Velarde v. Heartland Christian Homeschool Center, Inc. et al
Filing
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ORDER granting Plaintiff's 3 Motion for Leave to Proceed in Forma Pauperis. Court dismisses Pla's Complaint w/o prejudice for failure to state a claim upon which relief can be granted. Pla is granted 30 days from the date of this Order t o file a First Amended Complaint. Pla is cautioned that his First Amended Complaint must be complete in itself, w/o relying on references to the original Complaint. Pla is further cautioned that if the amended complaint does not state a claim, Court may dismiss his complaint w/o leave to amend. Signed by Judge Irma E. Gonzalez on 1/22/2013. (All non-registered users served via U.S. Mail Service) (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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THOMAS WAYNE VELARDE,
CASE NO. 12-CV-2983-IEG (BLM)
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Plaintiff,
ORDER:
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(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[DOC. NO. 3]
vs.
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AND
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HEARTLAND CHRISTIAN
HOMESCHOOL CENTER, INC.; LYNDA
J. HANSEN; TRICIA STENSRUT; TWILA
LEFTON,
(2) DISMISSING COMPLAINT
[DOC NO. 1]
Defendants.
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Thomas Wayne Velarde (“Plaintiff”), proceeding pro se, filed a civil rights action pursuant
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to 42 U.S.C. § 1983 on December 14, 2012. [Doc. No. 1, Compl.] He filed his Complaint against
Heartland Christian Homeschool Center Inc. (“Heartland Christian”); Lynda J. Hansen, principal
of Heartland Christian; Tricia Stensrut (Lefton), School Administrator (Records) at Heartland
Christian; and Twila Lefton, Student Director at Heartland Christian (collectively “Defendants”).
[Id. at 1-5.] Plaintiff alleges that Defendants violated his freedom of religion and freedom of
association. [Id. at 3-6.] Within these claims, Defendant also alleges that his right to medical care,
access to courts, due process, freedom of speech, and freedom from cruel and unusual punishment
have been violated. [Id.]
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Although Plaintiff has paid the $350 civil filing fee required to commence this action, he
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has also filed a motion to proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. [Doc.
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No. 3, Mot. for Leave to Proceed IFP (“IFP Mot.”)]. For the following reasons, the Court
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GRANTS Plaintiff’s motion for leave to proceed IFP and DISMISSES his complaint.
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I.
Motion to Proceed IFP
Plaintiff has filed a motion to proceed IFP, but has already paid the civil filing fee. [Doc.
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No. 1.] However, his motion to proceed IFP includes a handwritten note that reads: “P.S. For
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other court fees minus the cost of the filing fee.” [Doc. No. 3, IFP Mot. at 3.] The note also
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includes the initials “T.V.,” which are Plaintiff’s initials. [Id.] Therefore, the Court construes his
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motion for IFP as an effort to obtain court-ordered U.S. Marshal service. See Fed. R. Civ. P.
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4(c)(3); 28 U.S.C. § 1915(d).
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Federal Rule of Civil Procedure 4(c)(3) provides that “[a]t the plaintiff’s request, the court
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may order that service be made by a United States marshal or deputy marshal or by a person
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specially appointed by the court.” Fed. R. Civ. P. 4(c)(3). In addition, when a plaintiff is granted
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leave to proceed IFP, the United States Marshal, upon order of the court, is authorized to serve the
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summons and complaint on the plaintiff’s behalf. See 28 U.S.C. § 1915(d); Walker v. Sumner, 14
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F.3d 1415, 1422 (9th Cir. 1993) (overruled on other grounds); Boudette v. Barnette, 923 F.2d 754,
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757 (9th Cir. 1991). A request to proceed IFP need not be filed at any particular time, but may be
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initiated at any stage of a proceeding. See Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D.
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Cal. 1994) (“IFP status may be acquired or lost throughout the course of the litigation”), aff’d in
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pertinent part sub. nom, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995).
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The Court finds that Plaintiff’s motion for leave to proceed IFP is sufficient to show that he
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is financially unable to execute personal service of the summons and complaint. Accordingly, and
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in order to aid in the timely administration of justice in this matter, he will now be permitted to
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proceed IFP pursuant to Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d).
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II.
Sua Sponte Review
Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a) is subject to a
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mandatory and sua sponte review and dismissal by the Court, if it finds the complaint 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); Calhoun
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v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not
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limited to prisoners.”).
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“Dismissal is proper when the complaint does not make out a cognizable legal theory or
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does not allege sufficient facts to support a cognizable legal theory.” Cervantes v. Countrywide
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Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). In order to properly state a claim for
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relief, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint
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must contain more than a “labels and conclusions” or a “formulaic recitation of the elements of a
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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the
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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading
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must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of]
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a legally cognizable right of action.” Id.
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Although pro se complaints enjoy “the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d
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338, 342 (9th Cir. 2010), Rule 8 still “demands more than an unadorned, the-defendant-
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unlawfully-
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harmed-me accusation.” Iqbal, 556 U.S. at 678. The rule of liberal construction “applies only to a
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plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal
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interpretation of a civil rights complaint may not supply essential elements of the claim that were
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not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)
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(quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
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Plaintiff brings his claims of violations of his freedoms of religion and association under 42
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U.S.C. § 1983. [Doc. No. 1, Compl.] Section 1983 provides a cause of action against persons
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acting under color of state law who have violated rights guaranteed by the Constitution. See
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Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). In order to sustain a § 1983 action,
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a plaintiff must show: “(1) a violation of rights protected by the Constitution or created by federal
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statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.”
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Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
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A defendant has acted under color of state law where he has “exercised power ‘possessed
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by virtue of state law and made possible only because the wrongdoer is clothed with the authority
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of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.
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299, 326 (1941)). “The state-action element1 in § 1983 ‘excludes from its reach merely private
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conduct, no matter how discriminatory or wrongful.’” Caviness v. Horizon Cmty. Learning Ctr.,
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Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
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50 (1999) (internal quotation marks omitted)). Where a private party conspires with state officials
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to deprive others of constitutional rights, however, the private party is acting under color of state
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law. See Tower v. Glover, 467 U.S. 914, 920 (1984).
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The Ninth Circuit has explained that “[s]tate action may be found if, though only if, there is
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such a close nexus between the State and the challenged action that seemingly private behavior
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may be fairly treated as that of the State itself.” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d
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950, 955 (9th Cir. 2008) (en banc) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic
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Ass’n, 531 U.S. 288, 295 (2001)). Further, the Ninth Circuit has recognized that it is important to
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identify the challenged action “because an entity may be a State actor for some purposes but not
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for others.” Caviness, 590 F.3d at 812-13 (internal quotation omitted).
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There is no one fact that is “a necessary condition across the board for finding state action;
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nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason
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against attributing activity to the government.” Brentwood Acad., 531 U.S. at 295. The following
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are situations in which the Supreme Court has found state action: when the challenged activity
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results from the State’s exercise of coercive power; when the State provides significant
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encouragement, either overt or covert; when a private actor operates as a willful participant in joint
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“In cases under § 1983, ‘under color’ of law has consistently been treated as the same thing as the
‘state action’ required under the Fourteenth Amendment.” Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)
(quoting United States v. Price, 383 U.S. 787, 794 n.7 (1966)).
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activity with the State or its agents; when a nominally private entity is controlled by an agency of
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the State; when the challenged activity has been delegated a public function by the State; when the
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challenged activity is entwined with governmental policies; and when the government is entwined
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in the challenged activity’s management or control. Id. at 296. In the specific context of private
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schools, the Supreme Court has held that a school’s receipt of public funds does not, by itself,
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make the school’s actions acts of the State. Rendell-Baker, 457 U.S. at 840. Furthermore, where a
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private school’s actions are not compelled or influenced by state regulation, they are likely not acts
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of the State. See id. at 841-42.
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Plaintiff in his complaint describes Heartland Christian as “[a] private business operating
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as a [sic] educational institutional [sic] for children grades [kindergarten]-12.” [Doc. No. 1,
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Compl. at 4.] Therefore, the Court finds that Defendants Heartland Christian and its employees
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are private parties. However, Plaintiff does not allege how Defendants were acting under color of
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state law. Although there is a section under each Defendant listed in the Complaint2 that prompts
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Plaintiff to explain how each acted under color of law, Plaintiff fails to do so. Rather, Plaintiff
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simply summarizes the alleged wrongful actions that each Defendant took. [Id. at 1-2.]
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Because the allegations in Plaintiff’s complaint are insufficient to raise a reasonable
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inference that Defendants acted under color of law, the Court finds that he fails to state a claim for
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relief under § 1983. Accordingly, the Court DISMISSES his complaint without prejudice.
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CONCLUSION
For the reasons above, the Court GRANTS Plaintiff’s motion for leave to proceed IFP.
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However, as currently pleaded, even affording Plaintiff’s complaint the special consideration
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given to pro se claimants, Plaintiff’s Complaint fails to state a claim upon which relief can be
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granted. Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint
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for failure to state a claim upon which relief can be granted.
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Plaintiff is GRANTED thirty (30) days from the date this Order is filed to file a First
Amended Complaint addressing the deficiencies of the pleading set forth above. Plaintiff is
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Plaintiff’s Complaint is typed onto a template for § 1983 complaints. The template prompts Plaintiff
to answer specific questions related to his claims. [Doc. No. 1, Compl.]
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cautioned that his First Amended Complaint must be complete in itself, without relying on
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references to the original Complaint. Plaintiff is further cautioned that any defendant not named or
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claim not re-alleged will be considered waived. See King v. Attiyeh, 814 F.3d 1172, 1177-79 (9th
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Cir. 1996). Plaintiff is also cautioned that if his amended complaint does not state a claim, the
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Court may dismiss his complaint without leave to amend.
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IT IS SO ORDERED.
DATED: January 22, 2013
______________________________
IRMA E. GONZALEZ
United States District Judge
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