Geoffrey Fitzgerald Wilson v. Tannaz H. Azinkhan, Ph.D. et al

Filing 7

ORDER DISMISSING COMPLAINTWITH LEAVE TO AMEND by Judge James V. Selna. 1. The Complaint is dismissed with leave to amend. If plaintiff intends to pursue this matter, he shall file a First Amended Complaint within fourteen (14) days of the date of this Order which cures the pleading defects set forth herein. 2. In the event plaintiff elects not to proceed with this action, he shall sign and return the attached Notice of Dismissal by the foregoing deadline which will result in the voluntary dismissal of this action without prejudice. See order for further details. (Attachments: # 1 Notice of Dismissal Form, # 2 Civil Rights Complaint Form) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GEOFFREY FITZGERALD WILSON,

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Plaintiff,

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v.

Case No. CV 16-8092 JVS(JC)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

TANNAZ H. AZINKHAN, Ph.D,
et al.,

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Defendants.

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I.

BACKGROUND AND SUMMARY
On October 31, 2016, Geoffrey Fitzgerald Wilson ("plaintiff"), who is at

liberty, is proceeding without a lawyer (i.e., "pro se"), and has been granted leave to
proceed in forma pauperis, filed a Civil Rights Complaint (“Complaint” or
“Comp.”) pursuant to 42 U.S.C. § 1983 ("Section 1983") against: (1) Tannaz H.
Azinkhan, Ph.D. (“Azinkhan”); (2) Sharper Future; and (3) multiple unnamed
individuals identified only as “Does 1-10" (“Doe Defendants”) (collectively
"defendants"). (Comp. at 1-4). Plaintiff seeks monetary relief from defendant
Azinkhan in her individual capacity only, from defendant Sharper Future in its
official capacity only, and from the Doe Defendants in their individual and official
capacities.

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As the Complaint is deficient in multiple respects, including those detailed

2 below, it is dismissed with leave to amend.
3 II.

THE SCREENING REQUIREMENT

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As plaintiff is proceeding in forma pauperis, the Court must screen the

5 Complaint, and is required to dismiss the case at any time it concludes the action is
6 frivolous or malicious, fails to state a claim on which relief may be granted, or
7 seeks monetary relief against a defendant who is immune from such relief. See
8 28 U.S.C. §§ 1915(e)(2)(B).
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When screening a complaint to determine whether it states any claim that is

10 viable (i.e., capable of succeeding), the Court applies the same standard as it would
11 when evaluating a motion to dismiss under Federal Rule of Civil Procedure
12 12(b)(6). See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (citation
13 omitted). Rule 12(b)(6), in turn, is read in conjunction with Rule 8(a) of the Federal
14 Rules of Civil Procedure (“Rule 8”). Zixiang Li v. Kerry, 710 F.3d 995, 998-99
15 (9th Cir. 2013). Under Rule 8, a complaint must contain a “short and plain
16 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
17 8(a)(2). While Rule 8 does not require detailed factual allegations, at a minimum a
18 complaint must allege enough specific facts to provide both “fair notice” of the
19 particular claim being asserted and “the grounds upon which [that claim] rests.”
20 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation and
21 quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
22 (Rule 8 pleading standard “demands more than an unadorned, the-defendant23 unlawfully-harmed-me accusation”) (citing id. at 555).
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Thus, to avoid dismissal, a civil rights complaint must “contain sufficient

25 factual matter, accepted as true, to state a claim to relief that is plausible on its
26 face.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (citations and
27 quotation marks omitted). A claim is “plausible” when the facts alleged in the
28 complaint would support a reasonable inference that the plaintiff is entitled to relief
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1 from a specific defendant for specific misconduct. Iqbal, 556 U.S. at 678 (citation
2 omitted). Allegations that are “merely consistent with” a defendant’s liability, or
3 reflect only “the mere possibility of misconduct” do not “show[] that the pleader is
4 entitled to relief” (as required by Fed. R. Civ. P. 8(a)(2)), and thus are insufficient
5 to state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678-79 (citations
6 and quotation marks omitted). At this preliminary stage, “well-pleaded factual
7 allegations” in a complaint are assumed true, while “[t]hreadbare recitals of the
8 elements of a cause of action” and “legal conclusion[s] couched as a factual
9 allegation” are not. Id. (citation and quotation marks omitted); Jackson v. Barnes,
10 749 F.3d 755, 763 (9th Cir. 2014) (“mere legal conclusions ‘are not entitled to the
11 assumption of truth’”) (quoting id.), cert. denied, 135 S. Ct. 980 (2015).
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Pro se complaints in civil rights cases are interpreted liberally to give

13 plaintiffs “the benefit of any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
14 2012) (citation and internal quotation marks omitted). If a pro se complaint is
15 dismissed because it does not state a claim, the court must freely grant “leave to
16 amend” (that is, give the plaintiff a chance to file a new, corrected complaint) if it is
17 “at all possible” that the plaintiff could fix the identified pleading errors by alleging
18 different or new facts. Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d
19 1047, 1058 (9th Cir. 2011) (citation omitted); Lopez v. Smith, 203 F.3d 1122,
20 1126-30 (9th Cir. 2000) (en banc) (citations and internal quotation marks omitted).
21 III.

THE COMPLAINT

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Liberally construed, the Complaint alleges the following:

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Defendant Sharper Future provides mental health services under a contract

24 with the State of California. (Comp. at 2, 4). As a condition of his parole, plaintiff
25 was required to attend therapy sessions conducted by defendant Azinkhan, a
26 psychologist and employee of Sharper Future. (Comp. at 2, 5).
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On October 25, 2014, during a group therapy session, defendant Azinkhan
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1 read plaintiff’s arrest record to the attendees without plaintiff’s consent. (Comp. at
2 4-5). Defendant Azinkhan had privileged access to plaintiff’s arrest record and had
3 a duty to refrain from releasing the private, confidential, or privileged information,
4 and a duty to attempt to protect persons from harm, misuse, or misrepresentation as
5 a result of her statements. (Comp. at 5). Defendant Azinkhan breached her duty by
6 disclosing information from plaintiff’s arrest record to members of the therapy
7 group. (Comp. at 5).
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On November 1, 2014, starting at approximately 12:05 p.m., defendant

9 Azinkhan conducted a group therapy session with plaintiff in attendance. (Comp. at
10 5). Defendant Azinkhan told plaintiff that he would not be allowed to answer
11 questions during the session by saying “I did not commit the crime.” (Comp. at 5).
12 When plaintiff wrote down the defendant’s prohibition on the back of a
13 questionnaire, defendant Azinkhan asked plaintiff, “What are you writing?”
14 (Comp. at 5). Plaintiff replied, “What you said.” (Comp. at 5). Defendant
15 Azinkhan ordered plaintiff to “get out.” (Comp. at 5). Plaintiff said “thank you,”
16 and left approximately 11 minutes after the group therapy session had started.
17 (Comp. at 5).
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Defendant Azinkhan later “misrepresented” in her report to a law

19 enforcement agent that plaintiff had disrupted the November 1 group-therapy
20 session for up to 40 minutes. (Comp. at 5-6). Due to the inaccurate report, plaintiff
21 was “arrested and jailed.” (Comp. at 6).
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Defendant Sharper Future and the Doe Defendants “created an atmospher[e]

23 where this mistreatment was tol[e]rated and condoned.” (Comp. at 6).
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Plaintiff claims defendants deprived him of due process under the Fifth,

25 Sixth, and Fourteenth Amendments, violated plaintiff’s Eighth Amendment right to
26 be free from cruel and unusual punishment, and deprived plaintiff of his First
27 Amendment right to free speech. (Comp. at 6-8).
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DISCUSSION
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A.

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Pertinent Law – Section 1983 Claims; “Color of Law”
Requirement

To state a claim under Section 1983, a plaintiff must allege that a defendant,

4 while acting under color of state law, caused a deprivation of the plaintiff’s federal
5 rights. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988) (citations
6 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted).
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It is generally presumed that private individuals and entities do not act “under

8 color of state law” within the meaning of Section 1983. See Florer v. Congregation
9 Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011) (citation omitted), cert.
10 denied, 565 U.S. 1116 (2012). Such private parties may be held liable under
11 Section 1983 for constitutional deprivations, but only to the extent their actions “are
12 fairly attributable to the state. . . .” Id. (citing Lugar v. Edmondson Oil Company,
13 Inc., 457 U.S. 922, 937 (1982)).
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The U.S. Supreme Court has established at least four tests for determining

15 when the conduct of a private party may properly be considered “state action” for
16 purposes of Section 1983, namely, “(1) the public function test; (2) the joint action
17 test; (3) the state compulsion test; and (4) the governmental nexus test.” Tsao v.
18 Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (citation and quotation
19 marks omitted). A Section 1983 plaintiff has the burden to plead and prove state
20 action by a private defendant. See id. (citing Lugar, 457 U.S. at 937).
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When a private business entity engages in “state action,” it still cannot be

22 held liable under Section 1983 unless the plaintiff’s constitutional violation was
23 caused by the entity’s “policy, practice, or custom” or by an “order by a policy24 making officer[.]” See Tsao, 698 F.3d at 1138-39 (applying “reasoning underlying
25 Monell [v. Department of Social Services, 436 U.S. 658, 691 (1978)] . . . [to]
26 private entities acting under color of state law”) (citations omitted).
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B.

Analysis

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Defendant Azinkhan

Here, the Complaint does not plausibly allege that the conduct of defendant

3 Azinkhan – a psychologist employed by what appears to be a private mental health
4 care provider – amounted to state action under any of the foregoing tests.
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First, under the “public function test,” private individuals or entities are

6 deemed to be state actors for purposes of Section 1983 only when they perform a
7 public function that has been “traditionally the exclusive prerogative of the State.”
8 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (citations and quotation marks
9 omitted; emphasis in original). Here, the Complaint does not plausibly allege that
10 defendant Azinkhan acted pursuant to an exclusive governmental function by
11 providing group therapy. Cf, e.g., Jensen v. Lane County, 222 F.3d 570, 574 (9th
12 Cir. 2000) (involuntary “mental health commitments” facilitated by private
13 physician “do not constitute a function ‘exclusively reserved to the State’”); Merrill
14 v. Mental Health Systems, 2016 WL 4761789, *4 (S.D. Cal. Sept. 13, 2016)
15 (dismissing complaint against private entity that provided treatment services for
16 parolees where plaintiff failed to allege that provision of treatment to parolees
17 traditionally an exclusive function of state so as to satisfy state action public
18 function test); Craig v. City of King City, 2012 WL 1094327, *4 (N.D. Cal. Mar.
19 29, 2012) (administration of police fitness for duty examination by private
20 psychologist “not a traditional and exclusive government function”); Heggem v.
21 Holmes, 2011 WL 7758243, *5 (W.D. Wash. Dec. 9, 2011) (“Providing chemical
22 dependency counseling is not traditionally and exclusively a governmental function.
23 . . .”), report and recommendation adopted, 2012 WL 1378786 (W.D. Wash. Apr.
24 20, 2012); see also Rendell-Baker, 457 U.S. at 842 (“That a private entity performs
25 a function which serves the public does not make its acts state action.”) (footnote
26 omitted).
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Second, under the joint action test, a private individual may be liable as a

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1 state actor under Section 1983 if he or she was part of a conspiracy or was a “willful
2 participant in [other] joint action” with a state actor that caused the constitutional
3 violation. Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002) (joint action test
4 “focuses on whether the state has ‘so far insinuated itself into a position of
5 interdependence with [the private actor] that it must be recognized as a joint
6 participant in the challenged activity’”) (citations and internal quotation marks
7 omitted); DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) (“Private
8 persons, jointly engaged with state officials in the challenged action, are acting
9 ‘under color’ of law for purposes of § 1983 actions.”) (citation omitted). There
10 must be “a substantial degree of cooperation” between private individuals and the
11 government to establish Section 1983 liability under the joint action test. Franklin,
12 312 F.3d at 445.
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Here, allegations that defendant Azinkhan breached a duty to protect

14 plaintiff’s private information during the October 25 group therapy session, and/or
15 “misrepresented” to law enforcement the nature and extent of plaintiff’s actions
16 during the November 1 session, without more, do not plausibly suggest that
17 defendant Azinkhan cooperated to any substantial degree with a state actor, much
18 less engaged in a conspiracy with a state actor to violate plaintiff’s constitutional
19 rights. Cf., e.g., Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 899-900 (9th
20 Cir. 2008) (granting summary judgment in favor of defendant private employees of
21 event organizer who requested that plaintiff and other petition gatherers be removed
22 from public sidewalk where plaintiff presented no evidence that defendants “did
23 anything more than summon police”); Lovelace v. Oregon, 2009 WL 2450298, *6
24 (D. Or. Aug. 10, 2009) (“providing sex offender treatment and reporting to parole
25 officials on the progress of [parolee’s] treatment” insufficient to treat therapist as
26 “state actor”) (citing, in part, Kirtley v. Rainey, 326 F.3d 1088, 1093 (9th Cir.
27 2003)).
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Third, the Complaint does not plausibly allege that defendant Azinkhan’s

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1 private conduct was effectively converted into state action through governmental
2 compulsion/coercion or due to any close nexus between defendant Azinkhan and a
3 governmental entity. See generally Brentwood Academy v. Tennessee Secondary
4 School Athletic Association, 531 U.S. 288, 295 (2001) (“[S]tate action may be
5 found if, though only if, there is such a ‘close nexus between the State and the
6 challenged action’ that seemingly private behavior ‘may be fairly treated as that of
7 the State itself.’”) (citation omitted); Rendell-Baker, 457 U.S. at 840 (“[A] State
8 normally can be held responsible for a private decision only when it has exercised
9 coercive power or has provided such significant encouragement, either overt or
10 covert, that the choice must in law be deemed to be that of the State.”) (citation and
11 quotation marks omitted); Kirtley, 326 F.3d at 1094 (“The compulsion test
12 considers whether the coercive influence or ‘significant encouragement’ of the state
13 effectively converts a private action into a government action.”) (citation omitted);
14 Merrill, 2016 WL 4761789 at *4-5 (dismissing Section 1983 claim where plaintiff
15 parolee, who was required to undergo treatment at private defendant treatment
16 facility as condition of parole, failed adequately to allege state action under public
17 function test because State neither directly compelled nor was directly involved in
18 defendant’s conduct about which plaintiff complained; fact that the State authorized
19 defendant to coordinate and provide treatment to parolees does not convert
20 defendant’s conduct into state action under governmental nexus test); Heggem,
21 2011 WL 7758243 at *6 (noting that under Washington state law, private chemical
22 dependency counselor “functions independently from the State, exercising
23 professional obligations primarily to his or her client” and “is under [no]
24 governmental compulsion to submit an allegedly fraudulent report if asked to do so
25 by the State”). Without more, conclusory allegations that defendant Azinkhan was
26 employed by a private mental health services organization that contracted with the
27 state (Comp. at 2, 4-5) do not show that defendant Azinkhan was acting under color
28 of law under the circumstances. See, e.g., Rendell-Baker, 457 U.S. at 840-41 (acts

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1 of private entity that primarily does business with the government “do not become
2 acts of the government by reason of [the entity’s] significant or even total
3 engagement in performing public contracts”).
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Finally, plaintiff’s bare allegations that defendant Azinkhan was “at all times

5 [] acting under color of state law” and/or was “acting for and on behalf of the
6 California Department of Corrections” (Comp. at 4), without more, are insufficient
7 to state a cognizable Section 1983 claim against the private defendant. See, e.g.,
8 DeGrassi, 207 F.3d at 647 (“[A] bare allegation of [] joint action will not overcome
9 a motion to dismiss; the plaintiff must allege “facts tending to show . . . [acts] under
10 color of state law or authority.”) (citation, internal quotation marks, and brackets
11 omitted); see also Iqbal, 556 U.S. at 680-84 (conclusory allegations in complaint
12 which amount to nothing more than a “formulaic recitation of the elements” are
13 insufficient under pleading standard in Fed. R. Civ. P. 8) (citations omitted).
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2.

Defendant Sharper Future

The Complaint also fails plausibly to allege that Sharper Future is liable

16 under Section 1983 for any deprivation of plaintiff’s constitutional rights under
17 color of state law. Plaintiff does not allege facts which plausibly suggest that
18 Sharper Future, which allegedly contracted with California to provide the mental
19 health services plaintiff was required to attend, maintained a policy, decision, or
20 custom which in any way caused a deprivation of plaintiff’s constitutional rights,
21 much less one that may properly be attributed to the government for purposes of
22 Section 1983. Plaintiff’s conclusory allegation that “Sharper Future . . . created an
23 atmospher[e] where [] mistreatment was tol[e]rated and condoned” (Comp. at 6),
24 without more, is insufficient. Cf., e.g., AE ex rel. Hernandez v. County of Tulare,
25 666 F.3d 631, 636-37 (9th Cir. 2012) (To survive motion to dismiss complaint must
26 contain “factual allegations that . . . plausibly suggest an entitlement to relief, such
27 that it is not unfair to require the opposing party to be subjected to the expense of
28 discovery and continued litigation” – a “bare allegation” that officer’s conduct
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1 conformed to unspecified government policy, custom or practice is insufficient.)
2 (citations and internal quotation marks omitted).
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Doe Defendants

As noted above, the Complaint names ten Doe Defendants. (Comp. at 1).

5 While the Local Rules permit plaintiff to sue up to ten unidentified “Doe”
6 defendants (see Local Rule 19-1), as a general rule the use of fictitiously named
7 parties is disfavored in federal court. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th
8 Cir. 1980). Moreover, since plaintiff has not made individualized allegations about
9 any of the Doe Defendants, such unidentifiable defendants may be dismissed from
10 the Complaint. See id.; McConnell v. Marine Engineers Beneficial Association
11 Benefit Plans, District 1 - Pacific Coast District, 526 F. Supp. 770, 774 (N.D. Cal.
12 1981). At a minimum, plaintiff must refer to each unidentified defendant by a
13 separate fictitious name (i.e., “John Doe # 1,” “John Doe # 2,” etc.) and allege facts
14 that demonstrate a causal link between each such individual’s actions under color of
15 law and an alleged constitutional violation.
16 V.

ORDERS

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In light of the foregoing, IT IS HEREBY ORDERED:

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1.

The Complaint is dismissed with leave to amend. If plaintiff intends

19 to pursue this matter, he shall file a First Amended Complaint within fourteen (14)
20 days of the date of this Order which cures the pleading defects set forth herein.1
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Any First Amended Complaint must: (a) be labeled “First Amended Complaint”; (b) be
complete in and of itself and not refer in any manner to the original Complaint – i.e., it must
include all claims on which plaintiff seeks to proceed (Local Rule 15-2); (c) contain a “short and
plain” statement of the claim(s) for relief (Fed. R. Civ. P. 8(a)); (d) make each allegation
“simple, concise and direct” (Fed. R. Civ. P. 8(d)(1)); (e) present allegations in sequentially
numbered paragraphs, “each limited as far as practicable to a single set of circumstances” (Fed.
R. Civ. P. 10(b)); (f) state each claim founded on a separate transaction or occurrence in a
separate count as needed for clarity (Fed. R. Civ. P. 10(b)); (g) set forth clearly the sequence of
events giving rise to the claim(s) for relief; (h) allege specifically what each defendant did and
how that defendant’s conduct specifically violated plaintiff’s civil rights; and (i) not change the
(continued...)

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2.

In the event plaintiff elects not to proceed with this action, he shall

2 sign and return the attached Notice of Dismissal by the foregoing deadline which
3 will result in the voluntary dismissal of this action without prejudice.
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3.

Plaintiff is cautioned that, absent further order of the Court,

5 plaintiff’s failure timely to file a First Amended Complaint or Notice of
6 Dismissal, may be deemed plaintiff’s admission that amendment is futile, and
7 may result in the dismissal of this action with or without prejudice on the
8 grounds set forth above, on the ground that amendment is futile, for failure
9 diligently to prosecute and/or for failure to comply with the Court’s Order.
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IT IS SO ORDERED.

11 DATED: July 25, 2017
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HONORABLE JAMES V. SELNA
UNITED STATES DISTRICT JUDGE

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(...continued)
nature of this suit by adding new, unrelated claims or defendants, cf. George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007) (civil rights plaintiff may not file “buckshot” complaints – i.e., a
pleading that alleges unrelated violations against different defendants).

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