Waiton v. Post et al

Filing 7

ORDER OF DISMISSAL. Signed by Judge Jon S. Tigar on August 26, 2013. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 8/27/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS DAVID WAITON,

Case No. 13-cv-02439-JST (PR)

Plaintiff,
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v.

ORDER OF DISMISSAL

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KERRI POST, et al.,
Defendants.

United States District Court
Northern District of California

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Plaintiff, an inmate at the Main Adult Detention Facility in Santa Rosa, California, filed

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this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in

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forma pauperis in a separate order. His complaint is now before the Court for review under 28

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U.S.C. § 1915A.
DISCUSSION

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A.

Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of

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the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief

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may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id.

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§ 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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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." "Specific facts are not necessary; the

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statement need only " 'give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.' " Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although

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in order to state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's

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obligation to provide the grounds of his 'entitle[ment] to relief' requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level." Bell

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Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint

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must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that
the alleged violation was committed by a person acting under the color of state law. West v.

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United States District Court
Northern District of California

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Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims

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Plaintiff alleges that defendant California Highway Patrol ("CHP") Officer Maxine Guyer

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purposefully ran over plaintiff with her car. Plaintiff was a pedestrian. Plaintiff does not provide

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the location or date of the incident. Plaintiff further alleges that defendant CHP Officer Brian

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Wood prepared a fraudulent report about the incident, and that CHP Supervisor Kerri Post failed

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to adequately investigate the incident. Plaintiff also alleges that defendant County of Sonoma

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failed to adequately provide a safe environment for its citizens insofar as the shoulder of the road

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he was walking on during the incident was "inadequate."

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Although plaintiff’s allegations are serious, they fail to state a claim upon which relief may

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be granted under § 1983. Specifically, plaintiff has not alleged how these alleged acts violated his

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federal constitutional or statutory rights. Plaintiff may be able to bring a claim for negligence or

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intentional torts against the named defendants in the state courts.

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Plaintiff also names as a defendant Darcy Drew ("Drew"), whom plaintiff identifies as an

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insurance agent of the American Automobile Association. Plaintiff's claim against Drew cannot

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proceed under 42 U.S.C. § 1983, because private individuals and entities do not act under color of

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state law, an essential element of a § 1983 action. See Gomez v. Toledo, 446 U.S. 635, 640

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(1980). Purely private conduct, no matter how wrongful, is not covered under § 1983. See Ouzts
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v. Maryland Nat'l Ins. Co., 505 F.2d 547, 559 (9th Cir. 1974).
CONCLUSION

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For the foregoing reasons, the complaint is DISMISSED for failure to state a claim under

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§ 1983.
The Clerk shall enter judgment in accordance with this order, terminate all pending
motions as moot, and close the file.
IT IS SO ORDERED.
Dated: August 26, 2013

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United States District Court
Northern District of California

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______________________________________
JON S. TIGAR
United States District Judge

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