(PS) Warfield v. Hale ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRODERICK J. WARFIELD, No. 2:22–cv–1950–DAD–KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS 14 MELVIN HALE, (ECF No. 2.) 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 Legal Standards 2 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 3 relief can be granted.” Rule 12(b)(6). A complaint fails to state a claim if it either lacks a 4 cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix, 5 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a 6 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 7 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 8 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 9 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a 11 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 12 pleads factual content that allows the court to draw the reasonable inference that the defendant is 13 liable for the misconduct alleged.” Id. 14 When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the well-pleaded factual allegations as true, Erickson v. Pardus, 551 U.S. 16 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan 17 v. Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 18 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 19 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 20 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). Pro se pleadings are to be liberally construed. 21 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even 22 post–Iqbal). If amendment would be futile, no leave to amend need be given. Cahill v. Liberty 23 Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 24 Analysis 25 Here, as best the court can tell, plaintiff’s complaint alleges that defendant Hale 26 intercepted plaintiff’s emails and responded to him with antisemitic remarks. Plaintiff cites the 27 First, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution as the basis of his 28 claims, and seeks monetary damages, among other relief. (See ECF No. 1.) ] Claims for violations of an individual’s civil rights under the U.S. Constitution are 2 | brought under 42 U.S.C. § 1983 for actions taken under color of law. Gomez v. Toledo, 446 U.S. 3 || 635, 639 (1980). Generally speaking, such claims cannot not lie against a private individual or 4 || business entity that does not act under color of law. See Franklin v. Fox, 312 F.3d 423, 444 (9th 5 || Cir. 2002). Here, it appears defendant Hale is nothing more than a private citizen, and so 6 || plaintiff's complaint fails to state a claim on which relief may be granted. Naffe v. Frey, 789 7 || F.3d 1030, 1039 (9th Cir. 2015) “([A] bare claim of state action does not withstand a Rule 8 | 12(b)(6) motion.”). Given plaintiffs alleged factual scenario and state of the law under Section 9 || 1983, the court finds plaintiff unlikely to be able to cure the defects in the complaint. Thus, the 10 || court concludes that granting leave to amend on plaintiffs claims under the U.S. Constitution 11 | would be futile. Cahill, 80 F.3d at 339. 12 ORDER AND RECOMMENDATIONS 13 Accordingly, IT IS HEREBY ORDERED that plaintiff's IFP application is GRANTED. 14 Further, it is RECOMMENDED that: 15 1. The action be DISMISSED WITH PREJUDICE; and 16 2. The Clerk of Court be directed to CLOSE this case. 17 || These findings and recommendations are submitted to the United States District Judge assigned to 18 || the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after 19 || being served with these findings and recommendations, plaintiff may file written objections with 20 | the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 21 || Recommendations.” Plaintiffis advised that failure to file objections within the specified time 22 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 23 | (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 24 || Dated: November 7, 2022 Foci) Aharon 2% KENDALL J. NE wart1950 UNITED STATES MAGISTRATE JUDGE 27 28