(PS) Tanksley v. Elica Health Center ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MOODY WOODROW TANKSLEY, No. 2:20–cv–1850–KJM–KJN PS 12 Plaintiff, ORDER GRANTING IFP AND RECOMMENDATION TO DISMISS 13 v. (ECF No. 5) 14 ELICA HEALTH CENTER, et al., 15 Defendants. 16 17 On September 14, 2020, plaintiff filed his complaint, which was labeled a “prisoner civil 18 rights case,” but the court reclassified the case as a pro se civil case.1 (ECF No. 1, 2.) The court 19 ordered plaintiff to either pay the filing fee or submit an application to proceed in forma pauperis, 20 and plaintiff chose the latter. (ECF Nos. 3, 5.) Plaintiff’s application in support of his request to 21 proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. Accordingly, the 22 court grants plaintiff’s request to proceed in forma pauperis. 23 The determination that a plaintiff may proceed in forma pauperis does not complete the 24 inquiry. Under 28 U.S.C. Section 1915, the court must dismiss the case if it determines that the 25 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 26 which relief may be granted, or seeks monetary relief against an immune defendant. 27 28 1 This matter was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). 1 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 2 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) dismissal may be based on the 3 lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable 4 legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). In evaluating whether 5 a pleading states sufficient facts on which to base a claim, all well-pled factual allegations are 6 accepted as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and the complaint must be construed 7 in the light most favorable to the non-moving party, Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 8 (9th Cir. 2007). The court is not, however, required to accept as true “conclusory [factual] 9 allegations that are contradicted by documents referred to in the complaint,” or “legal conclusions 10 merely because they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d 11 1061, 1071 (9th Cir. 2009). Thus, to avoid dismissal for failure to state a claim, a complaint must 12 contain more than “naked assertions,” “labels and conclusions,” or “a formulaic recitation of the 13 elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). 14 Simply, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to 15 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 16 550 U.S. at 570). Plausibility means pleading “factual content that allows the court to draw the 17 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 18 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn. 7 19 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 20 to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure 21 them––if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 22 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to 23 amend need be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 24 Here, it appears from the facts asserted that plaintiff is attempting to lodge a complaint 25 against four employees of Elica Health Centers, a private institution. (See ECF Nos. 1 at 3.) 26 Plaintiff asserts unnamed violations of his rights under 42 U.S.C. Section 1983. (See Id.) As the 27 court informed plaintiff in its prior order, to state a claim for relief in an action brought under 28 Section 1983, plaintiff must establish that “the alleged deprivation was committed under color of 2 LUV EV LOGUE INIT IN RAI PI I er OY VI 1 | state law.” See Heineke v. Santa Clara Univ., 965 F.3d 1009, 1012 (9th Cir. 2020) (quoting Am. 2 || Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Section 1983 “excludes from its 3 | reach merely private conduct, no matter how discriminatory or wrong.” Id. Therefore, the court 4 | must recommend dismissal of plaintiff’s Section 1983 claims against all defendants. See Id. at 5 | 1014 (affirming dismissal of Section 1983 claim where they were asserted against private 6 || parties). Further, since granting amendment would be futile, the court recommends dismissal 7 || with prejudice. Cahill, 80 F.3d at 339. 8 ORDER AND RECOMMENDATIONS 9 Accordingly, the court GRANTS plaintiff’s motion to proceed IFP. It is further 10 | RECOMMENDED that: 11 1. Plaintiff’s complaint be DISMISSED WITH PREJUDICE; and 12 2. The Clerk of the Court be directed to CLOSE this case. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 15 | days after being served with these findings and recommendations, any party may file written 16 || objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 18 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 19 || objections. The parties are advised that failure to file objections within the specified time may 20 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 21 } Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 22 | Dated: October 2020 23 Aectl Aharon 24 KENDALL J. NE tak. 1853 UNITED STATES MAGISTRATE JUDGE 25 26 27 28