Cortez v. Walmart Store et al

Filing 8

ORDER Dismissing Action with Prejudice, For Failure to State a Claim Upon Which Relief May be Granted Under Section 1983 7 , signed by Judge Oliver W. Wanger on 6/27/11. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT CORTEZ,

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CASE NO. 1:11-cv-00900-OWW-GBC (PC)
Plaintiff,
ORDER DISMISSING ACTION WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER SECTION 1983
(Doc. 7)

v.
WALMART STORE, et al.,

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Defendants.

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I.

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Plaintiff Robert Cortez (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on June 3, 2011. (Doc. 1). Plaintiff

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filed a first amended complaint on June 20, 2011.

Procedural Background

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II.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

Screening Order of First Amended Complaint filed June 20, 2011

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Plaintiff’s claim is the following:

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When I was a toddler, I was placed on this property that Walmart is built on at
Herndon and Ingram, Fresno CA, 93650. Between 1974 and 1980, adults placed me
in a house where I was abused and placed on a steel beam. The beam had metal slag

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from a cutting process and oil was placed on the beam, as I crossed over it, which
resulted in my penis and testicles to be severed off. As I bled, A woman I think is
C/O M. Pina somehow helped me get medical attention. Growing up I did not have
feeling in this area of my body. This problem affected all portions of my life. I feel
asleep from the loss of blood. I asked to be placed in the dirt to sleep and have been
under investigation since of before this incident. My life has been oppressed by law
enforcement over this compan[y’s] abuse of influence. I don’t want to die or lose my
freedom to rich and powerful people. They plant evidence on me and pay for
testimony.

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(Doc. 7 at 4-5). The first amended complaint continues to detail what happen to his severed penis

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as a child and other childhood experiences and rambles on incoherently throughout the rest of the

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complaint. (Doc. 7 at 6-9). As relief, Plaintiff seeks punitive, monetary damages and injunctive

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relief which includes a request for a “cell phone chrono” and for the Court to stop unidentified

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people from blaming Plaintiff “for things.” (Doc. 1 at 2). Plaintiff lists Wal Mart and Parole Agent

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Joe Chacon as defendants. (Doc 7. At 12).

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under

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color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal

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law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Generally, private parties

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are not acting under color of state law. Brentwood Academy v. Tennessee Secondary School Athletic

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Assoc., 531 U.S. 288, 295, 121 S.Ct. 924, 930 (2001); Single Moms, Inc. v. Montana Power Co., 331

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F.3d 743, 746-47 (9th Cir. 2003); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th

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Cir. 1999); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). Moreover, Plaintiff must set forth

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“sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 129

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S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are

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accepted as true, legal conclusion are not, id. at 1949.

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Plaintiff’s complaint fails to state any claims upon which relief may be granted. The

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questionable nature of Plaintiff’s claims aside, the complaint is against Walmart which is not a

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government actor and Plaintiff fails to link any conduct to the rest if the named defendants.

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Plaintiff’s incoherent allegations of harm stemming from childhood do not give rise to any facially

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plausible claims for relief. See Iqbal at 1949-50.

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IV.

Conclusion and Order
Plaintiff’s complaint fails to state any claims upon which relief may be granted. Accordingly,

it is HEREBY ORDERED that:

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This action is dismissed, with prejudice, for failure to state a claim;

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2.

This dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g); and

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The Clerk’s Office shall enter judgment.

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IT IS SO ORDERED.

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Dated:
June 27, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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