Hurt v. The United Klans

Filing 10

DISMISSAL ORDER. Signed by Judge Saundra Browm Armstrong on 5/28/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 5/28/2014)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 TYRONE HURT, Plaintiff, 8 vs. 9 Case No: C 12-4097 SBA DISMISSAL ORDER Docket 3 10 THE UNITED KLANS, Defendant. 11 12 13 Tyrone Hurt (“Plaintiff”), proceeding pro se, brings the instant civil rights action 14 against “The United Klans.” See Compl., Dkt. 1. Plaintiff has also filed an application to 15 proceed in forma pauperis (“IFP”). As set forth below, the Court dismisses this action 16 pursuant to 28 U.S.C. § 1915(e)(2), and denies Plaintiff’s IFP application as moot. 17 I. 18 LEGAL STANDARD Under § 1915(e)(2), federal courts are authorized to review claims filed IFP prior to 19 service and to dismiss the case at any time if the court determines that: (1) the allegation of 20 poverty is untrue; (2) the action is frivolous or malicious; (3) the action fails to state a 21 claim; or (4) the action seeks monetary relief from a defendant who is immune from such 22 relief. A pleading filed by a pro se plaintiff must be liberally construed. Balistreri v. 23 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 24 To determine whether an IFP complaint passes muster under § 1915, the Court 25 applies the same standard applicable to motions to dismiss under Rule 12(b)(6) of the 26 Federal Rules of Civil Procedure. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 27 1998). A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the 28 plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support 1 a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “To 2 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 3 true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 4 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim 5 has facial plausibility when a plaintiff “pleads factual content that allows the court to draw 6 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 7 U.S. at 678. 8 II. 9 DISCUSSION In the instant case, Plaintiff has failed to allege facts stating a claim for relief that is 10 plausible on its face. The allegations in the complaint are vague and largely 11 incomprehensible. Although not entirely clear, it appears that Plaintiff seeks to state a civil 12 rights claim under the Eighth Amendment against “The United Klans” predicated on the 13 bombing of the 16th Street Baptist Church in Birmingham, Alabama in 1963. As relief, 14 Plaintiff seeks, among other things, an order permanently exiling the Klu Klux Klan from 15 the United States. 16 The Court construes Plaintiff’s complaint as attempting to allege a violation of a 17 right secured by the United States Constitution under 42 U.S.C.1983 or Bivens v. Six 18 Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971), which is the federal analog 19 to suits brought under § 1983. Iqbal, 556 U.S. at 675.1 To state a claim under § 1983, a 20 plaintiff must allege two essential elements: (1) that a right secured by the Constitution or 21 laws of the United States was violated; and (2) that the alleged violation was committed by 22 a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); 23 Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987). To state a private 24 cause of action under Bivens, Plaintiff must allege: (1) the violation of a right secured by 25 the Constitution of the United States; and (2) that the alleged deprivation was committed by 26 1 Bivens “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of 28 any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). 27 -2- 1 a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (§ 1983 and 2 Bivens actions are identical save for the replacement of a state actor under § 1983 by a 3 federal actor). 4 As an initial matter, dismissal is appropriate because Plaintiff has failed to plead any 5 facts showing that the instant action is timely. Further, dismissal is appropriate because 6 Plaintiff has not alleged any facts demonstrating that he has suffered a constitutional 7 violation caused by a person acting under color of state law or a federal actor. Indeed, 8 Plaintiff has pled no facts suggesting that he has standing to bring a civil rights action 9 against “The United Klans” predicated on the bombing of the 16th Street Baptist Church in 10 Birmingham, Alabama.2 Plaintiff has not alleged any facts showing that he has suffered an 11 “injury-in-fact.” Accordingly, the Court DISMISSES the complaint for failure to state a 12 claim on which relief may be granted. Because the Court finds that granting leave to 13 amend would be futile, this action is dismissed without leave to amend. Cato v. United 14 States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to amend 15 his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the 16 deficiencies of the complaint could not be cured by amendment.”). 17 III. CONCLUSION 18 For the reasons stated above, IT IS HEREBY ORDERED THAT: 19 1. The complaint is DISMISSED without leave to amend. 20 2. Plaintiff’s IFP application is DENIED as MOOT. 21 3. The Clerk shall close the file and terminate any pending matters. 22 IT IS SO ORDERED. 23 Dated: 5/28/2014 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 24 25 2 To establish Article III standing, Plaintiff must allege facts showing an “injury-infact,” causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). Injury-in-fact requires damage to a “legally protected interest that is both concrete 27 and particularized, and actual or imminent, not conjectural or hypothetical.” Id. at 560 (citations and quotation marks omitted). “The party invoking federal jurisdiction bears the 28 burden of establishing these elements.” Id. at 561. 26 -3-

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