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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ROBERT LINDOW,
Plaintiff,

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Case No.5:17-cv-02782-HRL
ORDER TO SHOW CAUSE RE
SUBJECT MATTER JURISDICTION

v.
MONICA PERKINS, et al.,
Defendants.

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Pro se plaintiff Robert Lindow filed this action under 42 U.S.C. § 1983 for alleged

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violation of his rights under the U.S. Constitution. He claims that defendants wrongfully caused

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one Carl Lindow to be placed in a conservatorship and conspired to gain control over his person

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and estate. The proceedings, says plaintiff, have affected possession of the home where he has

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been living. His complaint asserts claims for “Abuse of Process,” “Intentional Infliction of

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Emotional Distress,” “Declaratory Relief--Land Contract,” and “Declaratory Relief--Powers of

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Conservator Obtained in Violation of Due Process.”

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Having reviewed the allegations of the complaint, this court harbors some doubt whether

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plaintiff has stated a viable federal claim for relief under 42 U.S.C. § 1983. To state a claim under

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§ 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution

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or laws of the United States was violated and (2) that the alleged violation was committed by a

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person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum

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v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987).

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Here, the complaint’s allegations indicate that defendants are all private individuals.

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Private individuals, however, do not act under color of state law, an essential element of a § 1983

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action. See 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. See Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550

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(9th Cir. 1974), cert. denied, 421 U.S. 949 (1975). Simply put: There is no right to be free from

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the infliction of constitutional deprivations by private individuals. See Van Ort v. Estate of

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Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).

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There is nothing here to suggest that defendants acted under color of state law or that

United States District Court
Northern District of California

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defendants’ conduct fairly may be attributable to the state. As such, there would appear to be no

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basis for a § 1983 claim, which is the sole basis for federal jurisdiction. Accordingly, the court

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vacates the August 15, 2017 Initial Case Management Conference. Plaintiff shall instead appear

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before this court on August 22, 2017, 10:00 a.m., Courtroom 2, Fifth Floor, United States District

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Court, 280 South First Street, San Jose, California and show cause why this case should not be

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dismissed.

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SO ORDERED.
Dated: August 10, 2017

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HOWARD R. LLOYD
United States Magistrate Judge

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5:17-cv-02782-HRL Notice sent by U.S. Mail on 8/10/2017 to:
Robert Lindow
286 Jaunell Road
Aptos, CA 95003

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United States District Court
Northern District of California

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