Cox v. Raymond Interior Systems

Filing 4

ORDER Dismissing Complaint Without Prejudice and Denying as Moot 3 Motion to Appoint Counsel ; and Denying as Moot 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge John A. Houston on 8/8/2012. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHANE COX,
v.

Plaintiff,

RAYMOND INTERIOR SYTEMS,
ZURICH NORTH AMERICA TOBIN LUCAS
Defendants.

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Civil No. 12cv1722 JAH (DHB)
ORDER DISMISSING
COMPLAINT WITHOUT
PREJUDICE AND DENYING
REQUEST TO PROCEED IN
FORMA PAUPERIS AND
MOTION FOR APPOINTMENT OF
COUNSEL AS MOOT
[Doc. Nos. 1, 2]

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Plaintiff, a non-prisoner appearing pro se, filed a complaint along with a request to

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proceed in forma pauperis and a motion for appointment of counsel. All parties instituting

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any civil action, suit or proceeding in a district court of the United States, except an

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application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C.

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§ 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only

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if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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Notwithstanding payment of any filing fee or portion thereof, a complaint filed by

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any person seeking to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject

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to a mandatory and sua sponte review and dismissal by the court to the extent it is

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“frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking

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monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);

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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.
12cv1722

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§ 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27

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(9th Cir. 2000) (en banc). 28 U.S.C. § 1915(e)(2) mandates that the Court reviewing a

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complaint filed pursuant to the in forma pauperis provisions of Section 1915 make and rule

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on its own motion to dismiss before directing that the complaint be served by the U.S.

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Marshal pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d at 1127.

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As currently plead, it is clear that Plaintiff’s complaint fails to state a claim upon

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which relief can be granted. Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

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of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory.

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Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke

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v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a

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claim on the basis of a dispositive issue of law.”). Alternatively, a complaint may be

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dismissed where it presents a cognizable legal theory yet fails to plead essential facts under

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that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give “detailed factual

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allegations,” he must plead sufficient facts that, if true, “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

Dismissal is

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To meet the requirements of Rule 12(b)(6), “a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547).

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A claim is facially plausible when the factual allegations permit “the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other

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words, “the non-conclusory ‘factual content,’ and reasonable inferences from that content,

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must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009).

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In his complaint, Plaintiff states he suffered a severe spinal injury while working for

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Raymond Interior Systems and was terminated. He further states he was “denied/delayed

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treatment and medications” and his employer, insurance carrier and their lawyers

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“intentionally discriminated” against him as an injured worker. Complaint at 1. He seeks
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12cv1722

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compensation for “malicious and professional negligence and misconduct of [his]

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constitutional rights.” Id.

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It appears Plaintiff seeks relief for employment discrimination. To properly allege

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a claim for employment discrimination, a plaintiff must allege that he is a member of a

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protected class, he performed his job satisfactorily, and he suffered an adverse action or

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was treated differently than similarly situated individuals who were not part of the

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protected class. See Kortan v. California Youth Authority, 217 F.3d 1104, 1113 (9th Cir.

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2000); Chuang v. University of California Davis, 225 F.3d 1115, 1123 (9th Cir. 2000).

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Plaintiff fails to allege he performed his job satisfactorily and was treated differently than

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other similarly situated persons. As such, he fails to state a claim.

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Likewise, Plaintiff fails to state a claim for negligence. The elements of a cause of

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action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty,

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and (3) proximate cause between the breach and (4) the plaintiff’s injury. See Mendoza

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v. City of Los Angeles, 66 Cal.App.4th 1333, 1339 (1998) (citation omitted). The

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complaint alleges no facts to support a claim for negligence.

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To the extent Plaintiff seeks relief for violation of his constitutional rights, Plaintiff

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fails to state a claim. To state a claim for violation of constitutional rights under 42

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U.S.C. § 1983, Plaintiff must allege facts to show that (1) a right secured by the

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Constitution or the laws of the United States was violated, and (2) the alleged violation

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was committed by a person acting under the color of state law. See Long v. County of Los

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Angeles, 442F.3d 1178, 1185 (9th Cir. 2006). Private citizens may be held liable under

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section 1983 only for acts which are alleged to have been taken under the color of state

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law. See Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels

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v. Williams, 474 U.S. 327 (1986); Haygood v, Younger, 769 F.2d 1350, 1354 (9th Cir.

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1985) (en banc). Plaintiff fails to allege the private party defendants acted under state

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law. As such, he fails to state a claim.

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As currently plead, Plaintiff’s complaint fails to state a claim and must be dismissed.

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Because the complaint must be dismissed, Plaintiff’s requests to proceed in forma pauperis
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and for appointment of counsel are moot.

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Accordingly, IT IS HEREBY ORDERED that:

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a claim upon which relief may be granted; and

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The instant complaint is DISMISSED without prejudice for failure to state

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Plaintiff’s request to proceed in forma pauperis and motion for appointment
of counsel are DENIED as moot.

DATED: August 8, 2012

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JOHN A. HOUSTON
United States District Judge

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