Beaton v. Amazon.Com, Inc.

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/30/19 RECOMMENDING that 1 the complaint be dismissed without leave to amend. The court further recommends that the Motions 7 and 11 be DENIED as MOOT. These Findings and Recommendations are submitted to U.S. District Judge Kimberly J. Mueller; Objections to these F&Rs due within twenty-one (21) days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL NIVARD BEATON,

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Plaintiff,

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v.

No. 2:19-cv-02394 KJM AC PS

FINDINGS AND RECOMNENDATIONS

AMAZON.COM, INC.,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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has requested leave to proceed in forma pauperis (“IFP’) pursuant to 28 U.S.C. § 1915. This

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

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status was granted by Magistrate Judge Sheila K. Oberto (ECF No. 3), before she recused herself

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(ECF No. 4). The case was reassigned to Magistrate Judge Erica P. Grosjean, who granted

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plaintiff’s request to transfer the case to the Sacramento Division of the Eastern District of

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California. ECF No. 9. The case is now before the undersigned for screening. Plaintiff also filed

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two motions, a “motion requesting to be filed 22 pages left behind from e-filing re 1 Complaint”

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(ECF No. 7) and a “motion for service by US Marshal” (ECF No. 11).

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I.

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Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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“frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]

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monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

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A claim “is [legally] frivolous where 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). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

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theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

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640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

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stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

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constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

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Franklin, 745 F.2d at 1227-28 (citations omitted).

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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“Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

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of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

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680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

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to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain

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something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

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R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

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standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

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Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the

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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) (citations omitted).

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II.

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Complaint
Plaintiff sues defendant Amazon.com (“Amazon”) for violations of 42 U.S.C. § 1983.

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ECF No. 1 at 1. Plaintiff alleges that Amazon violated his constitutional rights under the 13th,

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14th, and 15th amendments when it failed to pay him royalties for his book. ECF No. 1 at 3.

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Plaintiff states that Amazon failed to provide him and other authors access to their money during

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incarceration, and his incarceration makes it impossible for him to contact Amazon. Id. Plaintiff

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makes a second claim for violations of the 13th, 14th, 15th and 19th amendments. Id. at 4. This

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claim also alleges that Amazon does not provide payment to authors when they are incarcerated.

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Id. Plaintiff states that he first published his book “Humanity Was a Colony of Extraterrestrials;

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How the Universe Begins” in March of 2010, and that the sale price of the book should result in

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$13.00 for Amazon and $9.00 for himself. Id. at 5. Plaintiff requests that defendant pay $2,100

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to the U.S. Courthouse to pay for all of the cases he has filed. Id. at 6.

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III.

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Failure to State a Claim
Section 1983 “creates a cause of action against a person who, acting under color of state

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law, deprives another of rights guaranteed under the Constitution.” Henderson v. City of Simi

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Valley, 305 F.3d 1052, 1056 (9th Cir. 2002). “In order to allege a claim upon which relief may

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be granted under § 1983, a plaintiff must show that he or she has been deprived of a ‘right

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secured by the Constitution and . . . law of the United States’ and that the deprivation was ‘under

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color’ of state law.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (citing Flagg Bros.,

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Inc. v. Brooks, 436 U.S. 149, 155 (1978) (quoting 42 U.S.C. § 1983)). “Action under color of

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state law normally consists of action taken by a public agency or officer.” Taylor v. First Wyo.

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Bank, N.A., 707 F.2d 388, 389 (9th Cir. 1983). There is no cause of action under § 1983 for

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claims against private companies where no government involvement is alleged. See Apao v.
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Bank of New York, 324 F.3d 1091, 1093 (9th Cir.), cert. denied, 540 U.S. 948 (2003) (§ 1983

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“shields citizens from unlawful government actions, but does not affect conduct by private

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entities.”).

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Here, the only defendant is not a state actor and is not alleged to have acted under color of

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state law. A private entity’s conduct constitutes action under color of state law only if it is “fairly

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attributable” to the state. West v. Atkins, 487 U.S. 42, 49-50 (1988). “[S]tate action may be

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found if, though only if, there is such a close nexus between the state and the challenged action

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that seemingly private behavior may be fairly treated as that of the state itself.” Brentwood

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Academy v. Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288, 295 (2001). Plaintiff alleges

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only that Amazon, a private company, has not paid him owed royalties on his book because he is

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in prison. No facts stated in the complaint suggest that the conduct of the private defendant

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named here could even arguably be attributed to the state under the applicable standard. Because

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plaintiff brings only constitutional claims under §1983, plaintiff cannot state a claim upon which

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relief may be granted.

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Leave to amend is not appropriate because the facts presented are clear, and these facts

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make clear that plaintiff cannot state a claim. Because amendment would be futile, it is

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recommended that this case be dismissed without leave to amend. See Noll v. Carlson, 809 F.2d

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1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in Lopez v. Smith,

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203 F.3d 1122 (9th Cir.2000)) (en banc).

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IV.

Conclusion
Because it is clear that plaintiff cannot state a claim upon which relief can be granted, the

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court recommends the complaint (ECF No. 1) be DISMISSED without leave to amend. The court

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further recommends the motions at ECF Nos. 7 and 11 be DENIED as MOOT.

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These findings and recommendations are submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. Such document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.

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

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DATED: December 30, 2019

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