Ilaw v. Littler Mendelson, P.C. et al

Filing 10

ORDER DISMISSING WITH FINAL LEAVE TO AMEND; DENYING MOTION TO PROCEED IN FORMA PAUPERIS. Signed by Judge Jeffrey S. White on 12/3/13. (jjoS, COURT STAFF) (Filed on 12/3/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MIGUEL ILAW,

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For the Northern District of California

United States District Court

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No. C 13-04851 JSW

Plaintiff,

ORDER DISMISSING WITH
FINAL LEAVE TO AMEND AND
DENYING MOTION TO
PROCEED IN FORMA PAUPERIS

v.
LITTLER MENDELSON PC ET AL,

(Docket No. 7)
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Defendant.
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On October 18, 2013, Plaintiff Miguel Ilaw (“Plaintiff”) filed a complaint and a motion

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to proceed in forma pauperis. On October 22, 2013, the Court denied the motion to proceed in

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forma pauperis, dismissed the complaint, and gave Plaintiff leave to amend.

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On November 12, 2013, Plaintiff filed his First Amended Complaint and a renewed

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motion to proceed in forma pauperis. Courts must deny an in forma pauperis application under

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certain circumstances, including when the underlying complaint sought to be filed is frivolous

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or when it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2).

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Plaintiff now asserts that the Court has jurisdiction over this action, because he asserts a

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claim under 42 U.S.C. Section 1983, based on alleged deprivations of his rights to equal

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protection and due process. (See Docket No. 6, First Amended Complaint (“FAC”) at ECF

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pages 9-10, ¶¶ 2, 7-8.) However, in contravention of Federal Rule of Civil Procedure 8(a),

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Plaintiff still has not set forth “a short and plain statement of the claim showing that the pleader

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is entitled to relief.”

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elements: (1) that a right secured by the Constitution or laws of the United States was violated

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and (2) that the alleged violation was committed by a person acting under the color of state law.

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West v. Atkins, 487 U.S. 42, 48 (1988); see also Ketchum v. Alameda County, 811 F.2d 1243,

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1245 (9th Cir. 1987). As best as the Court can discern, Plaintiff alleges that one of the

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defendants, Littler Mendelson, P.C. wrote an article with a state court temporary judge. (See,

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e.g., FAC at ECF page 10, ¶ 7, ECF page 25, lines 3-5.) However, although Plaintiff recites a

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host of facts complaining of attorney and judicial misconduct, and although he sets forth facts

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showing that he is not satisfied with the results of his state court case, he fails to allege facts

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showing how the Defendants violated his due process rights were violated. He also fails to

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For the Northern District of California

In order to state a claim under Section 1983, a plaintiff must allege two essential

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United States District Court

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explain the factual basis for his equal protection claim.

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In addition, Plaintiff has named only private parties as Defendants. Generally, private

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parties do not act under color of state law. Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.

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1991). Therefore, a plaintiff must allege facts that tend to show that the private party’s conduct

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has caused a deprivation of federal rights that may be fairly attributable to the State. Id. at 708

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(holding that “conclusionary allegations of action under color of state law, unsupported by

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facts, will be rejected as insufficient to state a claim”) (quoting Jones v. Community

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Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (internal quotations and brackets

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omitted). Plaintiff’s FAC contains only conclusory allegations that the Defendants in this case

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were acting under color of state law.

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Accordingly, the Court DENIES Plaintiff’s application to proceed in forma pauperis and

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it DISMISSES the FAC. Out of an abundance of caution, the Court shall grant Plaintiff a final

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opportunity to amend his complaint, to cure the deficiencies discussed above. If Plaintiff

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wishes to pursue this action, he must file an amended complaint setting forth a cognizable legal

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claim and some factual basis to support a claim by December 30, 2013. Plaintiff may file a

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renewed application to proceed in forma pauperis with his proposed second amended

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complaint.

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If Plaintiff fails to file a second amended complaint, the Court shall dismiss this case
with prejudice.
The Court again advises Plaintiff that a Handbook for Pro Se Litigants, which contains

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helpful information about proceeding without an attorney, is available through the Court’s

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website or in the Clerk’s office. The Court again advises Plaintiff that he also may wish to seek

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assistance from the Legal Help Center. Plaintiff may call the Legal Help Center at 415-782-

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8982 or sign up on the 15th Floor of the Courthouse, Room 2796, for a free appointment with

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an attorney who may be able to provide basic legal help, but not legal representation.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: December 3, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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MIGUEL ILAW,

Case Number: CV13-04851 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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LITTLER MENDELSON PC ET AL et al,
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For the Northern District of California

United States District Court

Defendant.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on December 3, 2013, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.

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Miguel Ilaw
354 London Street
San Francisco, CA 94112

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Dated: December 3, 2013

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk