Sample v. Congalves

Filing 9

ORDER OF DISMISSAL. Amended Complaint due 2/1/2012. Signed by Judge Hamilton on 1/3/2012. (pjhlc1, COURT STAFF) (Filed on 1/3/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FELITA SAMPLE,
Plaintiff,

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For the Northern District of California

United States District Court

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No. C 11-6127 PJH

v.

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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NELLA CONGALVES,

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Defendant.
_______________________________/

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Plaintiff Felita Sample filed this action on December 5, 2011, asserting claims of

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constitutional violations against defendant Nella Congalves (“Congalves”). Also on

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December 5, 2011, plaintiff filed a request for leave to proceed in forma pauperis (“IFP”).

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Because the court finds that the complaint fails to state a claim, the action is dismissed

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pursuant to 28 U.S.C. § 1915(e).

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DISCUSSION
A.

Legal Standard
The court may authorize a plaintiff to file an action in federal court without

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prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is

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unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a). When a complaint

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is filed IFP, it must be dismissed prior to service of process if it is frivolous or malicious,

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fails to state a claim, or seeks monetary damages from defendants who are immune from

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suit. 28 U.S.C. § 1915( e)(2); see also Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th

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Cir. 1984).

A complaint is frivolous for purposes of § 1915(e) if it lacks any arguable basis in fact

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or in law. Neitzke v. Williams, 490 U.S. 319, 328- 30 (1989). A complaint lacks an

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arguable basis in law only if controlling authority requires a finding that the facts alleged fail

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to establish an arguable legal claim. Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990).

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When a complaint is dismissed under § 1915(e), the plaintiff should be given leave

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to amend the complaint with directions as to curing its deficiencies, unless it is clear from

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the face of the complaint that the deficiencies could not be cured by amendment. Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (dismissal of complaint as frivolous).

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B.

The Complaint
In the complaint, plaintiff alleges that defendant Congalvez, who is the Senior

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For the Northern District of California

United States District Court

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Program Director for Catholic Charities, “banned” her “without a fair hearing,” after plaintiff

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made a complaint about an unruly tenant. Plaintiff asserts that this action violated her First

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Amendment right to free speech, and her Fifth Amendment right to a fair hearing.

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Attached to the complaint is a copy of a letter signed by Nella Congalves, on

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letterhead bearing the heading “Treasure Island Supportive Housing, Catholic Charities

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CYO.” The letter states that based on “recent incidents,” and on “violent disruptive

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behavior” displayed by plaintiff in the offices of Treasure Island Supportive Housing

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(“TISH”), plaintiff’s right to receive services from TISH was being suspended through

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January 3, 2012.

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C.

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Analysis
The court interprets the complaint as alleging claims under 42 U.S.C. § 1983. The

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court finds that the complaint must be dismissed for failure to state a claim because it does

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not allege facts showing that defendant is a state actor that can be sued under § 1983.

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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). It is not itself a

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source of substantive rights, but merely provides a method for vindicating federal rights

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elsewhere conferred. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
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To state a claim under § 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)

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

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

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1245 (9th Cir. 1987).

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The § 1983 claims against Congalves must be dismissed because plaintiff has not

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alleged facts showing that Congalves is a state actor. A person acts under color of state

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law if he “exercise[s] power possessed by virtue of state law and made possible only

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because the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49
(citation and internal quotation marks omitted).

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For the Northern District of California

United States District Court

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Private individuals generally do not act under color of state law. Gomez v. Toledo,

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446 U.S. 635, 640 (1980). Purely private conduct, no matter how wrongful, is not covered

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under § 1983. Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974). Action

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taken by private individuals or organizations may be under color of state law, but only if

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“there is such a close nexus between the State and the challenged action that seemingly

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private behavior may be fairly treated as that of the State itself.” Brentwood Academy v.

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Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96 (2001). Here, plaintiff has

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alleged no facts showing any close nexus between Congalves (or Catholic Charities) and

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any government entity.

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In addition, while it is not entirely clear which provision of the Fifth Amendment

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plaintiff intends to assert in this action, a claim of deprivation of due process under the Fifth

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Amendment can be asserted only against the federal government, not against any other

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governmental entity. See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)

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(Fifth Amendment applies “only to actions of the federal government – not to those of state

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or local governments”).

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It is (generally) the Due Process Clause of the Fourteenth Amendment that protects

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individuals against governmental deprivations of “life, liberty or property,” as those words

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have been interpreted and given meaning over the life of our republic, without due process
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of law. See Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972); Mullins v. Oregon, 57

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F.3d 789, 795 (9th Cir. 1995). Thus, the Fifth Amendment claim must be dismissed.

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CONCLUSION

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In accordance with the foregoing, the complaint is DISMISSED pursuant to 28

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U.S.C. § 1915 for failure to state a claim. The dismissal is WITH LEAVE TO AMEND, to

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plead facts showing that defendant Congalves is a state actor, and also to assert the due

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process claim under the Fourteenth Amendment, rather than under the Fifth Amendment.

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The amended complaint shall be filed no later than February 1, 2012.

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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: January 3, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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