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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 FELITA SAMPLE, Plaintiff, 11 For the Northern District of California United States District Court 10 No. C 11-6127 PJH v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 12 NELLA CONGALVES, 13 Defendant. _______________________________/ 14 15 Plaintiff Felita Sample filed this action on December 5, 2011, asserting claims of 16 constitutional violations against defendant Nella Congalves (“Congalves”). Also on 17 December 5, 2011, plaintiff filed a request for leave to proceed in forma pauperis (“IFP”). 18 Because the court finds that the complaint fails to state a claim, the action is dismissed 19 pursuant to 28 U.S.C. § 1915(e). 20 21 22 DISCUSSION A. Legal Standard The court may authorize a plaintiff to file an action in federal court without 23 prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is 24 unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a). When a complaint 25 is filed IFP, it must be dismissed prior to service of process if it is frivolous or malicious, 26 fails to state a claim, or seeks monetary damages from defendants who are immune from 27 suit. 28 U.S.C. § 1915( e)(2); see also Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th 28 Cir. 1984). A complaint is frivolous for purposes of § 1915(e) if it lacks any arguable basis in fact 1 2 or in law. Neitzke v. Williams, 490 U.S. 319, 328- 30 (1989). A complaint lacks an 3 arguable basis in law only if controlling authority requires a finding that the facts alleged fail 4 to establish an arguable legal claim. Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990). 5 When a complaint is dismissed under § 1915(e), the plaintiff should be given leave 6 to amend the complaint with directions as to curing its deficiencies, unless it is clear from 7 the face of the complaint that the deficiencies could not be cured by amendment. Cato v. 8 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (dismissal of complaint as frivolous). 9 B. The Complaint In the complaint, plaintiff alleges that defendant Congalvez, who is the Senior 11 For the Northern District of California United States District Court 10 Program Director for Catholic Charities, “banned” her “without a fair hearing,” after plaintiff 12 made a complaint about an unruly tenant. Plaintiff asserts that this action violated her First 13 Amendment right to free speech, and her Fifth Amendment right to a fair hearing. 14 Attached to the complaint is a copy of a letter signed by Nella Congalves, on 15 letterhead bearing the heading “Treasure Island Supportive Housing, Catholic Charities 16 CYO.” The letter states that based on “recent incidents,” and on “violent disruptive 17 behavior” displayed by plaintiff in the offices of Treasure Island Supportive Housing 18 (“TISH”), plaintiff’s right to receive services from TISH was being suspended through 19 January 3, 2012. 20 C. 21 Analysis The court interprets the complaint as alleging claims under 42 U.S.C. § 1983. The 22 court finds that the complaint must be dismissed for failure to state a claim because it does 23 not allege facts showing that defendant is a state actor that can be sued under § 1983. 24 Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, 25 or immunities secured by the Constitution and laws’ of the United States.” Wilder v. 26 Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). It is not itself a 27 source of substantive rights, but merely provides a method for vindicating federal rights 28 elsewhere conferred. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 2 1 To state a claim under § 1983, a plaintiff must allege two essential elements: 2 (1) that a right secured by the Constitution or laws of the United States was violated and (2) 3 that the alleged violation was committed by a person acting under the color of state law. 4 See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda County, 811 F.2d 1243, 5 1245 (9th Cir. 1987). 6 The § 1983 claims against Congalves must be dismissed because plaintiff has not 7 alleged facts showing that Congalves is a state actor. A person acts under color of state 8 law if he “exercise[s] power possessed by virtue of state law and made possible only 9 because the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49 (citation and internal quotation marks omitted). 11 For the Northern District of California United States District Court 10 Private individuals generally do not act under color of state law. Gomez v. Toledo, 12 446 U.S. 635, 640 (1980). Purely private conduct, no matter how wrongful, is not covered 13 under § 1983. Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974). Action 14 taken by private individuals or organizations may be under color of state law, but only if 15 “there is such a close nexus between the State and the challenged action that seemingly 16 private behavior may be fairly treated as that of the State itself.” Brentwood Academy v. 17 Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96 (2001). Here, plaintiff has 18 alleged no facts showing any close nexus between Congalves (or Catholic Charities) and 19 any government entity. 20 In addition, while it is not entirely clear which provision of the Fifth Amendment 21 plaintiff intends to assert in this action, a claim of deprivation of due process under the Fifth 22 Amendment can be asserted only against the federal government, not against any other 23 governmental entity. See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) 24 (Fifth Amendment applies “only to actions of the federal government – not to those of state 25 or local governments”). 26 It is (generally) the Due Process Clause of the Fourteenth Amendment that protects 27 individuals against governmental deprivations of “life, liberty or property,” as those words 28 have been interpreted and given meaning over the life of our republic, without due process 3 1 of law. See Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972); Mullins v. Oregon, 57 2 F.3d 789, 795 (9th Cir. 1995). Thus, the Fifth Amendment claim must be dismissed. 3 CONCLUSION 4 In accordance with the foregoing, the complaint is DISMISSED pursuant to 28 5 U.S.C. § 1915 for failure to state a claim. The dismissal is WITH LEAVE TO AMEND, to 6 plead facts showing that defendant Congalves is a state actor, and also to assert the due 7 process claim under the Fourteenth Amendment, rather than under the Fifth Amendment. 8 The amended complaint shall be filed no later than February 1, 2012. 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 Dated: January 3, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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