Ogg v. Weiss et al

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K Delaney on 8/7/11, RECOMMENDING that this action be dismissed. Plaintiff's Amended Complaint 7 and this case are referred to Judge Mueller. Within14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Any reply to the objections shall be served and filed within seven days after service of the objections. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROSE OGG,
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Plaintiff,

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No. CIV S-11-791 KJM CKD PS

vs.
DANIEL WEISS, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has

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filed a second amended complaint. The federal in forma pauperis statute authorizes federal

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courts to dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon

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which relief may be granted, or seeks monetary relief from a defendant who is immune from such

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relief. 28 U.S.C. § 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Plaintiff has filed three complaints in this action. Although plaintiff’s second

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amended complaint remains vague and conclusory, it appears that plaintiff is alleging a violation

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of her civil rights in connection with an alleged assault upon her person by an attorney

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representing plaintiff in a legal matter. Plaintiff also complains that her civil rights were violated

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because the deputy Sheriffs who were called to the scene of the altercation failed to arrest the

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attorney. The second amended complaint does not cure the deficiencies evident in the original

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and first amended complaints.

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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

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was acting under color of state law at the time the complained of act was committed; and (2)

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defendant’s conduct deprived plaintiff of rights, privileges or immunities secured by the

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Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48

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(1988). As explained to plaintiff in the court’s prior orders, (dkt. nos. 4,6), there is no

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constitutional right to have another person arrested; thus, no claim can lie against the defendant

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sheriff’s deputies. See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 767 (2005) (no

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due process claim where police failed to arrest alleged violator of restraining order). In addition,

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there is no allegation that the defendant attorney is anything other than a private actor and

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therefore plaintiff fails to plead the requisite state action by this defendant. See Franklin v. Fox,

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312 F.3d 423, 445 (9th Cir. 2002) (four tests articulated by the Supreme Court for determining

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whether a private party’s conduct constitutes state action).

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It also appears this action is time barred. The court takes judicial notice of the

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original complaint in which plaintiff alleges the incident giving rise to the claims herein occurred

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in the year 2003. The statute of limitations of the state in which the claim arises governs civil

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rights actions under 42 U.S. C. § 1983. See Donoghue v. County of Orange, 848 F.2d 926, 929

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(9th Cir. 1987). Section 1983 actions are characterized as personal injury actions for purposes of

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identifying the applicable statute of limitations. See Wilson v. Garcia. 471 U.S. 261, 268-71, 276

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(1985); Bianchi v. Bellingham Police Dep’t, 909 F.2d 1316, 1317 (9th Cir. 1990). In California,

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the applicable statute of limitations is two years. Cal. Code Civ. Proc. § 335.1; Maldonado v.

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Harris, 370 F.3d 945, 954 (9th Cir. 2004). Plaintiff asserts this action is not barred by the statute

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of limitations because she was exhausting administrative remedies. In the context of the instant
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action, there is no administrative exhaustion required. Cf. 42 U.S.C. § 1997e(a) (administrative

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exhaustion required in section 1983 actions brought by prisoners). Plaintiff alleges no other basis

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for tolling the statute of limitations. Plaintiff’s claims therefore became time barred no later than

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the year 2006, five years prior to the filing of the pending action.

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Plaintiff has now filed three complaints in this action. Although repeatedly

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advised of the deficiencies in her pleadings, plaintiff’s second amended complaint fails to set

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forth facts which would state a claim under 42 U.S.C. § 1983 and which is not time barred.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen days after being served with these findings and recommendations, any party may file

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written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 7, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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