Keys v. McDaugherty

Filing 8

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 1/22/2018. The deputy clerk hereby certifies that on 1/22/2018 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (lsS, COURT STAFF) (Filed on 1/22/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KIMBERLY KEYS, WF5311,
Plaintiff,

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United States District Court
Northern District of California

ORDER OF DISMISSAL

v.

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Case No. 17-cv-06467-CRB (PR)

LESTER McDAUGHERTY,
Defendant(s).

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Plaintiff Kimberly Keys, a prisoner at Central California Women’s Facility in Chowchilla,

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has filed a pro se complaint for damages under 42 U.S.C. § 1983 against Lester McDaugherty, a

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former prisoner she alleges stole monies from her. Plaintiff also seeks to proceed in forma

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pauperis (IFP) under 28 U.S.C. § 1915, which based solely on her affidavit of poverty, the court

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grants in an accompanying order.
DISCUSSION

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A.

Standard of Review
Federal courts “shall dismiss” an action brought IFP under § 1915 at any time if the court

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determines that the action “is frivolous or malicious,” “fails to state a claim on which relief may be

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granted,” or “seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.

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§ 1915(e)(2). 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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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

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right secured by the Constitution or laws of the United States was violated, and (2) that the alleged

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violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.

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42, 48 (1988).

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B.

Legal Claims
C

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Plaintif action ag
ff’s
gainst defend
dant, a priva individua must be di
ate
al,
ismissed for failure to
r

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nder § 1983 because a pr
rivate indivi
idual does no act under color of stat law, an
ot
te
state a claim un

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ess
sential eleme of a § 1983 action. See Gomez v Toledo, 4 U.S. 635 640 (1980) Purely
ent
S
v.
446
5,
).

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private conduct, no matter how wrongf is not co
ful,
overed under § 1983. Se Van Ort v Estate of
r
ee
v.

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Sta
anewich, 92 F.3d 831, 83 (9th Cir. 1996). But p
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plaintiff may well be able to seek re
y
elief in state

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cou for violat
urt
tion of Califo
fornia law.
CONCLU
USION

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For the foregoing re
easons, plain
ntiff’s action is DISMISSED under § 1915(e)(2) for failure
n
)
to state a claim on which re
s
m
elief may be granted. Th dismissal is without p
e
he
l
prejudice to seeking

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United States District Court
Northern District of California

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reli in state court, if appropriate.
ief

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IT IS SO ORDER
S
RED.
Da
ated: January 22, 2018
y
___
__________
___________
__________
________
CH
HARLES R. BREYER
Un
nited States D
District Judg
ge

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