Singh, et al v. Fernandes, et al

Filing 6

FINDINGS and RECOMMENDATIONS, recommending that action be dismissed for lack of subject matter jurisdiction, signed by Magistrate Judge Carolyn K. Delaney on 1/26/2016. These Findings & Recommendations are SUBMITTED to Judge Morrison C. England, Jr.. Within 14 days after being served with these F & Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAJ SINGH, et al.,

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No. 2:15-cv-2663 MCE CKD PS

Plaintiffs,
v.

FINDINGS AND RECOMMENDATIONS

TAMMY FERNANDES, et al.,
Defendants.

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By order filed January 6, 2016, plaintiff was ordered to show cause why this action should

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not be dismissed for lack of subject matter jurisdiction. Plaintiffs have filed a response to the

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order to show cause. ECF No. 4.

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The complaint names as defendants plaintiffs’ former tenant and the attorneys who

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represented the former tenant in a state court action against plaintiffs. Plaintiffs allege that

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defendants violated their constitutional rights. However, defendants do not appear to be state

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actors and therefore a claim under the Civil Rights Act, 42 U.S.C. § 1983, cannot lie.

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In the response to the order to show cause, plaintiffs assert that defendants should be

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considered state actors. Defendants do not meet any of the four tests articulated by the Supreme

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Court for determining whether a private party’s conduct constitutes state action. Franklin v. Fox,

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312 F.3d 423, 445 (9th Cir. 2002) (private individual’s action can amount to state action under (1)

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public function test, (2) joint action test, (3) state compulsion test, or (4) governmental nexus
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test). Plaintiffs here, in conclusory fashion, assert that defendants conspired to deprive plaintiffs

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of their constitutional rights. It appears plaintiffs are contending defendants are state actors under

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the joint action test. Plaintiffs fail to set forth facts sufficient to hold defendants liable as state

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actors. See Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002) (to be liable as a co-conspirator,

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private individual must share with public entity the goal of violating plaintiff’s constitutional

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rights). Because it does not appear plaintiffs can allege facts, within the strictures of Federal Rule

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of Civil Procedure 11, that would support a claim that defendants are state actors and plaintiffs set

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forth no other proper basis for subject matter jurisdiction, the complaint should be dismissed.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of
subject matter jurisdiction.

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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, any party may file written

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objections with the court and serve a copy on all parties. 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. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 26, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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