Iegorova v. Kristyuk et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 7/12/15 recommending that plaintiff's 4 First Amended Complaint be dismissed without leave to amend. F&R referred to Judge Troy L. Nunley. Objections to F&R due within fourteen days. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LIUDMYLA IEGOROVA,
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Plaintiff,
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v.
No. 2:15-cv-00742-TLN-AC
FINDINGS & RECOMMENDATIONS
TARAS KRISTYUK, et al.,
Defendants.
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Plaintiff, proceeding in this action pro se and in forma pauperis, has filed a first amended
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complaint (“FAC”), ECF No. 4, after her original pleading was dismissed for lack of subject
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matter jurisdiction, ECF No. 3. The federal in forma pauperis statute authorizes federal courts to
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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which
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relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.
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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 (9th
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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. A complaint, or portion thereof, should only be dismissed for failure to state a
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claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set
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of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &
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Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v.
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Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a
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complaint under this standard, the court must accept as true the allegations of the complaint in
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question, Hosp. Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in
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the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.
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McKeithen, 395 U.S. 411, 421 (1969).
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The court finds that plaintiff’s FAC fails to state a claim on which relief can be granted.
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According to the title page of plaintiff’s FAC, she seeks to bring claims concerning the violation
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of her constitutional rights against defendants. ECF No. 4 at 1. The court, therefore, construes
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plaintiff’s FAC as asserting § 1983 claims against defendants. “To state a claim under § 1983, a
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plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of
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the United States was violated, and (2) that the alleged violation was committed by a person
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acting under the color of State law.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th
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Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Section 1983 “shields citizens from
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unlawful government actions, but does not affect conduct by private entities.” Apao v. Bank of
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N.Y., 324 F.3d 1091, 1093 (9th Cir. 2003), cert. denied, 540 U.S. 948 (2003); Sutton v.
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Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (“‘[T]he party charged with a
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constitutional deprivation under § 1983 must be a person who may fairly be said to be a
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[governmental] actor.’”). Section “1983 excludes from its reach merely private conduct, no
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matter how discriminatory or wrong.” Sutton, 192 F.3d at 835 (citing American Mfrs. Mut. Ins.
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Co. v. Sullivan, 526 U.S. 40, 50 (1999)). Defendants are private actors. Plaintiff does not allege
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otherwise, nor does she allege that they acted under color of state law.1 Accordingly, the court
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will dismiss plaintiff’s § 1983 claims.
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The court also finds that plaintiff’s FAC does not comply with Federal Rule 8. Plaintiff’s
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Plaintiff does allege that the federal government can be held liable for the actions of immigrants
simply by virtue of their immigration status. ECF No. 4 at 2–3. This is not the case, and
regardless would not affect whether defendants’ actions were performed under color of state law.
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FAC does not contain a short and plain statement showing she is entitled to relief. See Fed. R.
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Civ. P. 8(a). Nor is plaintiff’s FAC simple, concise, or direct. See Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555 (2007). Rather, plaintiff’s FAC consists of long, rambling and
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incoherent allegations with no clear connection to any claim. Plaintiff’s FAC does describe an
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assault by an individual named “Anatoliy” that took place at Mist. ECF No. 4 at 34. However,
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plaintiff does not explain why defendant Mist should be held liable for that assault, or how
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defendant Kristyuk was involved, if at all. The court finds that such allegations do not meet
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Federal Rule 8’s pleading standards.
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The court previously granted plaintiff leave to amend with instructions on how to amend
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her complaint in compliance with Rule 8. Nonetheless, plaintiff’s FAC still consists almost
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entirely of rambling and nonsensical allegations. As plaintiff has had ample opportunity to
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correct the deficiencies in her complaint, and she continues to make the same conclusory and
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incoherent allegations against private defendants that are not liable for violations of § 1983, the
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court finds that any further attempt to amend would be futile.
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Accordingly, THE COURT HEREBY RECOMMENDS that plaintiff’s FAC, ECF No. 4,
be dismissed without leave to amend.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. Id.; see also Local Rule 304(b). Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156–57 (9th Cir.
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1991).
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DATED: July 12, 2015
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