Acord v. Champions Recovery Alternatives et al

Filing 8

FIndings and Recommendations that this case be dismissed, with prejudice, for failure to state a claim, failure to prosecute, and failure to comply with court order, signed by Magistrate Judge Erica P. Grosjean on 5/7/2018. Matter referred to Judge O'Neill. Objections to F&R due by 6/1/2018. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ACORD,

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Plaintiff,
v.

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CHAMPIONS RECOVERY
ALTERNATIVES, et al.

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Defendants.

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FINDINGS AND RECOMMENDATIONS
THAT THIS CASE BE DISMISSED, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM, FAILURE TO PROSECUTE, AND
FAILURE TO COMPLY WITH COURT
ORDER
(ECF No. 1)
OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE (21) DAYS

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Case No. 1:17-cv-01145-LJO-EPG

On August 25, 2017, Richard Acord (“Plaintiff”), appearing pro se and in forma pauperis,

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commenced this action pursuant to 42 U.S.C. § 1983 by the filing of a Complaint. (ECF No. 1).

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The Complaint alleges that Defendants Champions Recovery Alternatives, Maria Stevens, Randy

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Hano, and Coven Hardcastle breached their contractual, legal, and moral obligation to maintain

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Plaintiff’s confidentiality.

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On January 30, 2018, the Court screened the Complaint and determined that it fails to

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state any cognizable claims. (ECF No. 7). Specifically, the Court concluded that Plaintiff failed to

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allege that Defendants are state actors or acted under the direction of or in cooperation with any

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state actor. Id.

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The screening order directed Plaintiff to file an amended complaint or notify the Court

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that he wishes to stand on the Complaint, subject to the issuance of findings and

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recommendations to the assigned district judge, within thirty days of service of the order. Id. The

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Court also warned Plaintiff that failure to file an amended complaint or to notify the court that he

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wishes to stand on the Complaint could result in the dismissal of this case. Id.

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The thirty-day period has expired, and Plaintiff has not filed an amended complaint or

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notified the Court that he wishes to stand on the Complaint. Accordingly, the Court recommends

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that this action be dismissed, with prejudice, for failure to state a claim, failure to prosecute, and

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failure to comply with a court order. Plaintiff may file objections within twenty-one days from

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the date of service of these findings and recommendations.
I.

SCREENING REQUIREMENT
Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of an in forma pauperis

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complaint to determine whether it “state[s] a claim on which relief may be granted,” is “frivolous

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or malicious,” or “seek[s] monetary relief against a defendant who is immune from such relief.” If

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the Court determines that the complaint fails to state a claim, it must dismiss the complaint. Id.

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Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured

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by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

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at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal

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conclusions are not. Id. at 678.

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In determining whether a complaint states an actionable claim, the Court must accept the

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allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740

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(1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v.
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Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins

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v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less

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stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342

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(9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after

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Iqbal).

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II.

PLAINTIFF’S ALLEGATIONS
Plaintiff alleges that in July and August 2016, he was a client of Champions Recovery

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Alternatives’ Samuels’ House Residential Treatment Program and a client of the other

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Defendants. Defendants have a contractual, legal, and moral obligation to maintain client

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confidentiality, even after clients are discharged from their treatment programs, unless

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information about the client becomes public through the filing of a criminal complaint.

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Plaintiff was discharged from the treatment program without warning, and without an

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opportunity to defend himself, when he was allegedly involved in an incident with a female staff

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member of Samuels’ House. No charges were brought against Plaintiff for the alleged incident.

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Plaintiff was, however, on house arrest through the “Kings County E.M.S. System” and was

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returned to custody due to his discharge from Samuels’ House.

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During the booking process, Plaintiff called Robert Jeffries, a resident of Samuels’ House,

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who said, “Don’t worry brother, I’m going to squash that bullshit.” This, Plaintiff alleges, serves

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as evidence that Defendants breached their duty of client confidentiality almost immediately upon

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his removal from Samuels’ House by Kings County E.M.S. officers. During the booking process,

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Plaintiff was also approached by Kings County Jail Classification staff regarding concerns for his

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safety in the jail population due to the nature of the alleged incident at Samuels’ House. This,

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Plaintiff alleges, serves as evidence that Kings County Jail had knowledge of Plaintiff’s phone

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call with Mr. Jeffries, or that Samuels’ House breached their duty of client confidentiality.

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Plaintiff further alleges that he has had to answer numerous allegations and accusations in

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person and on social media regarding his alleged behavior in the fourteen months since his

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discharge from Samuels’ House. He has been threatened numerous times due to the allegations

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made against him at Samuels’ House. Plaintiff was returned to the custody of Kings County Jail
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on an unrelated matter on June 22, 2017. He has been physically assaulted by multiple inmates as

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a direct result of his discharge from Samuels’ House. Plaintiff believes there can be no other

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explanation for the accusations, threats, and assault he has incurred, other than Samuels’ House’s

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breach of client confidentiality.

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III.

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DISCUSSION
A. Section 1983 Liability
To state a claim under § 1983, a plaintiff “must allege a violation of a right secured by the

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Constitution and laws of the United States, and must show that the alleged deprivation was

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committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)

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(emphasis added). Private parties are not generally acting under color of state law for the

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purposes of § 1983. Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (“Careful adherence to

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the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of

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federal law and federal judicial power. It also avoids imposing on the State, its agencies or

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officials, responsibility for conduct for which they cannot fairly be blamed”).

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Nevertheless, in some circumstances, the actions of a private actor may render them liable

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under § 1983. Under the “public function test,” private individuals or entities may be deemed

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state actors for purposes of § 1983 when they perform a public function that has been

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“traditionally the exclusive prerogative of the State.” Rendell–Baker v. Kohn, 457 U.S. 830, 842

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(1982) (citations and quotation marks omitted; emphasis in original). “That a private entity

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performs a function which serves the public does not make its acts state action.” Id.

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Under the joint action test, a private individual may be liable as a state actor under § 1983

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if he or she was part of a conspiracy or was a “willful participant in [other] joint action” with a

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state actor that caused the constitutional violation. Franklin v. Fox, 312 F.3d 423, 445 (9th Cir.

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2002). “To prove a conspiracy between private parties and the government under § 1983, an

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agreement or ‘meeting of the minds’ to violate constitutional rights must be shown.” Fonda v.

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Gray, 707 F.2d 435, 438 (9th Cir. 1983). “To be liable as a co-conspirator, a private defendant

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must share with the public entity the goal of violating a plaintiff’s constitutional rights.” Franklin

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v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). “The Ninth Circuit requires a ‘substantial degree of
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cooperation’ between the government and a private citizen before finding such a conspiracy.”

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Annan-Yartey v. Honolulu Police Dep’t, 475 F.Supp.2d 1041, 1046 (D. Haw. 2007)(quoting

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Franklin, 312 F.3d at 445).

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Plaintiff alleges that Defendants caused severe damage to his name, reputation, and

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standing in his community by violating his right to client confidentiality. Defendants do not

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appear to be governmental entities or officers or employees of a governmental entity.

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Furthermore, Plaintiff does not allege that Defendants undertook any action under the direction of

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or in cooperation with any state actor. Thus, Plaintiff fails to state a cognizable claim under §

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1983.

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B. Failure to Prosecute and to Comply with a Court Order

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Plaintiff has failed to comply with the screening order, which directed him to file an

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amended complaint or notify the Court that he wishes to stand on the Complaint within thirty

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days of its service. (ECF No. 7). The order was served on January 30, 2018. Id. Plaintiff has

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failed to timely file an amended complaint, and has not otherwise prosecuted this action.

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Courts may impose sanctions, including dismissal, as part of their inherent power “to

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manage their own affairs so as to achieve the orderly and expeditious disposition of cases” or

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based on a failure to comply with court orders. Chambers v. NASCO, Inc., 501 U.S. 32, 43

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(1991); Pagtalunan v. Galazza, 291 F.3d 639, 642 (9th Cir. 2002). A court may dismiss an action

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based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply

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with local rules. Fed. R. Civ. P. 41(b); L.R. 110; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)

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(citing United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)) (dismissal for noncompliance

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with local rule); Malone v. United States Postal Serv., 833 F.2d 128, 134 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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“In determining whether to dismiss [an action] for failure to prosecute or failure to comply

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with a court order, the Court must weigh the following factors: (1) the public=s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,
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642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
First, the public’s interest in expeditious resolution of litigation and the court’s need to

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manage its docket always favor dismissal. Id. (quoting Yourish v. California Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999)). Thus, these factors weigh in favor of dismissal.

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Second, the public policy favoring disposition on the merits always weighs against
dismissal. Id.
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay

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inherently increases the risk that witnesses’ memories will fade and evidence will become stale,”

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id. at 643, and it is Plaintiff’s failure to file an amended complaint or to notify the Court that he

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wishes to stand on the Complaint that is causing delay. The Court found that the Complaint fails

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to state a claim over three months ago. The case is now stalled until Plaintiff files an amended

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complaint or notifies the Court that he wishes to stand on the Complaint. Therefore, the third

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factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court that would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of

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little use, considering Plaintiff’s in forma pauperis status, and given the stage of these

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proceedings, the preclusion of evidence or witnesses is not available.

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Thus, after weighing the factors, the Court finds that dismissal with prejudice is

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appropriate.

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IV.

CONCLUSION AND RECOMMENDATIONS

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The Court finds that the Complaint fails to state any cognizable claim upon which relief

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may be granted under § 1983. Furthermore, Plaintiff has failed to comply with the screening

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order, which directed him to file an amended complaint or notify the Court that he wishes to stand

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on the Complaint. Plaintiff has failed to timely file an amended complaint, and has not otherwise

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prosecuted this action.

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Accordingly, the Court HEREBY RECOMMENDS that:
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1. Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), Fed. R. Civ. P. 41(b), and L.R. 110, this

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action be DISMISSED, with prejudice, based on Plaintiff=s failure to state a claim

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upon which relief may be granted under § 1983, as well as his failure to comply

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with a court order and failure to prosecute this action; and

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2. The Clerk of Court be directed to close this case.

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These findings and recommendations are submitted to the district judge assigned to the

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case, pursuant to the provisions of 28 U.S.C. ' 636(b)(l). Within twenty-one (21) days after being

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served with these findings and recommendations, Plaintiff may file written objections with the

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court. Such a document should be captioned, “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 7, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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