James v. Harden

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/22/2016 RECOMMENDING that this action be dismissed for lack of subject matter jurisdiction. Referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TYRONE JAMES,

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Plaintiff,

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No. 2:16-cv-1730 KJM CKD PS

v.

FINDINGS AND RECOMMENDATIONS

MAXINE HARDEN,

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Defendant.

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By order filed August 3, 2016, plaintiff was ordered to show cause why this action should

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not be dismissed for lack of subject matter jurisdiction. Plaintiff has filed a response to the order

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to show cause.
The complaint names as a defendant plaintiff’s mother. Plaintiff alleges that defendant

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violated his civil rights. In the response to the order to show cause, plaintiff states that defendant

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“Maxine Harden is absolutely not a state actor.” ECF No. 4. It does not appear that defendant

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meets any of the four tests articulated by the Supreme Court for determining whether a private

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party’s conduct constitutes state action. Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002)

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(private individual’s action can amount to state action under (1) public function test, (2) joint

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action test, (3) state compulsion test, or (4) governmental nexus test).

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Because it does not appear plaintiff can allege facts, within the strictures of Federal Rule

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of Civil Procedure 11, that would support a claim that defendant is a state actor and plaintiff sets

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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: August 22, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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