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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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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7 TYRONE HURT,

Plaintiff,

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vs.

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Case No: C 12-4097 SBA
DISMISSAL ORDER
Docket 3

10 THE UNITED KLANS,

Defendant.

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Tyrone Hurt (“Plaintiff”), proceeding pro se, brings the instant civil rights action

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against “The United Klans.” See Compl., Dkt. 1. Plaintiff has also filed an application to

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proceed in forma pauperis (“IFP”). As set forth below, the Court dismisses this action

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pursuant to 28 U.S.C. § 1915(e)(2), and denies Plaintiff’s IFP application as moot.

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I.

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LEGAL STANDARD
Under § 1915(e)(2), federal courts are authorized to review claims filed IFP prior to

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service and to dismiss the case at any time if the court determines that: (1) the allegation of

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poverty is untrue; (2) the action is frivolous or malicious; (3) the action fails to state a

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claim; or (4) the action seeks monetary relief from a defendant who is immune from such

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relief. A pleading filed by a pro se plaintiff must be liberally construed. Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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To determine whether an IFP complaint passes muster under § 1915, the Court

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applies the same standard applicable to motions to dismiss under Rule 12(b)(6) of the

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Federal Rules of Civil Procedure. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998). A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the

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plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support

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a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “To

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survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S.

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662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

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has facial plausibility when a plaintiff “pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

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U.S. at 678.

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II.

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DISCUSSION
In the instant case, Plaintiff has failed to allege facts stating a claim for relief that is

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plausible on its face. The allegations in the complaint are vague and largely

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incomprehensible. Although not entirely clear, it appears that Plaintiff seeks to state a civil

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rights claim under the Eighth Amendment against “The United Klans” predicated on the

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bombing of the 16th Street Baptist Church in Birmingham, Alabama in 1963. As relief,

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Plaintiff seeks, among other things, an order permanently exiling the Klu Klux Klan from

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the United States.

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The Court construes Plaintiff’s complaint as attempting to allege a violation of a

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right secured by the United States Constitution under 42 U.S.C.1983 or Bivens v. Six

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Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971), which is the federal analog

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to suits brought under § 1983. Iqbal, 556 U.S. at 675.1 To state a claim under § 1983, a

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plaintiff must allege two essential elements: (1) that a right secured by the Constitution or

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laws of the United States was violated; and (2) that the alleged violation was committed by

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a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988);

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Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987). To state a private

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cause of action under Bivens, Plaintiff must allege: (1) the violation of a right secured by

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the Constitution of the United States; and (2) that the alleged deprivation was committed by

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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).
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a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (§ 1983 and

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Bivens actions are identical save for the replacement of a state actor under § 1983 by a

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federal actor).

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As an initial matter, dismissal is appropriate because Plaintiff has failed to plead any

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facts showing that the instant action is timely. Further, dismissal is appropriate because

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Plaintiff has not alleged any facts demonstrating that he has suffered a constitutional

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violation caused by a person acting under color of state law or a federal actor. Indeed,

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Plaintiff has pled no facts suggesting that he has standing to bring a civil rights action

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against “The United Klans” predicated on the bombing of the 16th Street Baptist Church in

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Birmingham, Alabama.2 Plaintiff has not alleged any facts showing that he has suffered an

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“injury-in-fact.” Accordingly, the Court DISMISSES the complaint for failure to state a

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claim on which relief may be granted. Because the Court finds that granting leave to

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amend would be futile, this action is dismissed without leave to amend. Cato v. United

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States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to amend

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his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.”).

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III.

CONCLUSION

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For the reasons stated above, IT IS HEREBY ORDERED THAT:

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1.

The complaint is DISMISSED without leave to amend.

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2.

Plaintiff’s IFP application is DENIED as MOOT.

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3.

The Clerk shall close the file and terminate any pending matters.

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IT IS SO ORDERED.

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Dated: 5/28/2014

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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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
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(citations and quotation marks omitted). “The party invoking federal jurisdiction bears the
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