Sullivan v. Philip Morris USA, Inc. et al

Filing 3

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended Complaint due by 4/1/2014. Signed by Judge Richard Seeborg on 2/27/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 2/27/2014)

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*E-Filed 2/27/14*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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MANSE SULLIVAN,
for Mrs. Walter Mae Smith,

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No. C 13-5173 RS (PR)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Plaintiff,

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v.

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PHILIP MORRIS USA, INC, and
15 ALTIRA GROUP, INC.,
Defendants.

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/

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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by plaintiff, a

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person civilly committed as a sexually violent predator under California law. The Court

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DISMISSES the complaint with leave to file an amended complaint on or before April 1,

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2014. Plaintiff’s application to proceed in forma pauperis (Docket No. 2) is GRANTED.
DISCUSSION

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A.

Standard of Review
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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No. C 13-5173 RS (PR)
ORDER DISMISSING COMPLAINT

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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that a right secured by the Constitution or laws of the United States was violated, and

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that the alleged violation was committed by a person acting under the color of state law. See

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

United States District Court
For the Northern District of California

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B.

(1)
(2)

Legal Claims

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Plaintiff brings this wrongful death action under § 1983 against Philip Morris USA,

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Inc. and Altira Group, Inc., alleging that these corporations caused the death of his mother,

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Mrs. Walter Mae Smith. The complaint will be dismissed for the following reasons. First,

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the defendants are private, not public, actors. Private actors are not liable under § 1983. See

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Gomez v. Toledo, 446 U.S. 635, 640 (1980).1 Second, this Court is likely not the correct

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forum for plaintiff’s claims, all of which are in truth state tort claims.2 In his amended

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complaint, plaintiff must allege facts that show that this Court has jurisdiction over such

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claims. Unlike state courts, “[f]ederal courts are courts of limited jurisdiction. They possess

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only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.

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of America, 511 U.S. 375, 377 (1994). The two main classes of cases over which the federal

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courts have jurisdiction are those that present a federal question, see 28 U.S.C. § 1331, and

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those in which the parties have diverse citizenship and involve an amount in controversy

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exceeding $75,000, see 28 U.S.C. § 1332. Neither basis for jurisdiction is shown in the

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Because defendants are not state actors, his claims under the Eighth Amendment and
the Equal Protection Clause are DISMISSED without leave to amend.
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Plaintiff alleges that defendants are liable for age discrimination under Title VII of the
Civil Rights Act. This claim is DISMISSED without leave to amend. The statute to which he
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refers (29 U.S.C. § 621 et seq.) applies only to instances of employment discrimination.
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No. C 13-5173 RS (PR)
ORDER DISMISSING COMPLAINT

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complaint. Plaintiff may wish to dismiss his federal complaint and file an action in state

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court, where jurisdiction is not in question.

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Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an
amended complaint on or before April 1, 2014. The first amended complaint must include

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the caption and civil case number used in this order (13-5173 RS (PR)) and the words FIRST

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AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the previous complaints, plaintiff must include in his first amended complaint all the

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claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from

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United States District Court
For the Northern District of California

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the prior complaint by reference. Failure to file an amended complaint in accordance with

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this order will result in dismissal of this action without further notice to plaintiff.

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for

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an extension of time to do so. Failure to comply may result in the dismissal of this action

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: February 27, 2014
RICHARD SEEBORG
United States District Judge

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No. C 13-5173 RS (PR)
ORDER DISMISSING COMPLAINT

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