(PC) Spearman v. B-Side Bar
Filing
10
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 9/8/2021 RECOMMENDING this action be dismissed for failure to state a claim. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)
Case 2:21-cv-01216-KJM-DMC Document 10 Filed 09/08/21 Page 1 of 3
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
REGINALD EDWARD SPEARMAN,
12
13
14
15
No. 2:21-CV-1216-KJM-DMC-P
Plaintiff,
v.
FINDINGS AND RECOMMENDATIONS
B-SIDE BAR,
Defendant.
16
17
18
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.
19
The Court is required to screen complaints brought by prisoners seeking relief
20
against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
21
§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or
22
malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
23
from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
24
the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
25
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
26
means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d
27
1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
28
complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
1
Case 2:21-cv-01216-KJM-DMC Document 10 Filed 09/08/21 Page 2 of 3
1
rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege
2
with at least some degree of particularity overt acts by specific defendants which support the
3
claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
4
impossible for the Court to conduct the screening required by law when the allegations are vague
5
and conclusory.
6
Plaintiff names as the only defendant the B-Side Bar. See ECF No. 1. According
7
to Plaintiff, an employee of the B-Side Bar falsely posed on Facebook and other social media that
8
Plaintiff is a “scammer.” Id. at 1. Plaintiff alleges damage to his reputation as a result. See id.
Plaintiff’s complaint suffers two critical defects. First, it fails to name an
9
10
individual acting under color of state law. Second, it fails to allege a violation of a constitutional
11
or federal statutory right, instead alleging only a state law tort claim for defamation. To state a
12
claim under § 1983Plaintiff must “plead that (1) the defendants acting under color of state law
13
(2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United
14
States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also Pistor v. Garcia, 791 F. 3d 1104, 1114 (9th
15
Cir. 2015); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); WMX Techs., Inc.
16
v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc); Ortez v. Wash. Cty., Or., 88 F.3d 804, 810
17
(9th Cir. 1996). Here, Plaintiff does neither.
18
Because it does not appear possible that the deficiencies identified herein can be
19
cured by amending the complaint, Plaintiff is not entitled to leave to amend prior to dismissal of
20
the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).
21
///
22
///
23
///
24
///
25
///
26
///
27
///
28
///
2
Case 2:21-cv-01216-KJM-DMC Document 10 Filed 09/08/21 Page 3 of 3
1
2
Based on the foregoing, the undersigned recommends that this action be dismissed
for failure to state a claim.
3
These findings and recommendations are submitted to the United States District
4
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
5
after being served with these findings and recommendations, any party may file written
6
objections with the court. Responses to objections shall be filed within 14 days after service of
7
objections. Failure to file objections within the specified time may waive the right to appeal. See
8
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
9
10
Dated: September 8, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?