Gore v. Walkenhorst's et al

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Lucy H. Koh on 11/21/12. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 11/21/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAMUEL L. GORE,

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Plaintiff,

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vs.

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WALKENHORST’S, et al.,
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Defendants.
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No. C 12-5108 LHK (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

Plaintiff, a California state prisoner proceeding pro se, filed this civil rights action under

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42 U.S.C. § 1983. Plaintiff has been denied leave to proceed in forma pauperis in a separate

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order. For the reasons stated below, the Court dismisses the complaint with leave to amend.

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DISCUSSION
A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. § 1915A(a).

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In its review, the Court must identify any cognizable claims and dismiss any claims that

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are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro

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se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep’t., 901
Order of Dismissal with Leave to Amend
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F.2d 696, 699 (9th Cir. 1988).

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B.

Legal Claims

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In his complaint, Plaintiff alleges that four businesses, who are food vendors, refuse to

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sell him items that are labelled “for women only.” Plaintiff argues that this is discriminatory,

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and violates the Equal Protection Clause.

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Plaintiff names as Defendants Walkenhorst’s, Union Supply, Packages “R” Us, and

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Access Securepak. However, Plaintiff has failed to allege these businesses are organizations

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acting under the color of state law. A person or organization acts under color of state law if he

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“exercise[s] power possessed by virtue of state law and made possible only because the

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wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. at 49 (citation

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and internal quotation marks omitted). A private individual or organization does not act under

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color of state law, an essential element of a Section 1983 action. See Gomez v. Toledo, 446 U.S.

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635, 640 (1980). Purely private conduct, no matter how wrongful, is not covered under Section

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1983. See Ouzts v. Maryland Nat’l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974). Simply put:

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There is no right to be free from the infliction of constitutional deprivations by private actors.

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See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). However, Plaintiff will be

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given an opportunity to amend his complaint, and set forth facts sufficient to demonstrate that

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these businesses were acting under the color of state law, if he can do so in good faith.

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CONCLUSION
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Plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND. If Plaintiff

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believes he can cure the above-mentioned deficiencies in good faith, Plaintiff shall file an

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AMENDED COMPLAINT within thirty days from the date this order is filed to cure the

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deficiencies described above. The amended complaint must include the caption and civil case

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number used in this order (C 12-5108 LHK (PR)) and the words AMENDED COMPLAINT on

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the first page. Plaintiff may not incorporate material from the prior complaint by reference.

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Failure to file an amended complaint within thirty days and in accordance with this order

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will result in dismissal of this action.

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2.

Plaintiff is advised that an amended complaint supersedes the original complaint.

Order of Dismissal with Leave to Amend
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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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3.

Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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4.

It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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and all parties informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

11/21/12
LUCY H. KOH
United States District Judge

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Order of Dismissal with Leave to Amend
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