Doss v. Jones et al

Filing 13

ORDER OF DISMISSAL AND DENYING PLAINTIFFS 4 MOTION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Claudia Wilken on 5/31/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 5/31/2013)

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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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ORDER OF DISMISSAL AND DENYING
PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING ORDER

v.
AMOS JOE JONES, SR.,
UNIDENTIFIED ATTORNEY,

(Docket no. 4)

Defendants.

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United States District Court
Northern District of California

Case No.: C 13-1905 CW (PR)

JIMMIE L. DOSS, JR.,

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Plaintiff, a state prisoner incarcerated at San Quentin
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State Prison, has filed a pro se civil rights action pursuant to
42 U.S.C. § 1983.

He has been granted leave to proceed in forma

pauperis.
A federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity.

28 U.S.C.

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§ 1915A(a).

In its review, the court must identify any

cognizable claims and dismiss any claims that are frivolous,
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).

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.

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

Plaintiff alleges that Defendant Amos Joe Jones, Sr., “has

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attempted to commit theft and fraud” to gain illegal access to

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the home left to Plaintiff by his grandmother, and that an

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unidentified attorney, who was supposed to protect Plaintiff’s

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property interest, has failed to do so.

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seeks return of the property to him and monetary damages.

United States District Court
Northern District of California

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Compl. at 3, 5.

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.

Further,

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Accordingly, this action is DISMISSED with prejudice.1

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Further, because Plaintiff’s motion for a temporary restraining

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order seeks the same relief as his complaint, that motion is

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DENIED.

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The Court makes no determination as to whether Plaintiff
may seek relief under state law in a state court action.

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The Clerk of the Court shall enter judgment and close the

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file.

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This Order terminates Docket no. 4.

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IT IS SO ORDERED.

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Dated: 5/31/2013

____________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
Northern District of California

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