(PC) Spearman v. Sam Berri Towing et al

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 9/07/21 RECOMMENDING that this action be dismissed for failure to state a claim. Referred to Judge William B. Shubb. Objections due within 14 days.(Plummer, M)

Case 2:21-cv-01214-WBS-DMC Document 9 Filed 09/08/21 Page 1 of 3
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REGINALD EDWARD SPEARMAN,

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No. 2:21-CV-1214-WBS-DMC-P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

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SAM BERRI TOWING, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42
U.S.C. § 1983. Pending before the Court is Plaintiff’s complaint, ECF No. 1.

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
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Case 2:21-cv-01214-WBS-DMC Document 9 Filed 09/08/21 Page 2 of 3
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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the Court to conduct the screening required by law when the allegations are vague

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and conclusory.

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Plaintiff names Sam Berri Towing and a number of individuals as defendants.

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None are government employees or agencies. Plaintiff alleges that Defendants stole his 1993

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Nissan and then tried to sell it online. Plaintiff also claims Defendants stole his grandfather’s file,

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account information, and real estate portfolio.
Plaintiff’s complaint suffers two critical defects. First, it fails to name an

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individual acting under color of state law. Second, it fails to allege a violation of a constitutional

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or federal statutory right, instead alleging only a state law tort claim for defamation. To state a

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claim under § 1983Plaintiff must “plead that (1) the defendants acting under color of state law

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(2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United

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States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also Pistor v. Garcia, 791 F. 3d 1104, 1114 (9th

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Cir. 2015); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); WMX Techs., Inc.

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v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc); Ortez v. Wash. Cty., Or., 88 F.3d 804, 810

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(9th Cir. 1996). Here, Plaintiff does neither.

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Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, Plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Case 2:21-cv-01214-WBS-DMC Document 9 Filed 09/08/21 Page 3 of 3
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Based on the foregoing, the undersigned recommends that this action be dismissed
for failure to state a claim.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal. See

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

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Dated: September 7, 2021
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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