Navarro v. United States of America et al

Filing 24

ORDER granting 12 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jeffrey L. Viken on 8/30/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5033-JLV

JIM NAVARRO,
Plaintiff,

ORDER

vs.
MR. DAVID EMERY,
MR. FRED GRANTHAM,
BLACK HILLS ENERGY,
Defendants.
INTRODUCTION

Plaintiff Jim Navarro filed a complaint against defendants alleging a
violation of his constitutional rights. (Docket 1). Defendants filed a motion to
dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Docket 12). For
the reasons stated below, defendants’ motion to dismiss is granted.
ANALYSIS
Defendants assert five grounds for dismissal of plaintiff’s complaint.
(Docket 12). Those grounds are summarized as follows:
1.

Because there is no state action alleged, there is no claim
under 42 U.S.C. § 1983;1

Defendants’ motion and briefs erroneously cite 28 U.S.C. § 1983.
(Dockets 12, 17 & 21). Because defendants’ briefs cite to case law addressing
the applicability of 42 U.S.C. § 1983 to activities similar to those alleged in
plaintiff’s complaint, the court will examine plaintiff’s complaint in light of this
statute.
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2.

Because defendants are not a public entity, there is no claim
under Title II of the Americans with Disabilities Act of 1990;

3.

The complaint fails to state a claim under Title VI of the Civil
Rights Act;

4.

The complaint fails to state a claim under the Age
Discrimination Act of 1975; and

5.

There is no right of private action under 18 U.S.C. §§ 371,
1341 or 1343.

(Docket 12 at p. 1). Mr. Navarro resists defendants’ motion. (Dockets 20 & 22).
Rule 12(b)(6) provides for dismissal if the plaintiff fails to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In evaluating the
defendants’ Rule 12(b)(6) motion, the court accepts as true all of the factual
allegations contained in plaintiff’s complaint and grants all reasonable
inferences in favor of plaintiff as the nonmoving party. Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ”) (citing Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). See
also Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (the court must review “a
Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the facts
alleged in the complaint as true and granting all reasonable inferences in favor of
the plaintiff, the nonmoving party.”) (brackets omitted). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of

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the elements of a cause of action will not do[.]” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citations omitted). “[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679.
Because Mr. Navarro is proceeding pro se, his pleading must be liberally
construed and his complaint, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted).
The factual allegations are summarized as follows:
1.

Mr. Navarro, an elderly person, had the electrical services to
his residence disconnected without advance notice by Black
Hills Energy;

2.

Black Hills Energy initiated a new disconnection policy
without notice;

3.

Black Hills Energy made him pay a reconnect fee before
reestablishing electrical service; and

4.

The defendants did not take him at his word that he was
telling the truth.

(Docket 1 at p. 4). These allegations of fact are accepted as true for purposes of
Rule 12(b)(6) analysis. Braden, 588 F.3d at 594. Mr. Navarro seeks
compensatory and punitive damages for his alleged pain and suffering and for
the loss of the food in his freezer for the eight days he alleges being without
electrical services. Id. at p. 5.
Each of defendants’ arguments for dismissal will be separately addressed.

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1.

SECTION 1983
Defendants seek dismissal of the § 1983 claim on the basis that the

complaint fails to allege any state action or state actors. (Docket 13 at p. 3).
Defendants assert the complaint acknowledges Black Hills Energy is a private
company. Id. at p. 4. Thus, defendants argue that the action by a private
entity and its employees do not “elevate the alleged conduct to the level of ‘state
action’ for purposes of Section 1983.” Id. Under case authority cited, the
defendants contend “the absence of any state action justifies dismissal of any
due process, equal protection and . . . section 1983 claims.” Id. at p. 6
(referencing Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), and
Occhino v. Northwestern Bell Telephone Co., 675 F.2d 220 (8th Cir. 1982)).
Mr. Navarro’s response does not specifically address the application of
Jackson or Occhino and does not offer any legal authority in resistance to
defendants’ motion to dismiss.2 (Docket 20). Rather, plaintiff’s 23-page
response principally makes derogatory and inappropriate comments against
defense counsel and suggests defendants were fools for not accepting his offer of
settlement. Id. The only additional factual statement made in Mr. Navarro’s
response is that he is a beneficiary of a program identified as “LEAP,” which
assists certain individuals with their home heating expense during the winter

The court specifically ordered Mr. Navarro to file “a responsive brief
containing specific points of law with authorities.” (Docket 19 at p. 1)
(referencing D.S.D. Civ. LR 7.1(B)).
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months. Id. at pp. 3 and 16-17. Again, for purposes of this Rule 12(b)(6)
analysis, the court will accept this statement as true. Braden, 588 F.3d at 594.
The Civil Rights Act provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983. “The traditional definition of acting under color of state law
requires that the defendant in a § 1983 action have exercised power ‘possessed
by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.’ ” Parker v. Boyer, 93 F.3d 445, 447-48 (8th Cir.
1996) (emphasis added) (quoting West v. Atkins, 487 U.S. 42, 49 (1988) (further
citations omitted). “The injury complained of must have been caused by the
exercise of some right or privilege created by the state, by a rule of conduct
imposed by the state, or by a person for whom the state is responsible.” Id. at
448. “Section 1983 does not confer subject matter jurisdiction. The statute
simply provides a means through which a claimant may seek a remedy in federal
court for a constitutional tort when one is aggrieved by the act of a person acting
under color of state law.” Jones v. United States, 16 F.3d 979, 981 (8th Cir.
1994).

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Mr. Navarro’s complaint does not allege the defendants were acting under
color of state law. The court cannot infer from the complaint that the
defendants were acting under color of state law. Braden, 588 F.3d at 594.
In Jackson, the plaintiff filed a civil rights claim under 42 U.S.C. § 1983
against the defendant seeking money damages and an injunction against the
electrical utility company for terminating electrical service to her home without
notice. Jackson, 419 U.S. at 347. The plaintiff argued she was entitled to
advance notice of the potential termination of electrical service and “a hearing,
and an opportunity to pay any amounts found due.” Id. The Supreme Court
acknowledged a private utility company is subject to state regulation but
concluded disconnection of electrical services without notice “does not by itself
convert its action into that of the State for purposes of the Fourteenth
Amendment.” Id. at 350. Being a state regulated business “do[es] not . . .
convert [its] every action, absent more, into that of the State.” Id. at 354.
Plaintiff’s § 1983 claim in Jackson failed as a matter of law. Id. at pp. 359-60.
The principle established in Jackson was adopted by the United States
Court of Appeals for the Eighth Circuit in Occhino, 675. F.2d at 225. “Under
the principles elaborated in Jackson, Northwestern did not act under color of
state law in disconnecting Occhino’s telephone. . . . Accordingly, the steps
Northwestern Bell took in terminating Occhino’s telephone service cannot be
fairly treated as that of Minnesota itself.” Id. “Having concluded that
Northwestern Bell’s actions in terminating Occhino’s telephone service were not

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effectuated under color of state law, it is clear that section 1983 is inapplicable to
this case.” Id.
Mr. Navarro has neither pled sufficient facts nor advanced a meritorious
argument that his case is any different from those presented in Jackson and
Occhino. Black Hills Energy and its employees were not acting under color of
state law at the time of the termination of the electrical services to Mr. Navarro’s
residence. Mr. Navarro’s complaint fails to state a viable § 1983 claim.
2.

THE AMERICANS WITH DISABILITIES ACT
Defendants argue Mr. Navarro’s complaint fails to state a claim under the

Americans with Disabilities Act (“ADA”). (Docket 13 at p. 6). Defendants assert
“Mr. Navarro did not alleged that he was a qualified individual with a disability or
that his electrical service was disconnected ‘by reason of a disability.’ ” Id.
They also argue that Black Hills Energy is not a “public entity” under the ADA.
Id. at p. 7 (referencing 42 U.S.C. § 12131(b)). “Because Mr. Navarro has not,
and cannot, allege sufficient facts to support a conclusion that the Black Hills
Defendants are ‘creatures’ of a state or municipality,” the defendants contend
“his claim under Title II of the ADA lacks ‘facial plausibility,’ and should be
dismissed.” Id. at p. 8 (referencing Green v. City of New York, 465 F.3d 65,
79 (2d Cir. 2006)).
“Title II of the ADA . . . prohibits qualified individuals with disabilities
from being excluded from participation in or the benefits of the services,
programs, or activities of a public entity.” Randolph v. Rodgers, 170 F.3d 850,

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857 (8th Cir. 1999) (citing 42 U.S.C. § 12131 et seq.). “A qualified individual
with a disability is defined as any person who ‘meets the essential eligibility
requirements for the receipt of services or the participation in programs or
activities provided by a public entity.’ ” Id. (citing 42 U.S.C. § 12131(2)). “The
term ‘public entity’ is defined as ‘any department, agency, special purpose
district, or other instrumentality of a State or States or local government.’ ” Id.
(citing 42 U.S.C. § 12131(1)). “To state a prima facie claim under the ADA, a
plaintiff must show: 1) he is a person with a disability as defined by statute; 2) he
is otherwise qualified for the benefit in question; and 3) he was excluded from the
benefit due to discrimination based upon disability.” Id. at 858.
Mr. Navarro does not allege that he is an individual with a disability who
qualifies for protection under the ADA. Nor does he allege that Black Hills
Energy is an “instrumentality” of the state of South Dakota. See 42 U.S.C.
§ 12131(1). The complaint fails to state a viable claim under the Americans with
Disabilities Act.
3.

TITLE VI OF THE CIVIL RIGHTS ACT
Defendants submit the complaint fails to state a “viable claim under Title

VI of the Civil Rights Act of 1964.” (Docket 13 at p. 8) (bold omitted). First,
defendants contend “Mr. Navarro has not alleged, any facts or identified any
basis, which would indicate that he was ‘excluded from’ or ‘denied the benefits of’
a program or activity which receives any federal assistance and which was
administered by the Black Hills Defendants.” Id. at p. 9. Second, the

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defendants contend Mr. Navarro was not subjected to “intentional
discrimination. . . . Proof of a disparate impact does not provide a sufficient
predicate for a Title VI claim.” Id. at p. 10 (referencing Alexander v. Sandoval,
532 U.S. 275 (2001). Finally, the defendants argue “Mr. Navarro cannot state a
claim against any of the named ‘individuals’ under Title VI.” Id. (referencing
GEOD Corp. v. New Jersey Transit Corp., 678 F. Supp. 2d 276 (D.N.J. 2009)).
Title VI of the Civil Rights Act of 1964 states “[n]o person in the United
States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 42 U.S.C.
§ 2000d. “Although Title VI does not mention a private right of action, the
Supreme Court’s decisions have found an implied right of action.” Freeman v.
Fahey, 374 F.3d 663, 666 (8th Cir. 2004) (emphasis in original) (referencing
Barnes v. Gorman, 536 U.S. 181, 185 (2002) and Alexander, 532 U.S. at 279-80)
(brackets omitted). “Title VI itself directly reaches only instances of intentional
discrimination.” Alexander, 532 U.S. at 281 (brackets omitted). “Proof of
disparate impact is not sufficient.” Mumid v. Abraham Lincoln High School,
618 F.3d 789, 794 (8th Cir. 2010) (referencing Alexander, 532 U.S. at 280-81).
The LEAP program identified by Mr. Navarro is conducted through the
Colorado State Department of Revenue. (Docket 20 at p. 17). Mr. Navarro
identifies no federal financial assistance program through which he receives

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benefits and in which he was discriminated against on the basis of his race, color
or national origin.
Mr. Navarro has not alleged he was denied access to the electrical services
provided by Black Hills Energy on the basis of his race, color or national origin.
If Mr. Navarro is a qualified individual under Title VI, which the court cannot
presume, the policy of Black Hills Energy to disconnect electrical service to those
who fail to pay their monthly bill would at most be a policy which causes a
disparate impact and would not constitute proof of intentional discrimination on
the basis of race, color or national origin. Mumid, 618 F.3d at 794. The
complaint fails to state a viable Title VI claim.
4.

THE AGE DISCRIMINATION ACT OF 1975
The defendants contend the complaint fails to state a claim under the Age

Discrimination Act (“ADA”). (Docket 13 at p. 11). They argue Mr. Navarro “has
failed to allege any facts which would support a conclusion that he was ‘excluded
from participation in, [was] denied the benefits of, or [was] subject to
discrimination under [a] program or activity receiving federal financial assistance
due to his age.” Id. (referencing 42 U.S.C. § 3102). Additionally, defendants
assert Mr. Navarro failed to allege compliance with the administrative exhaustion
requirement of the ADA. Id. at p. 12 (referencing 42 U.S.C. § 6102(e)(2)).
Finally, defendants argue the ADA “does not create a private right of action for
monetary damages.” Id. (referencing Tyrrell v. City of Scranton, 134 F. Supp. 2d

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373, 383-384 (M.D. Penn. 2001) and Sheskey v. Madison Metropolitan School
District, No. 12-CV-488, 2015 WL 881393 at *4 (W.D. Wis. Mar. 2, 2015)).
The ADA provides that “no person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under, any program or activity receiving Federal
financial assistance.” 42 U.S.C. § 6102. As a prerequisite to suit the ADA
requires “notice by registered mail not less than 30 days prior to the
commencement of that action to the Secretary of Health and Human Services,
the Attorney General of the United States, and the person against whom the
action is directed.” 42 U.S.C. § 6104(e)(1). “The notice . . . shall state the
nature of the alleged violation, the relief to be requested, the court in which the
action will be brought, and whether or not attorney’s fees are being demanded in
the event that the plaintiff prevails.” 42 U.S.C. § 6104(e)(2). “No action . . .
shall be brought (A) if at the time the action is brought the same alleged violation
by the same defendant is the subject of a pending action in any court of the
United States; or (B) if administrative remedies have not been exhausted.” Id.
As discussed above, Mr. Navarro identifies no federal financial assistance
program in which he is a participant. Additionally, he alleges no facts showing
that he was excluded from any program, was denied benefits or was
discriminated against on the basis of age. Finally, the record does not contain
sufficient facts to show that Mr. Navarro provided adequate notice of his
intention to file suit under the ADA. See 42 U.S.C. § 6104(e)(1). After the

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commencement of this lawsuit, Mr. Navarro sent a letter by telefax on December
6, 2016, to Loretta Lynch, then the Attorney General of the United States.
(Docket 20 at p. 6). The single page, hand-written letter did not comply in any
way with the notice requirements of § 6104(e)(2). The record is silent as to any
effort by Mr. Navarro prior to the commencement of his lawsuit demonstrating
that he attempted to comply with the administrative process which is a
prerequisite to filing in district court. See 42 U.S.C. § 6104(e)(2). Mr. Navarro
failed to satisfy the statutory requirements for bringing this lawsuit in federal
court. The complaint fails to state a viable ADA claim.
5.

18 U.S.C. §§ 371, 1341 and 1343.
Defendants seek dismissal of that portion of plaintiff’s complaint asserting

claims pursuant 18 U.S.C. §§ 371, 1341 and 1343. (Docket 13 at p. 13). They
contend that “[e]xcept where specifically provided by statute, there is no private
cause of action arising from a criminal statute.” Id. (referencing Wisdom v. First
Midwest Bank, of Poplar Bluff, 167 F.3d 402,408-408 (8th Cir. 1999) (citing
Thompson v. Thompson, 484 U.S. 174,179 (1988)).
The United States Court of Appeals for the Eighth Circuit specifically held
there is no “private right of action in . . . either the mail fraud [18 U.S.C. § 1341]
or wire fraud [18 U.S.C. § 1343] statutes.” Wisdom, 167 F.3d at 408. This
court previously concluded there is no private cause of action under 18 U.S.C.
§ 371, conspiracy to defraud the United States. See Lamont v. Haig, 539 F.
Supp. 552, 558 (D.S.D. 1982) (“To the extent plaintiff’s complaint purports to

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state a cause of action under 18 U.S.C. § . . . 371 . . . it is dismissed.”). Mr.
Navarro’s complaint fails to state a viable cause of action pursuant to 18 U.S.C.
§ 361, 1341 or 1343.
ORDER
Based on the above analysis, it is
ORDERED that defendants’ motion to dismiss (Docket 12) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed without prejudice.
Dated August 30, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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