Hunter v. Fetch et al

Filing 24

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 09/27/18 ORDERING that the Clerk of the Court shall appoint a District Judge to this action. Also, RECOMMENDING that this action be dismissed. Assigned and referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID HUNTER,

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No. 2: 18-cv-1751 KJN P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CARLYN FETCH, et al.,
Defendants.

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Plaintiff is a prisoner, proceeding without counsel, with a civil rights action pursuant to 42

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U.S.C. § 1983. On August 30, 2018, the undersigned dismissed the complaint with leave to

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amend. (ECF No. 16.) Pending before the court is plaintiff’s amended complaint. (ECF No. 21.)

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For the reasons stated herein, the undersigned recommends that this action be dismissed.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520–21 (1972), a complaint, or portion thereof, must be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562–563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds' of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are
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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the

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plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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requires a complaint to include “a short and plain statement of the claim showing that the pleader

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is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds

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upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Plaintiff’s amended complaint is difficult to understand. Named as defendants are

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landlord Carolyn Fetch, Sheriff and Probation. Plaintiff alleges that on April 26, 2018, he told

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defendant Fetch that he wanted 30-days notice to move to another room and board. Plaintiff

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alleges that defendant Fetch refused to give him that notice. Plaintiff alleges that defendant Fetch

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made a false complaint to defendant Sheriff. Plaintiff alleges that he was falsely arrested on April

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19, 2018. Plaintiff alleges that he was put under an illegal ten days security risk.

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In order to state a claim under § 1983, a plaintiff must allege that: (1) defendant was

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acting under color of state law at the time the complained of act was committed; and

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(2) 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).

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Plaintiff has not stated a potentially colorable claim against defendant Fetch pursuant to

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28 U.S.C. § 1983 because she is a private party and, thus, did not act under color of state law. To

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the extent plaintiff claims defendant Fetch violated a federal statute, plaintiff does not identify a

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federal statute. Plaintiff also does not plead any facts suggesting a violation of a federal statute

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relating to his alleged eviction. Accordingly, the undersigned recommends that these claims be

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dismissed.
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Plaintiff is apparently claiming that defendant Sheriff wrongly arrested him on April 19,

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2018. However, plaintiff’s amended complaint does not contain any facts in support of a false

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arrest claim against defendant Sheriff. The undersigned recommends that plaintiff’s false arrest

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claim be dismissed on the grounds that it is vague and conclusory. See Kimes v. Stone, 84 F.3d

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1121, 1129 (9th Cir. 1996) (complaint must give defendant fair notice of what the plaintiff’s

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claim is and the ground upon which it rests).

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While plaintiff claims that he was put on an illegal ten days security risk, he does not

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allege any other facts in support of this claim. Accordingly, the undersigned recommends that

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this claim be dismissed on the grounds that it is vague and conclusory. See Kimes v. Stone, 84

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F.3d at 1129.
Plaintiff also alleges that defendant Sheriff violated his constitutional rights by, “using

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plaintiff’s food of retaliation punishment of plaintiff holding the food port hostage and throwing

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fecal matter on the tier to make shure plaintiff gets feed to reinstatement in amended

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complaint…” (ECF No. 21 at 3.) These allegations are indecipherable. For this reason, this

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claim is dismissed. See Kimes v. Stone, 84 F.3d at 1129.

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It is clear that another amendment cannot cure the deficiencies discussed above.

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Therefore, it is recommended that the dismissal be without further leave to amend. See Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily would permit a pro se

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plaintiff to amend, leave to amend should not be granted where it appears amendment would be

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futile).

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a
district judge to this action; and

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IT IS HEREBY RECOMMENDED that this action be dismissed.

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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 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.” Plaintiff is advised that
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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 27, 2018

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Hunt1971.fr

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