Bibbs v. Walkenhorst et al

Filing 6

ORDER OF DISMISSAL AND DENYING PLAINTIFFS 4 MOTION TO SERVE SUMMONS. Signed by Judge Claudia Wilken on 12/6/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 12/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No.: C 12-2197 CW (PR)

MARTIN J. BIBBS,

ORDER OF DISMISSAL AND DENYING
PLAINTIFF’S MOTION TO SERVE
SUMMONS

v.
JOHN WALKENHORST, et al.,

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(Docket no. 4)

Defendants.

United States District Court
Northern District of California

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Plaintiff, a state prisoner incarcerated at Pelican Bay

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State Prison (PBSP), has filed a pro se civil rights action

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pursuant to 42 U.S.C. § 1983.

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He has paid the filing fee.

A federal court must conduct a preliminary screening in any

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case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity.

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§ 1915A(a).

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cognizable claims and dismiss any claims that are frivolous,

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malicious, fail to state a claim upon which relief may be granted

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or seek monetary relief from a defendant who is immune from such

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relief.

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liberally construed.

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F.2d 696, 699 (9th Cir. 1988).

28 U.S.C.

In its review, the court must identify any

Id. § 1915A(b)(1), (2).

Pro se pleadings must be

Balistreri v. Pacifica Police Dep’t, 901

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To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the

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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

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the color of state law.

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

Plaintiff alleges that he has been refused the right to

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purchase merchandise by a private vendor, Walkenhorst’s, because

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he is incarcerated in the Secured Housing Unit (SHU) at PBSP.

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Plaintiff maintains that PBSP has no policy prohibiting him from

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purchasing merchandise from Walkenhorst’s, and that

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Walkenhorst’s, on its own accord, has chosen not to do business

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with him solely because of his SHU status.

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claims such discrimination by a private vendor is unlawful, and

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United States District Court
Northern District of California

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seeks injunctive relief and damages.

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Compl. at 3-4.

He

Plaintiff’s claim cannot proceed under 42 U.S.C. § 1983,

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because private individuals and entities do not act under color

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of state law, an essential element of a § 1983 action.

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v. Toledo, 446 U.S. 635, 640 (1980).

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matter how wrongful, is not covered under § 1983.

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Maryland Nat’l Ins. Co., 505 F.2d 547, 559 (9th Cir. 1974).

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There is no constitutional right to be free from the infliction

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of deprivations by private individuals.

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Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).

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See Gomez

Purely private conduct, no
See Ouzts v.

See Van Ort v. Estate of

Because the Defendants named in the complaint are private

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actors, Plaintiff’s allegations against them do not state a

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cognizable claim for relief under 42 U.S.C. § 1983.

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granting Plaintiff leave to amend the complaint to state a claim

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based on such allegations would be futile.

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Further,

Accordingly, this action is DISMISSED with prejudice and
Plaintiff’s motion to serve Defendants is DENIED.
The Clerk of the Court shall enter judgment and close the

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file.

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//

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This Order terminates Docket no. 4.

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IT IS SO ORDERED.

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Dated: 12/6/2012

____________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
Northern District of California

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