Robinson v. Sierra College et al

Filing 8

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/23/12: ORDERING that plaintiff's request to proceed in forma pauperis is denied 2 . Recommending that the action be dismissed with prejudice, and the case be closed. F&R referred to Judge John A. Mendez. Objections to F&R due within fourteen days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY ALLEN ROBINSON,

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Plaintiff,

No. CIV S-12-0400 JAM CKD PS

vs.

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SIERRA COLLEGE et al.,

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Defendants.

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ORDER AND
FINDINGS AND RECOMMENDATIONS
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This action was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant

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to 28 U.S.C. § 636(b)(1). Plaintiff, proceeding in this action pro se, has requested leave to

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proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Pursuant to 28 U.S.C. § 1915(e)(2), the

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court is directed to dismiss the case at any time if it determines the allegation of poverty is

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untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be

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granted, or seeks monetary relief against an immune defendant.

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As an initial matter, the court notes that plaintiff’s affidavit in support of the

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application to proceed in forma pauperis is incomplete. For example, despite indicating that he

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has received money in the last twelve months from a business, profession, or other self-

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employment, as well as from disability or workers compensation payments, plaintiff does not

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state the amount received from each source and what he expects to continue to receive. (See Dkt.

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No. 2 at 1.) Furthermore, he bizarrely lists his assets as “King of the South,” “Morocco,” “Saudi

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Arabia,” “Emperor of the world,” and “In Torah, Jesus.” (Dkt. No. 2 at 2.) Ordinarily, plaintiff

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would be provided an opportunity to submit either the appropriate affidavit in support of a

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request to proceed in forma pauperis or the appropriate filing fee. However, as discussed below,

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the court also finds that the action is frivolous and fails to state a claim on which relief may be

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granted, and that leave to amend would be futile.

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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. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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To avoid dismissal for failure to state a claim, a complaint must contain more than

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

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cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[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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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519,

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520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th

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Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se

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plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before

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dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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Here, plaintiff’s complaint purports to state a claim under 42 U.S.C. § 1983

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against defendant Telecare Corporation. Plaintiff’s sole allegations are that his religious liberty

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was violated and that he was unlawfully detained by defendant Telecare Corporation without due

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process, violating his substantive rights under the United States Constitution. He requests that

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the court lawfully detain him or release the “illegal detainer” by defendant Telecare Corporation.

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The complaint contains no allegations regarding defendant Sierra College. (See Dkt. No. 1 at 3.)

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Plaintiff’s claim under 42 U.S.C. § 1983 against defendant Telecare Corporation

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is fatally deficient, because plaintiff does not allege state action. The Civil Rights Act provides

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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. 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). Not only are the alleged constitutional violations entirely conclusory and unsupported by

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any factual allegations, but plaintiff does not allege that defendant Telecare Corporation is a state

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actor. Nor does it appear that plaintiff can do so, consonant with the strictures of Federal Rule of

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Civil Procedure 11, given that defendant Telecare Corporation is a private entity with no alleged

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governmental nexus.

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Additionally, any claim under 42 U.S.C. § 1983 against defendant Sierra College

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is barred by the Eleventh Amendment. As a California community college, it is a dependent

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instrumentality of the State of California and cannot be sued in federal court. See Cerrato v. San

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Francisco Community College Dist., 26 F.3d 968, 972 (9th Cir. 1994) (citing Mitchell v. Los

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Angeles Community College Dist., 861 F.2d 198 (9th Cir. 1988)); see also Young v. Reedley

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Community College, 2012 WL 253213, at *4 (E.D. Cal. Jan. 26, 2012).

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Although the court would ordinarily grant a pro se plaintiff leave to amend, it does

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not appear that the above-mentioned defects can be cured through further amendment. Plaintiff’s

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complaint is patently frivolous, and leave to amend would be futile.

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Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that
plaintiff’s request to proceed in forma pauperis (dkt. no. 2) is denied.

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IT IS ALSO HEREBY RECOMMENDED that:

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1. The action be dismissed with prejudice, and

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2. The case be closed.

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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 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: February 23, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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CKD/5

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Robinson.400.ifp-fr.wpd

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