizing such norms, courts must consider “whether international

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law extends the scope of liability for a violation of a given norm to the perpetrator being

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sued, if the defendant is a private actor such as a corporation or individual.”

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Sosa, 542 U.S. at 733. Norms are generally applicable to non-state actors if they are

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“universal and absolute[.]” Nestle USA, 766 F.3d at 1022. “If international law supports

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state liability but not private liability, a private actor may still be liable if he or she ‘acted

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under color of law.’ In that regard, we are told to employ our 42 U.S.C. § 1983

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jurisprudence in the inquiry.” Abdullahi v. Pfizer, Inc., 562 F.3d 163, 209 (2d Cir. 2009).

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Because Plaintiff has not shown that Defendant and the security guards were acting under

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color of state law for purposes of § 1983, she has not shown that they were acting under

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color of state law for purposes of liability under international law.

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Plaintiff contends that several of her rights were violated under international law:

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(1) her right to be free of racial discrimination under the Convention on the Elimination

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of All Forms of Racial Discrimination (“CERD”); (2) her right to be free from torture

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under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

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or Punishment (“CAT”); (3) her right to be free from gender discrimination and violence

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under the Convention on the Elimination of All Forms of Discrimination against Women

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(“CEDAW”); (4) her rights under the Convention relating to the Status of Refugees and

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its 1967 Protocol (“Refugee Convention”); (5) her right to be free from “being treated as

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a slave” under the Slavery, Servitude, Forced Labour and Similar Institutions and

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Practices Convention of 1926 (“Slavery Convention”); and (6) her rights to life, liberty,

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security of person, equal protection, and freedom from unlawful arrest under the

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International Covenant on Civil and Political Rights (“ICCPR”). Doc. 1, ¶¶ 32-36.

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Recent federal court decisions regarding ATS claims have focused mostly on the

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application of the statute to extraterritorial acts and corporate defendants. Few cases have

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dealt with application of ATS to domestic acts committed within the United States. At

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least one court has found the application of ATS in such circumstances to be improper,

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noting that a contrary conclusion would mean that “every encounter of an alien with a

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police officer w[ould] become not just a ‘federal case,’ but an ‘international case.’”

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Lopez v. Richardson, 647 F. Supp. 2d 1356, 1364 (N.D. Ga. 2009). As the Lopez court

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noted, however, there is “nothing in the language of the Alien Tort Statute that precludes

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its use against domestic U.S. actors[.]” Id. at 1363-64. The Court need not decide this

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issue, as Plaintiff has not alleged a violation of an international norm which is “specific,

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universal, and obligatory.” Kiobel II, 133 S. Ct. at 1665.

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“Racial discrimination is a violation of customary law when it is practiced

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systematically as a matter of state policy.” Restatement (Third) of Foreign Relations Law

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§ 702 (1987); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir.

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1992) (relying on the Restatement to assert that jus cogen norms prohibit systematic

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racial discrimination). Similarly, “freedom from gender discrimination as state policy, in

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many matters, may [] be a principle of customary international law.” Id. A single

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incident of racial or gender discrimination by private individuals – while certainly serious

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and unacceptable – does not constitute a violation of a “specific, universal, and

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obligatory” international norm. Kiobel II, 133 S. Ct. at 1665. Civil remedies for such a

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violation are better sought under state tort law. What is more, the Ninth Circuit has found

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that the “international norm prohibiting systematic racial discrimination is [not]

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sufficiently specific and obligatory to give rise to a cause of action under the ATS.”

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Sarei v. Rio Tinto, PLC, 671 F.3d 736, 768 (9th Cir. 2011), vacated on other grounds,

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133 S. Ct. 1995, 185 L. Ed. 2d 863 (2013).

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Similarly, “torture and summary execution – when not perpetrated in the course of

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genocide or war crimes – are proscribed by international law only when committed by

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state officials or under color of law.” Kadic, 70 F.3d at 243; Sosa, 542 U.S. at 732 n.20

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(citing with approval Kadic’s finding of an insufficient consensus that torture by private

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actors violates international law). Because Plaintiff has not alleged any state action, she

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has not alleged a violation of international law norms regarding torture.

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With regard to Plaintiff’s allegations of her rights to life, liberty, security of

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person, equal protection, and freedom from unlawful arrest, Plaintiff has not alleged any

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facts that would support a violation of her right to life. Any equal protection claim fails

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for the same reasons that her claims of discrimination fail. Moreover, the Supreme Court

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has held that “a single illegal detention of less than a day . . . violates no norm of

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customary international law so well defined as to support the creation of a federal

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remedy.” Sosa, 542 U.S. at 728. Rather, “arbitrary detention violates customary law if it

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is prolonged and practiced as state policy.” Restatement (Third) of Foreign Relations

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Law § 702 (1987). Here, Plaintiff alleges that she was detained by the security guards

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only until the police arrived, at which point the police removed her handcuffs, told her

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she was not under arrest, and encouraged her to report the alleged conduct of the security

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guards.

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constitute a violation of international law regarding liberty and unlawful arrest.

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Additionally, courts have repeatedly held that liberty and security claims are not

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sufficiently “specific, universal, and obligatory” to constitute actionable claims under the

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ATS. See Bowoto v. Chevron Corp., 557 F. Supp. 2d 1080, 1095 (N.D. Cal. 2008), aff’d,

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621 F.3d 1116 (9th Cir. 2010).

Doc. 1, ¶¶ 40-42.

This single brief detention by private actors does not

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Finally, Plaintiff has not alleged facts that would constitute a violation of the

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Refugee Convention or Slavery Convention, assuming the provisions of these treaties

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reflect “specific, universal, and obligatory” international law norms. The Court will grant

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summary judgment as to Plaintiff’s ATS claims.

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B.

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Plaintiff also brings various state tort claims. Doc. 1. The federal supplemental

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jurisdiction statute provides that the Court may decline to exercise supplemental

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jurisdiction if “the district court has dismissed all claims over which it has original

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jurisdiction.” 28 U.S.C. § 1367; United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

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726 (1966) (“[I]f the federal claims are dismissed before trial, even though not

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insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”).

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Because the Court has granted summary judgment for Defendant as to all of Plaintiff’s

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federal claims, the Court will also exercise its discretion and dismiss Plaintiff’s state law

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State Law Claims.

claims.2

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IT IS ORDERED:

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1.

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Defendant’s motion for summary judgment (Doc. 17) is granted as to
Plaintiff’s federal law claims.

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2.

Plaintiff’s motion for judgment on the pleadings (Doc. 25) is denied.

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3.

Plaintiff’s remaining state law claims are dismissed without prejudice.

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4.

The Clerk is directed to terminate this action.

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Dated this 30th day of May, 2017.

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The court’s jurisdiction over this case was based on federal question jurisdiction.
Doc. 1, ¶¶ 1-2. Plaintiff concedes that she is domiciled in Arizona and that Defendant is
an Arizona corporation, removing any possibility of diversity jurisdiction.
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