Palik v. Palik, et al

Filing 25

ORDER Vacating Motion Hearing; ORDER TO SHOW CAUSE re Subject Matter Jurisdiction. 9/17/2013 preliminary injunction hearing vacated. Plaintiff's Show Cause Response due by 9/19/2013, not to exceed 5 pages. Signed by Magistrate Judge Howard R. Lloyd on 9/10/2013. (hrllc2, COURT STAFF) (Filed on 9/10/2013)

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*E-FILED: September 10, 2013*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY J. PALIK,

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Case No. 5:13-cv-03630 HRL

Plaintiff,
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v.
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MEGAN PALIK, a natural person and real
party in interest; and HON. KENNETH J.
MELKIAN, Judge of the El Dorado County
Superior court in his individual capacity,

United States District Court
Northern District of California

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ORDER VACATING MOTION
HEARING AND DIRECTING
PLAINTIFF TO SHOW CAUSE RE
SUBJECT MATTER JURISDICTION

Defendants.

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On August 5, 2013, plaintiff Anthony J. Palik filed this action for alleged violation of his

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civil rights under 42 U.S.C. § 1983. The two named defendants are his estranged wife Megan

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Palik and a state court judge who issued a contempt order against plaintiff in the Paliks’ ongoing

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dissolution proceedings. In sum, plaintiff claims that his child support payments were not

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properly calculated under California law and that he was unlawfully held in contempt for his

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failure to comply with an order setting out his support obligations.

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Plaintiff now moves for a preliminary injunction precluding Megan Palik from taking any

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action to enforce the support order in the underlying state court proceedings. Having reviewed the

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record presented, however, this court vacates the September 17, 2013 preliminary injunction

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hearing and directs plaintiff to show cause re this court’s subject matter jurisdiction as to the

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claims against Megan Palik. 1

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Plaintiff seeks declaratory and injunctive relief under 42 U.S.C. § 1983. A private
individual or entity, however, does not act under color of state law, an essential element of a §

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Megan Palik is the only defendant who currently is before the court.

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1983 action. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Purely private conduct, no matter how

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wrongful, is not covered under § 1983. Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th

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Cir. 1974), cert. denied, 421 U.S. 949 (1975). Simply put: There is no right to be free from the

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infliction of constitutional deprivations by private individuals or entities. Van Ort v. Estate of

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Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). Here, plaintiff’s complaint is based solely upon

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Megan Palik’s alleged conduct as a litigant in the underlying divorce proceedings. The complaint

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contains no facts even suggesting that she could be considered a state actor. And, bare allegations

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unsupported by plausible facts do not suffice to state a claim for relief. Nor do the allegations of

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the complaint indicate that plaintiff could amend his complaint to state a § 1983 claim against her.

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While the complaint also seeks relief under the Declaratory Judgment Act, 28 U.S.C. §§

United States District Court
Northern District of California

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2201, 2202, that act does not by itself confer federal subject matter jurisdiction. Nationwide Mut.

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Ins. Co. v. Liberatore, 408 F.3d 1158, 1161 (9th Cir. 2005). See also Vaden v. Discover Bank,

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559 U.S. 49, 129 S. Ct. 1262, 1278 n.19 2009 (“[T]he Declaratory Judgment Act does not enlarge

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the jurisdiction of the federal courts; it is ‘procedural only.’”).

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Although plaintiff’s complaint also bases federal jurisdiction on the Supreme Court’s

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decision in Turner v. Rodgers, 131 S. Ct. 2507, 180 L.Ed.2d 452 (2011), this court sees nothing in

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that decision supporting the notion that plaintiff properly may pursue a § 1983 claim against

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Megan Palik.

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Accordingly, no later than September 19, 2013, plaintiff shall file a response to this order,

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explaining the basis for federal jurisdiction as to Megan Palik. Plaintiff’s response shall not

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exceed five pages.

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SO ORDERED.
Dated: September 10, 2013
______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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5:13-cv-03630-HRL Notice has been electronically mailed to:

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Fernando Fabela Chavez

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Thomas J. Ferrito

[e-mail], [e-mail]

[e-mail]

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United States District Court
Northern District of California

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