Lindow v. Perkins et al
Filing
9
ORDER TO SHOW CAUSE RE SUBJECT MATTER JURISDICTION. 8/15/2017 Initial Case Management Conference vacated. Plaintiff to appear for Show Cause Hearing set for 8/22/2017 10:00 AM. Signed by Magistrate Judge Howard R. Lloyd on 8/10/2017. (hrllc2S, COURT STAFF) (Filed on 8/10/2017)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
United States District Court
Northern District of California
11
12
ROBERT LINDOW,
Plaintiff,
13
14
15
16
Case No.5:17-cv-02782-HRL
ORDER TO SHOW CAUSE RE
SUBJECT MATTER JURISDICTION
v.
MONICA PERKINS, et al.,
Defendants.
17
18
Pro se plaintiff Robert Lindow filed this action under 42 U.S.C. § 1983 for alleged
19
violation of his rights under the U.S. Constitution. He claims that defendants wrongfully caused
20
one Carl Lindow to be placed in a conservatorship and conspired to gain control over his person
21
and estate. The proceedings, says plaintiff, have affected possession of the home where he has
22
been living. His complaint asserts claims for “Abuse of Process,” “Intentional Infliction of
23
Emotional Distress,” “Declaratory Relief--Land Contract,” and “Declaratory Relief--Powers of
24
Conservator Obtained in Violation of Due Process.”
25
Having reviewed the allegations of the complaint, this court harbors some doubt whether
26
plaintiff has stated a viable federal claim for relief under 42 U.S.C. § 1983. To state a claim under
27
§ 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution
28
or laws of the United States was violated and (2) that the alleged violation was committed by a
1
person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum
2
v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987).
3
Here, the complaint’s allegations indicate that defendants are all private individuals.
4
Private individuals, however, do not act under color of state law, an essential element of a § 1983
5
action. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Purely private conduct, no matter how
6
wrongful, is not covered under § 1983. See Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550
7
(9th Cir. 1974), cert. denied, 421 U.S. 949 (1975). Simply put: There is no right to be free from
8
the infliction of constitutional deprivations by private individuals. See Van Ort v. Estate of
9
Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).
10
There is nothing here to suggest that defendants acted under color of state law or that
United States District Court
Northern District of California
11
defendants’ conduct fairly may be attributable to the state. As such, there would appear to be no
12
basis for a § 1983 claim, which is the sole basis for federal jurisdiction. Accordingly, the court
13
vacates the August 15, 2017 Initial Case Management Conference. Plaintiff shall instead appear
14
before this court on August 22, 2017, 10:00 a.m., Courtroom 2, Fifth Floor, United States District
15
Court, 280 South First Street, San Jose, California and show cause why this case should not be
16
dismissed.
17
18
SO ORDERED.
Dated: August 10, 2017
19
20
HOWARD R. LLOYD
United States Magistrate Judge
21
22
23
24
25
26
27
28
2
1
2
3
5:17-cv-02782-HRL Notice sent by U.S. Mail on 8/10/2017 to:
Robert Lindow
286 Jaunell Road
Aptos, CA 95003
4
5
6
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?