William J Schmart v. City of San Bernardino et al

Filing 2

ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg. Response to Order to Show Cause due by 5/8/2014. On March 31, 2014, Plaintiff filed a Request to Proceed in Forma Pauperis (Request)and lodged a complaint pursuant to 42 U.S.C. § 1983 . For the reasons discussed below, the court finds that the complaint fails to state a claim upon which relief may be granted. If Plaintiff chooses to amend his complaint, he must allege facts that support an exception to the rule or he cannot name Ramires as a defendant. Plaintiff is therefore ORDERED, on or before May 8, 2014, to show cause why the Request should not be denied because the complaint fails to state a claim. Alternatively,Plaintiff may lodge a first amended complaint in conformance with the above legal standards. If Plaintiff fails to file a timely response to this order, the Request is subject to dismissal. (See Order for details.) (mp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 14-623-UA (AGR)

Title

William J. Schmart v. City of San Bernardino

Present: The
Honorable

Date

April 8, 2014

Alicia G. Rosenberg, United States Magistrate Judge

Marine Pogosyan

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff

Attorneys Present for Defendants

None

None

Proceedings:

In Chambers: ORDER TO SHOW CAUSE

On March 31, 2014, Plaintiff filed a Request to Proceed in Forma Pauperis (“Request”)
and lodged a complaint pursuant to 42 U.S.C. § 1983. For the reasons discussed below, the
court finds that the complaint fails to state a claim upon which relief may be granted.
Plaintiff names two defendants: the City of San Bernardino (“City”) and Brenda
Ramires. (Complaint ¶¶ 1-2.) On or before July 31, 2012, Plaintiff was trying to obtain housing
assistance. He was told he could not obtain assistance because there were criminal charges
pending against him. (Id. ¶ 11.) On July 31, 2012, Plaintiff was arraigned in San Bernardino
Superior Court on charges of two accounts of contempt of court, one count of annoying and
repeated phone calls, and one count of obscene and harassing phone calls. (Id. ¶ 12.) Ramires,
who was the apparent recipient of the phone calls, “claimed that she had to hear from Plaintiff.”
(Id. ¶ 13.) However, the management of the apartment in which Plaintiff resided “were
harassing [Plaintiff], and later stole $300,000 of his belongings.” “[S]ome of the calls were
allegedly made because of the management['s]” harassment. (Id.) “The charges against Plaintiff
were filed on behest of the . . . management to prevent Plaintiff from obtaining housing
assistance, thereby attempting to make Plaintiff homeless.” (Id. ¶ 15.) On March 5, 2013, the
criminal case against Plaintiff was dismissed. (Id. ¶ 14.)
Plaintiff alleges claims of malicious prosecution and abuse of process,1 and requests
damages. (Id. at 10-11.)
The complaint has no allegations against the City. If Plaintiff chooses to amend his
complaint, he must allege facts in support of the City’s deprivation of his constitutional rights, or
he cannot name the City.

1

These are the second and third causes of action. Plaintiff's first cause of action, which alleges
the same facts and states he is making the two succeeding claims (see Complaint ¶ 3), is superfluous.
CV-90 (06/04)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 14-623-UA (AGR)

Date

Title

April 8, 2014

William J. Schmart v. City of San Bernardino

Ramires is a private actor. Generally, a plaintiff cannot state a § 1983 claim against a
private actor. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939, 102 S. Ct. 2744, 73 L.
Ed. 2d 482 (1982) (“Action by a private party . . ., without something more, [is] not sufficient to
justify a characterization of that party as a ‘state actor.’”). If Plaintiff chooses to amend his
complaint, he must allege facts that support an exception to the rule or he cannot name Ramires
as a defendant.
Plaintiff is therefore ORDERED, on or before May 8, 2014, to show cause why the
Request should not be denied because the complaint fails to state a claim. Alternatively,
Plaintiff may lodge a first amended complaint in conformance with the above legal standards. If
Plaintiff fails to file a timely response to this order, the Request is subject to dismissal.

Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

mp

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