Mayes v. Singh

Filing 6

ORDER dismissing Plaintiff's complaint without prejudice and without leave to amend; denying as moot Plaintiff's 5 Motion to Appoint Counsel. Signed by U.S. District Judge John C Coughenour. (PM) cc: plaintiff via first class mail

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARK MAYES,

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Plaintiff,

ORDER

v.

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CASE NO. C18-0957-JCC

PRITPAL SINGH, also known as A.J.,

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Defendant.

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This matter comes before the Court on Plaintiff’s complaint (Dkt. No. 4) and motion to

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appoint counsel (Dkt. No. 5). On June 29, 2018, United States Magistrate Judge Brian A.

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Tsuchida granted Plaintiff’s motion to proceed in forma pauperis. (Dkt. No. 3.) This Court has

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reviewed Plaintiff’s complaint under 28 U.S.C. § 1915(e)(2) and concludes that the complaint

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fails to state a claim upon which relief can be granted.

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Plaintiff alleges a federal civil rights claim pursuant to 42 U.S.C. § 1983. (Dkt. No. 4 at

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4–5.) The named Defendant is an employee of a 7-Eleven convenience store in Seattle. (Id. at 2.)

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Plaintiff alleges that while he was shopping at this 7-Eleven, Defendant repeatedly referred to

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him and his brother using a racial slur. (Id. at 7) (“I told the clerk AJ that he shouldn’t use that

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derogatory term. He continued calling myself and my brother a nigga and nigger for about 20

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mins.”). Plaintiff lists his injury as “humiliation” and seeks “monetary damages of $1,000,000

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and the most punitive damages possible.” (Id. at 8.)
ORDER
C18-0957-JCC
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Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court must dismiss a complaint if it fails to

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state a claim upon which relief can be granted. To state a claim upon which relief can be granted,

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a complaint must contain sufficient factual matter, accepted as true, that demonstrates the

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requested relief is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). To

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sustain a section 1983 claim, Plaintiff must show that (1) he suffered a violation of rights

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protected by the Constitution or created by federal statute and (2) the violation was proximately

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caused by a person acting under color of state or federal law. See Crumpton v. Gates, 947 F.2d

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1418, 1420 (9th Cir. 1991). Private citizens are generally not liable under section 1983 because

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they do not act under color of state law. Price v. Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991).

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An exception can be made if the private citizen conspires with a state actor or is jointly engaged

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with a state actor when undertaking a prohibited action. Tower v. Glover, 467 U.S. 914, 920

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(1984).

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Here, Defendant is not a state actor, but an employee of a private business. (Dkt. No. 4 at

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2.) In addition, Plaintiff makes no allegations that Defendant conspired or acted in concert with

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anyone else, let alone a state actor. (See generally id.) Plaintiff’s allegations, although appalling,

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fail to state a claim under section 1983. This is true even when the Court liberally construes

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Plaintiff’s pro se complaint. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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Moreover, the Court cannot conceive of any factual allegations that would make

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Plaintiff’s section 1983 claim, or any federal claim, viable. Therefore, the Court concludes that it

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is appropriate to dismiss Plaintiff’s complaint without leave to amend. See Akhtar v. Mesa, 698

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F.3d 1202, 1212 (9th Cir. 2012) (dismissal without leave to amend appropriate where “it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”).

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Plaintiff’s complaint is DISMISSED without prejudice and without leave to amend. Plaintiff’s

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motion to appoint counsel (Dkt. No. 5) is DENIED as moot.

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//

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//
ORDER
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DATED this 12th day of July 2018.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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