Dominguez v. CVS Pharmacy, Inc.

Filing 6

ORDER signed by Magistrate Judge Allison Claire on 11/10/2014 SUMMARILY DISMISSING this action. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FELICITAS DOMINGUEZ,

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No. 2:14-cv-2451 AC P

Plaintiff,
v.

ORDER

CVS PHARMACY,
Defendant.

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Plaintiff, a Solano County inmate proceeding pro se, seeks relief pursuant to 42 U.S.C. §

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1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has consented to the jurisdiction of the undersigned. ECF No. 5.

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Plaintiff’s request to proceed in forma pauperis is deficient in that plaintiff has not filed a

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certified copy of her prison trust account statement for the six month period immediately

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preceding the filing of the complaint, or the equivalent institutional certificate (which would be

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completed by plaintiff’s institution of incarceration). See 28 U.S.C. § 1915(a)(2) (requiring a

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“certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for

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the 6-month period immediately preceding the filing of the complaint”). However, because the

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court’s review of the complaint demonstrates that it is subject to summary dismissal, the court

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will not require an amended in forma pauperis request or assess a filing fee.
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In her complaint, plaintiff alleges that she entered a CVS store on her birthday, April 14,

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2014, with the intention of perusing the new fragrances and make-up. She also intended to buy

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an Arizona tea as she “always” did. However, someone from the store’s security staff informed

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her that she had to leave and could not remain in the store. Plaintiff alleges she has been a

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customer for more than twelve years and has a CVS card. Plaintiff also claims that she was hurt

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and needed either an ambulance or a first aid kit because she had been “jumped in there [sic]

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parking lot.” The cashier did not provide requested assistance and did not call “911.” Plaintiff

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adds that at some undefined time in the past, “security did the same thing” when she had needed

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to fill a prescription. Plaintiff alleges that she has been subject to defamation and slander and

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claims to have been subjected to “emotional, physical and mental anguish due to there [sic] public

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display of” indifference. ECF No. 1.

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As relief, plaintiff seeks “a public apology and [$]70, 000.00 restitution.” Id.

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Plaintiff’s complaint must be dismissed. The civil rights statute under which plaintiff

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purports to bring suit, 42 U.S.C. § 1983, provides a mechanism for suing state officials for

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violations of federal constitutional rights. It does not provide a basis for suing private actors. The

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only defendant that plaintiff names, CVS Pharmacy, is a corporate entity. Plaintiff makes no

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allegation that defendant CVS or any of its unnamed employees acted under color of state law, as

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required for a claim under § 1983. Under Section 1983, a “plaintiff must demonstrate a

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deprivation of a right secured by the Constitution or laws of the United States, and that the

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defendant acted under color of state law.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.

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2003) (emphasis added) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Because CVS Pharmacy

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is not alleged to be a state actor, and any such allegation would be frivolous, a § 1983 claim will

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not lie.

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Moreover, even if plaintiff were proceeding against a proper § 1983 defendant, claims of

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slander and defamation are not federal constitutional claims but state law tort claims. See Cal.

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Code Civ. P. §§ 44, 46. Defamation can only support § 1983 liability under certain circumstances

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that implicate federal rights. As the Ninth Circuit has explained, “There are two ways to state a

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cognizable § 1983 claim for defamation-plus: (1) allege that the injury to reputation was inflicted
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in connection with a federally protected right; or (2) allege that the injury to reputation caused the

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denial of a federally protected right.” Crowe v. County of San Diego, 608 F.3d 406, 444 (9th Cir.

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2010) (quoting Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir.1999)).

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Plaintiff’s allegations here simply do not rise to the level of a federal constitutional deprivation.

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Dismissal without leave to amend is only proper where it is clear that a claim “could not

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be saved by any amendment.” Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940,

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946 (9th Cir. 2005). It is this court’s determination that the defects of this complaint could not be

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cured by amendment, as the complaint seeks to implicate an improper defendant for conduct that

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does not rise to the requisite level to proceed under section 1983.

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Accordingly, IT IS ORDERED that this action is summarily DISMISSED.
DATED: November 10, 2014

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