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)

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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

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