Patterson v. Crespo

Filing 4

REFERRAL FOR REASSIGNMENT WITH RECOMMENDATION TO DISMISS WITHOUT PREJUDICE. Signed by Judge Nathanael M. Cousins on 12/12/11. (nclc1, COURT STAFF) (Filed on 12/12/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ANDRE PATTERSON,
Plaintiff,

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REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO
DISMISS WITHOUT PREJUDICE

v.

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Case Number 11-cv-06137 NC

DEANNA CRESPO,

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Re: Docket No. 3
Defendant.

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Plaintiff Andre Patterson moves to proceed in forma pauperis (“IFP”) under 28 U.S.C. §

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1915. Dkt. No. 3. Patterson has not consented to the jurisdiction of a magistrate judge. As this

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Court does not have authority to make a dispositive ruling in this case because the parties have

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not consented to its jurisdiction under 28 U.S.C. § 636(c), the Court orders that this case be

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REASSIGNED to a District Judge. The Court RECOMMENDS that Patterson’s complaint be

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dismissed without prejudice in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state

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a claim upon which relief may be granted.

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I. STANDARD OF REVIEW

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Any person seeking to commence a civil suit in district court must pay a filing fee of

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$350. 28 U.S.C. § 1914(a). A district court has the authority to waive this fee for any person

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who shows in an affidavit that he or she is unable to pay it. 28 U.S.C. § 1915(a)(1). A district

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court may dismiss the complaint of an IFP applicant at any time if it determines that the
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REFERRAL FOR REASSIGNMENT
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complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

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Dismissal under the IFP statute “does not prejudice the filing of a paid complaint making the

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same allegations.” Denton v. Hernandez, 504 U.S. 25, 34 (1992).

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II. DISCUSSION

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Patterson has shown in his IFP application that he is unable to pay the filing fee required

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to file a complaint. See Dkt. No. 3, IFP Application. Patterson’s complaint, however, fails to

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state a claim upon which relief may be granted. In his complaint, Patterson claims that

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Defendant Crespo violated his rights under the First and Fifth Amendments of the United States

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Constitution. Dkt. No. 1, Complaint, at 2. He alleges that after he was threatened by an “unruly”

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and “violent” co-tenant, he attempted to report the incident to Defendant Crespo, who is his

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landlord and “an advocate for Catholic charities.” Id. at 1. Crespo allegedly told Patterson to

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leave her office and “banned” him “from services.” Id. at 2. Patterson claims that Crespo’s

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actions violated his “right to a fair hearing” under the Fifth Amendment. Id. The rest of the

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complaint contains excerpts of the text of the First and Fifth Amendments. Id.
The First Amendment prohibits Congress from making laws “respecting an establishment

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of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

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press; or the right of the people peaceably to assemble, and to petition the Government for a

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redress of grievances.” U.S. CONST . amend. I. The Due Process Clause of the Fifth Amendment

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forbids the federal government from depriving persons of “life, liberty, or property, without due

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process of law.” U.S. CONST . amend. V. The First and Fifth Amendments “apply to and restrict

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only the Federal Government and not private persons.” Public Utils. Comm’n of Dist. of

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Columbia v. Pollak, 343 U.S. 451, 461 (1952). Federal government officials may be sued in

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their capacity as individuals. See Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388 (1971).
Here, Patterson’s complaint fails to state a claim for relief under the First or Fifth

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Amendments because he fails to allege that Crespo is a person acting on behalf of the federal

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government. Patterson’s complaint also fails to state a claim for relief under 42 U.S.C. § 1983,

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which provides a cause of action for constitutional violations committed by persons acting under
the color of state law, as Patterson does not allege that Crespo acted under the authority of state
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law when she purportedly violated his rights. See West v. Adkins, 487 U.S. 42, 48-49 (1988).

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Accordingly, the Court recommends that Patterson’s complaint be dismissed with leave to

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amend.

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IT IS SO ORDERED.

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DATED: December 12, 2011
____________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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