(PS) Pendarvis v. Elk Grove Self Help Housing Employees ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHARON D. PENDARVIS, No. 2:22-cv-0139-KJM-CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ELK GROVE SELF HELP HOUSING 15 EMPLOYEES, et al., 16 Defendants. 17 18 Plaintiff proceeds pro se and in forma pauperis. A second amended complaint filed on 19 April 25, 2022, is before the court for screening. This matter is referred to the undersigned by 20 Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 21 I. SCREENING AND PLEADING STANDARDS 22 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 23 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a 24 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 25 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 26 (2000). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 28 court accepts as true the factual allegations contained in the complaint, unless they are clearly 1 baseless or fanciful, and construes those allegations in the light most favorable to the plaintiff. 2 See Neitzke, 490 U.S. at 327; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 3 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011). 4 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines 5 v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory 6 allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council 7 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of 8 action does not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 9 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 10 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 11 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial 12 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 13 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A pro se 14 litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend 15 unless the complaint’s deficiencies could not be cured by amendment. See Noll v. Carlson, 809 16 F.2d 1446, 1448 (9th Cir. 1987) (explaining that a court should briefly explain a pro se litigant’s 17 pleading deficiencies when dismissing a complaint with leave to amend) (superseded on other 18 grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). 19 II. THE SECOND AMENDED COMPLAINT 20 The second amended complaint names as defendants Sacramento Self-Help Housing (Elk 21 Grove) and the Elk Grove Police Department.1 (ECF No. 7.) Plaintiff alleges as follows: “They 22 hid factual medical documentation and [plaintiff] had no defen[s]e wounds” and no proof from 23 them.” (Id. at 5.) “Like plaintiff never existed at 8528 Sun Sprite Way in Elk Grove, CA. To 24 withhold evidence/destroy is illegal.” (Id.) 25 1 Sacramento Self Help Housing is a 501(c)(3) nonprofit that assists individuals and families who 26 have insufficient resources for adequate housing. See https://sacselfhelp.org/about-us.html, last 27 visited February 14, 2022. In the original complaint filed on January 24, 2022, plaintiff alleged she received services from Sacramento Self Help Housing in 2019 and moved into a residence on 28 November 4, 2019. (See ECF No. 1 at 5.) 1 Attached to the second amended complaint are police reports reflecting statements by 2 plaintiff about an alleged assault by Valynda that took place in 2020. (ECF No. 7 at 10, 17.) 3 Plaintiff has also attached medical records. (Id. at 21-104.) For relief, plaintiff seeks “a place to 4 live on SSI.” (Id. at 6.) 5 III. THE COMPLAINT MUST BE DISMISSED 6 A. Failure to State a Claim under 42 U.S.C. § 1983 7 As set forth in the court’s prior screening orders of February 15, 2022 (ECF No. 4) and 8 March 30, 2022 (ECF No. 6), plaintiff has not alleged a violation of her constitutional rights or 9 federal law so as to state a claim under 42 U.S.C. § 1983. See West v. Atkins, 487 U.S. 42, 48 10 (1988); Albright v. Oliver, 510 U.S. 266, 271 (1994) (“Section 1983 ‘is not itself a source of 11 substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere 12 conferred.’”) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)). 13 The factual allegations in the second amended complaint remain difficult to discern. 14 However, the court can infer plaintiff seeks to hold Sacramento Self Help Housing liable for 15 plaintiff’s physical injuries caused by Valynda, a private actor and former friend or neighbor of 16 plaintiff, and/or for other incidents. 17 Local government municipalities and private entities acting under color of state law2 may 18 be liable for a constitutional injury caused by employees acting pursuant to the municipality’s 19 policy or custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). However, 20 plaintiff does not allege the harm was caused by either defendant’s policy or custom. Moreover, 21 the general rule is that governments and private entities acting under color of state law are not 22 liable for failing to protect private citizens from the acts of third parties. Escamilla v. City of 23 Santa Ana, 796 F.2d 266, 270 (9th Cir. 1986); see also Cunningham v. Gates, 229 F.3d 1271, 24 1289 (9th Cir. 2000). Plaintiff does not plausibly allege defendants created a danger that caused 25 26 2 It is unclear whether Sacramento Self Help Housing, a 501(c)(3) nonprofit, acts under color of 27 state law. See Pasadena Republican Club v. W. Just. Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (whether a nominally private person or corporation acts under color of state law is a “fact-bound 28 inquiry” for which the Supreme Court has developed four different applicable tests). 1 or enhanced her alleged injuries such that either defendant could be liable under section 1983. 2 Accordingly, the second amended complaint fails to state a claim under 42 U.S.C. § 1983. 3 B. Lack of Jurisdiction 4 Federal courts are courts of limited jurisdiction and can only adjudicate those cases which 5 the United States Constitution and Congress authorize the courts to adjudicate. Kokkonen v. 6 Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The presumption is that federal courts lack 7 subject matter jurisdiction over civil actions, and the burden to establish the contrary rests upon 8 the party asserting jurisdiction. Id. 9 Because the second amended complaint fails to state a claim under 42 U.S.C. § 1983, 10 federal question jurisdiction is not established at this time. See 28 U.S.C. § 1331. Diversity 11 jurisdiction does not exist because all parties are in the State of California. See 28 U.S.C. § 12 1332(a); Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006). Thus, it 13 appears the court lacks jurisdiction over this matter. 14 C. No Further Leave to Amend 15 “Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and 16 futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th 17 Cir. 1988). Leave to amend shall be freely given, but the court does not have to allow futile 18 amendments. Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 19 (9th Cir. 1983). Plaintiff has had two opportunities to amend, has not been able to state a claim, 20 and it clearly appears no cognizable claim can be stated on the underlying facts alleged. The 21 undersigned concludes further leave to amend would be futile. 22 IV. CONCLUSION AND ORDER 23 In accordance with the above, IT IS RECOMMENDED: 24 1. Plaintiff’s second amended complaint (ECF No. 7) be dismissed without leave to 25 amend for failure to state a claim; and 26 2. The Clerk of Court be directed to close this case. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 4 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 5 || Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 | Dated: May 12, 2022 / hice ANKE) flo CAROLYNK.DELANEY 4 8 UNITED STATES MAGISTRATE JUDGE 9 | 8 Pendarvis.22cv139.screen2ac.ft 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28