Hollingsworth v. Flinn Springs OA et al

Filing 7

ORDER DISMISSING CIVIL ACTION For Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court DISMISSES Plaintiff's Amended Complaint without further leave to amend for failing to state a claim upon which relief can be gra nted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and CERTIFIES that an IFP appeal from this Order of dismissal would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). The Clerk shall enter judgment and close the file. Signed by Judge Dana M. Sabraw on 3/2/2017.(All non-registered users served via U.S. Mail Service)(aef) (sjt).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JASON HOLLINGSWORTH, CDCR #AX-5810, Case No.: 3:16-cv-01425-DMS-JMA ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) Plaintiff, 13 vs. 14 15 16 FLINN SPRINGS OA, et al., Defendants. 17 18 19 JASON HOLLINGSWORTH (“Plaintiff”), a prisoner incarcerated at Richard J. 20 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, 21 initiated this civil action in June 2016, by filing a complaint and “demand for trial” based 22 on alleged violations of his Fourth and Fifth Amendment rights (ECF No. 1). Plaintiff did 23 not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a); instead he filed a 24 Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2). 25 I. Procedural Background 26 On August 2, 2016, the Court granted Plaintiff leave to proceed IFP, but sua sponte 27 dismissed his complaint for failing to state a claim pursuant to 28 U.S.C. 28 § 1915(e)(2)(B)(ii) (ECF No. 5). Plaintiff was notified of his pleading deficiencies, 1 3:16-cv-01425-DMS-JMA 1 however, and provided an opportunity to amend. (Id. at 5-10). He has since filed an 2 Amended Complaint (ECF No. 6), which also requires screening pursuant to 28 U.S.C. 3 § 1915(e)(2). See Chavez v. Robinson, 817 F.3d 1162, 1167-68 (9th Cir. 2016) (noting 4 § 1915(e)(2)(B)(ii) authorizes a court to dismiss a complaint that fails to state a claim sua 5 sponte and “before defendants are served.”) (citing Lopez v. Smith, 203 F.3d 1122, 1130 6 (9th Cir. 2000) (en banc)). 7 II. Plaintiff’s Amended Complaint 8 Plaintiff’s Amended Complaint alleges essentially the same facts as his original. Cf. 9 ECF No. 1 at 2-5. Specifically, he claims to have purchased a manufactured home from 10 Defendant James Naill, and to have “entered into a contractual agreement” with Defendants 11 Myra O’Leary, the Flinn Springs Owners Association, and Castle Breckenridge 12 Management to lease a lot for his home in the Flinn Springs Mobile Home Park, in El 13 Cajon, California (ECF No. 6 at 2-4.) 14 “Upon [his] incarceration,” however, Plaintiff contends Naill “unlawfully” 15 transferred the title to his home over to Defendant O’Leary, the manager of Flinn Springs, 16 and the Flinn Springs Owners Association (OA). (Id. at 4-6.) Plaintiff claims Defendants 17 Elizabeth Call, Derek Earley, and Joseph Fox, all attorneys for Flinn Springs OA, and 18 Defendant Castle Breckenridge Management Company, each “had a part [in] the illegal 19 taking of [his] family home and property,” and “conspired to commit fraud” and to “cover 20 up the theft,” even though they “should have known” this violated “all state a federal laws.” 21 (Id. at 9.) Plaintiff demands a jury trial and $10 million in damages (Id.) 22 III. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) 23 A. 24 If a prisoner’s complaint “seeks redress from a governmental entity or officer or 25 employee of a governmental entity,” the Court “shall review” the pleading “as soon as 26 practicable after docketing,” and “dismiss the complaint, or any portion of the complaint, 27 if [it] . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 28 U.S.C. § 1915A(a), (b)(1); Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014). Standard of Review 2 3:16-cv-01425-DMS-JMA 1 As noted below, Plaintiff alleges violations of his “civil rights” for alleged violation of “all 2 California and United States federal laws,” (ECF No. 6 at 1-3), but he seeks redress from 3 private citizens, attorneys, his former home owners’ association, and a property 4 management company, none of whom are alleged to be governmental actors. Id. at 2. 5 Therefore, § 1915A(a)’s screening provisions do not apply. See Chavez, 817 F.3d at 1168 6 (quoting § 1915A(a)); see also Thompson v. Hicks, 213 Fed. Appx. 939, 2007 WL 106785 7 at *3 (11th Cir. 2007) (noting that because a private defendant was not a “governmental 8 entity” as described in § 1915A, prisoner’s complaint as to that defendant was not subject 9 to dismissal under § 1915A). 10 Because Plaintiff is proceeding IFP, however, his Complaint is still subject to a sua 11 sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim 12 upon which relief may be granted, or seek[s] monetary relief from a defendant immune 13 from such relief,” regardless of whether he seeks redress from a “governmental entity.” See 14 28 U.S.C. § 1915(e)(2)(B); cf. 28 U.S.C. § 1915A; Coleman v. Tollefson, 135 S. Ct. 1759, 15 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any 16 time if the court determines that—(A) the allegation of poverty is untrue; or (B) the action 17 or appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may 18 be granted.”); Lopez , 203 F.3d at 1127. 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 22 1108, 1112 (9th Cir. 2012). 23 To survive a motion to dismiss, the complaint must contain “a short and plain 24 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). 25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 26 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 27 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 28 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . a 3 3:16-cv-01425-DMS-JMA 1 context-specific task that requires the reviewing court to draw on its judicial experience 2 and common sense.” Id. The “mere possibility of misconduct” falls short of meeting this 3 plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 4 2009). 5 “When there are well-pleaded factual allegations, a court should assume their 6 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 7 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 8 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 9 allegations of material fact and must construe those facts in the light most favorable to the 10 plaintiff.”). 11 However, while the court “ha[s] an obligation where the petitioner is pro se, 12 particularly in civil rights cases, to construe the pleadings liberally and to afford the 13 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 14 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 15 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the 16 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Application to Plaintiff’s Amended Complaint 17 B. 18 Because Plaintiff claims violations of his “civil rights” under “United States federal 19 laws” (ECF No. 6 at 1, 3), and he and is still proceeding without counsel, the Court 20 continues to liberally construe his cause of action to arise under its federal question 21 jurisdiction, 28 U.S.C. § 1331, § 1343 and the Civil Rights Act, 42 U.S.C. § 1983. See 22 Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (where a 23 plaintiff appears in propria persona, the Court must construe his pleadings liberally and 24 afford plaintiff any benefit of the doubt). “A litigant complaining of a violation of a 25 constitutional right does not have a direct cause of action under the United States 26 Constitution” and “must utilize 42 U.S.C. § 1983” instead. Arpin v. Santa Clara Valley 27 Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (citing Azul–Pacifico Inc. v. City of Los 28 Angeles, 973 F.2d 704, 705 (9th Cir. 1992)). 4 3:16-cv-01425-DMS-JMA 1 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 2 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 3 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 4 two essential elements: (1) that a right secured by the Constitution or laws of the United 5 States was violated, and (2) that the alleged violation was committed by a person acting 6 under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 7 1030, 1035-36 (9th Cir. 2015). 8 While Plaintiff’s original complaint specifically invoked the Fourth and Fifth 9 Amendments,1 his Amended Complaint is both more broad and more general: he claims 10 only that Defendants violated a “contractual agreement to follow all California laws and 11 United States federal laws” when they “illegally” transferred his “rights to ownership of 12 property.” (ECF No. 6 at 3, 8.) Thus, even assuming Plaintiff’s Amended Complaint 13 alleged the violation of any constitutional right, he stills fails to include plausible facts to 14 show that that any of the named Defendants did so while “acting under color of state law.” 15 See West; 487 U.S. at 48; Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 16 (9th Cir. 1999) (The party charged with a constitutional deprivation under § 1983 must be 17 a person who may fairly be said to be a governmental actor) (citation and quotations 18 omitted); Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (“Section § 1983 liability 19 attaches only to individuals ‘who carry a badge of authority of a State and represent it in 20 some capacity.’”) (citation omitted). 21 The Constitution protects individual rights only from government action and not 22 from private action; it is only when the government is responsible for the specific conduct 23 24 25 26 27 28 The Court’s August 2, 2016 Order noted neither the Fourth nor the Fifth Amendments apply to the actions of private citizens. See ECF No. 5 at 8 (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984) (Fourth Amendment right to be free from unreasonable search and seizure); Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (Due Process Clause of Fifth Amendment); Ward v. Ryan, 623 F.3d 807, 810 (9th Cir. 2010) (Takings Clause of Fifth Amendment)). 1 5 3:16-cv-01425-DMS-JMA 1 of which the plaintiff complains that individual constitutional rights are implicated. Single 2 Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003). Therefore, private 3 parties do not generally act under color of state law. See Price v. Hawai’i, 939 F.2d 702, 4 707-08 (9th Cir. 1991). Section “1983 excludes from its reach merely private conduct, no 5 matter how discriminatory or wrong.” Sutton, 193 F.3d at 835 (citing Am. Mfrs. Mut. Ins. 6 Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted)); 7 see also Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 551 (9th Cir.1974) (a purely private 8 actor may be liable for his misconduct in state court, but his conduct is not actionable under 9 Section 1983, regardless of how egregious). 10 As noted above, Plaintiff seeks to sue only private actors in this case. Therefore, in 11 its August 2, 2016 Order, the Court cautioned that in order for him to show that the private 12 conduct at issue constituted governmental action, he must allege “something more.” (ECF 13 No. 5 at 7) (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982) (“Action 14 by a private party pursuant to [§ 1983], without something more, [i]s not sufficient to justify 15 a characterization of that party as a ‘state actor.’”)). The Court further noted four different 16 ways by which Plaintiff might be able to plead that “something more”: (1) public function, 17 (2) joint action, (3) governmental compulsion or coercion, and (4) governmental nexus. 18 See id. (citing Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997); Parks Sch. of 19 Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir. 1995); Gorenc v. Salt River Project 20 Agric. Improvement and Power Dist., 869 F.2d 503, 506 (9th Cir. 1989)). 21 Plaintiff’s Amended Complaint, however, still fails to allege facts sufficient to 22 plausibly show that any of the private parties or organizations he has named as Defendants 23 performed any public function traditionally reserved to the State, acted as willful 24 participants in joint action with government agents,2 or was compelled, coerced, or had any 25 26 27 While Plaintiff does allege Defendants “conspired” against him, (ECF No. 6 at 1, 8), he does not allege any of them entered into an agreement or “meeting of the minds” to violate 2 28 6 3:16-cv-01425-DMS-JMA 1 connection whatsoever with the State, when they allegedly deprived Plaintiff of his 2 manufactured home after he was incarcerated. See Iqbal, 556 U.S. at 678; Lugar, 457 U.S. 3 at 939. 4 For all these reasons, the Court finds Plaintiff’s Amended Complaint also fails to 5 state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez, 6 203 F.3d at 1130. Because “the statute mandates dismissal—even if dismissal comes before 7 the defendants are served,” Chavez, 817 F.3d at 1167-68, and Plaintiff has already been 8 provided an opportunity to cure his pleading deficiencies to no avail, the Court further finds 9 leave to amend would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 10 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial of ... leave to 11 amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). 12 IV. Conclusion and Order 13 For the reasons set forth above, the Court DISMISSES Plaintiff’s Amended 14 Complaint without further leave to amend for failing to state a claim upon which relief can 15 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and CERTIFIES that an IFP appeal 16 from this Order of dismissal would not be taken “in good faith” pursuant to 28 U.S.C. 17 § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 18 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal 19 only if appeal would not be frivolous). 20 The Clerk shall enter judgment and close the file. 21 IT IS SO ORDERED. 22 Dated: March 2, 2017 23 24 25 26 27 28 his constitutional rights “in joint action with the State or its agents.” See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (quoting Franklin, 312 F.3d at 445.) 7 3:16-cv-01425-DMS-JMA

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