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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN FRANCISCO DIVISION 9 10 ANDRE PATTERSON, Plaintiff, 11 REFERRAL FOR REASSIGNMENT WITH RECOMMENDATION TO DISMISS WITHOUT PREJUDICE v. 12 13 Case Number 11-cv-06137 NC DEANNA CRESPO, 14 Re: Docket No. 3 Defendant. 15 16 17 Plaintiff Andre Patterson moves to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 18 1915. Dkt. No. 3. Patterson has not consented to the jurisdiction of a magistrate judge. As this 19 Court does not have authority to make a dispositive ruling in this case because the parties have 20 not consented to its jurisdiction under 28 U.S.C. § 636(c), the Court orders that this case be 21 REASSIGNED to a District Judge. The Court RECOMMENDS that Patterson’s complaint be 22 dismissed without prejudice in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state 23 a claim upon which relief may be granted. 24 I. STANDARD OF REVIEW 25 Any person seeking to commence a civil suit in district court must pay a filing fee of 26 $350. 28 U.S.C. § 1914(a). A district court has the authority to waive this fee for any person 27 who shows in an affidavit that he or she is unable to pay it. 28 U.S.C. § 1915(a)(1). A district 28 court may dismiss the complaint of an IFP applicant at any time if it determines that the 11-cv-06137 NC REFERRAL FOR REASSIGNMENT W ITH RECOMMENDATION Case N o. 1 complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). 2 Dismissal under the IFP statute “does not prejudice the filing of a paid complaint making the 3 same allegations.” Denton v. Hernandez, 504 U.S. 25, 34 (1992). 4 II. DISCUSSION 5 Patterson has shown in his IFP application that he is unable to pay the filing fee required 6 to file a complaint. See Dkt. No. 3, IFP Application. Patterson’s complaint, however, fails to 7 state a claim upon which relief may be granted. In his complaint, Patterson claims that 8 Defendant Crespo violated his rights under the First and Fifth Amendments of the United States 9 Constitution. Dkt. No. 1, Complaint, at 2. He alleges that after he was threatened by an “unruly” 10 and “violent” co-tenant, he attempted to report the incident to Defendant Crespo, who is his 11 landlord and “an advocate for Catholic charities.” Id. at 1. Crespo allegedly told Patterson to 12 leave her office and “banned” him “from services.” Id. at 2. Patterson claims that Crespo’s 13 actions violated his “right to a fair hearing” under the Fifth Amendment. Id. The rest of the 14 complaint contains excerpts of the text of the First and Fifth Amendments. Id. The First Amendment prohibits Congress from making laws “respecting an establishment 15 16 of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the 17 press; or the right of the people peaceably to assemble, and to petition the Government for a 18 redress of grievances.” U.S. CONST . amend. I. The Due Process Clause of the Fifth Amendment 19 forbids the federal government from depriving persons of “life, liberty, or property, without due 20 process of law.” U.S. CONST . amend. V. The First and Fifth Amendments “apply to and restrict 21 only the Federal Government and not private persons.” Public Utils. Comm’n of Dist. of 22 Columbia v. Pollak, 343 U.S. 451, 461 (1952). Federal government officials may be sued in 23 their capacity as individuals. See Bivens v. Six Unknown Named Agents of Federal Bureau of 24 Narcotics, 403 U.S. 388 (1971). Here, Patterson’s complaint fails to state a claim for relief under the First or Fifth 25 26 Amendments because he fails to allege that Crespo is a person acting on behalf of the federal 27 government. Patterson’s complaint also fails to state a claim for relief under 42 U.S.C. § 1983, 28 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 11-cv-06137 NC REFERRAL FOR REASSIGNMENT W ITH RECOMMENDATION Case N o. 2 1 law when she purportedly violated his rights. See West v. Adkins, 487 U.S. 42, 48-49 (1988). 2 Accordingly, the Court recommends that Patterson’s complaint be dismissed with leave to 3 amend. 4 5 IT IS SO ORDERED. 6 7 DATED: December 12, 2011 ____________________________ NATHANAEL M. COUSINS United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11-cv-06137 NC REFERRAL FOR REASSIGNMENT W ITH RECOMMENDATION Case N o. 3

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