Davis v. Doe ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHARLES L. DAVIS, Case No. 1:19-cv-01299-DAD-EPG 11 Plaintiff, ORDER TO SHOW CAUSE RE: SUBJECT MATTER JURISDICTION 12 v. (ECF NO. 1) 13 JERRY DOE, et al., 30 day deadline 14 Defendants. 15 Plaintiff, Charles Davis (“Plaintiff”), is proceeding pro se and in forma pauperis in this 16 action filed September 16, 2019. Plaintiff’s complaint asserts constitutional claims against the 17 Kings Gospel Mission and a lead staff member there. Because these appear to be private entities, 18 not subject to the Constitution or section 1983, it appears that the Court lacks subject matter 19 jurisdiction over this action. 20 The Court will therefore require Plaintiff to show cause why this action should not be 21 dismissed based on lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court 22 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 23 action.”); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“[A] court may raise the 24 question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, 25 even on appeal.”). Plaintiff must file a response to this order within 30 days. 26 I. Legal Standards for Federal Subject Matter Jurisdiction 27 This court is a federal court, which is a court of limited jurisdiction. Gunn v. Minton, 568 28 1 U.S. 251, 256 (2013) (internal quotation marks omitted) (“Federal courts are courts 2 of limited jurisdiction, possessing only that power authorized by Constitution and statute.”). 3 There are two bases for federal subject matter jurisdiction: federal question and diversity. 4 Under federal question jurisdiction, federal district courts “have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. 5 Under diversity jurisdiction, federal district courts “have original jurisdiction of all civil actions 6 where the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . 7 citizens of different states. . . .” 28 U.S.C. § 1332(a). Plaintiff, as the party invoking federal 8 jurisdiction, “has the burden of proving the actual existence of subject matter jurisdiction.” 9 Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). 10 Plaintiff appears to be asserting causes of action under the U.S. Constitution. Individuals 11 and private entities are not normally liable for violations of most rights secured by the United 12 States Constitution. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). In order to maintain 13 a cause of action based on an allegation of constitutional violations, a plaintiff must show that the 14 actions complained of are “fairly attributable” to the government. Rendell–Baker v. Kohn, 457 15 U.S. 830, 838 (1982); see also Vincent v. Trend Western Technical Corp., 828 F.2d 563, 567 (9th 16 Cir.1987). 17 This state action requirement is also statutory under the statute that provides a private 18 right of action to enforce constitutional violations against state actors. Specifically, 42 U.S.C. § 19 1983 states that “Every person who, under color of any statute, ordinance, regulation, custom, or 20 usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, 21 any citizen of the United States or other person within the jurisdiction thereof to the deprivation 22 of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable . . . .” 23 42 U.S.C. § 1983. Thus, for actions arising under 42 U.S.C. § 1983, “a plaintiff must show that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the 24 State.” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) 25 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Therefore, “merely private 26 conduct” is not actionable under § 1983, “no matter how discriminatory or wrongful.” Id. 27 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). A state action is a 28 1 jurisdictional requirement. Peng v. Mei Chin Penghu, 335 F.3d 970, 980-81 (9th Cir. 2003) 2 (affirming dismissal against defendants in § 1983 action for lack of subject matter jurisdiction 3 because defendants were not state actors). 4 The exception is when “there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Caviness, 5 590 F.3d at 812. In Brentwood Academy v. Tennessee Secondary School Athletic Association, the 6 Supreme Court listed seven instances where a private actor’s conduct may properly be considered 7 a state action: 8 We have, for example, held that a challenged activity may be state 9 action when it results from the States exercise of coercive power, 10 when the State provides significant encouragement, either overt or covert, or when a private actor operates as a willful participant in 11 joint activity with the State or its agents. We have treated a nominally private entity as a state actor when it is controlled by an 12 agency of the State, when it has been delegated a public function by 13 the State, when it is entwined with governmental policies, or when government is entwined in its management or control. 14 531 U.S. 288, 296 (2001) (internal quotation marks, citations and brackets omitted). 15 II. Application to Plaintiff’s Complaint 16 Plaintiff’s Complaint (ECF No. 1) alleges two claims under the U.S. Constitution against 17 Kings Gospel Mission (“the Mission”) and Jerry Doe, a lead staff member at the Mission. This 18 appear to be private, not government, actors. Thus, they are not subject to the U.S. Constitution, 19 and cannot be sued under Section 1983. Without any such federal claim, the Court lacks 20 jurisdiction over Plaintiff’s complaint against them. 21 In Plaintiff’s complaint, Plaintiff states that the Kings Gospel Mission is a “Public Entity, 22 non-profit faith based organization.” (ECF No. 1, at 4.) However, Plaintiff does not assert any 23 facts that establish that it is a public entity. The Court takes judicial notice,1 that the Kings 24 Gospel Mission’s webpage states that “Kings Gospel Mission & Cornerstone Industries does not 25 accept or solicit government grants.” https://kingsgospelmission.org/. This appears to confirm 26 that it is a private entity, and not a government actor. 27 28 1 Federal Rule of Evidence 201. Wow 4:fGO VLOGS AEE ET NS MMV UOT OT EN PAYG TM 1 The Complaint also does not include factual allegations that support a finding of diversity 2 || jurisdiction. To the contrary, the Complaint lists Plaintiff's mailing address as being in Hanford, 3 | CA, and that the Mission is at 805 W. 7th St., Hanford, CA. 4 II. Conclusion and Order to Show Cause 5 Accordingly, Plaintiff is ORDERED to show cause why this case should not be dismissed 6 | for lack of subject matter jurisdiction. 7 Plaintiff shall file, within 30 days of the date of this Order, either: (1) an amended g | complaint alleging facts demonstrating the basis of this Court’s subject matter jurisdiction; or (2) g || aresponse to this Order to Show Cause otherwise demonstrating the basis for the Court’s subject 19 || matter jurisdiction. ll Plaintiff is cautioned that failure to respond to this Order to Show Cause may result in the dismissal of this action. 13 IT IS SO ORDERED. 14 is | Dated: _ April 16, 2020 [le ey □ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28