Vela v. ATT ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 PASTOR ISABEL VELA, Case No. 1:23-cv-01628-JLT-SKO 10 Plaintiff, FINDINGS AND RECOMMENDATION THAT THE CASE BE DISMISSED FOR 11 v. FAILURE TO STATE A CLAIM 12 ATT, (Docs. 5 & 6) 13 Defendant. FOURTEEN-DAY DEADLINE 14 15 16 Plaintiff Pastor Isabel Vela, proceeding pro se and in forma pauperis in this action, filed a 17 civil complaint on November 20, 2023. (Doc. 1). On January 16, 2024, the undersigned screened 18 the complaint, found that it failed to state any cognizable claims, and granted Plaintiff thirty days 19 leave to file an amended complaint curing the pleading deficiencies identified in the order. (Doc. 20 5.) 21 On January 31, 2024, Plaintiff filed an amended complaint, which is before the Court for 22 screening. (Doc. 6.) After screening Plaintiff’s amended complaint, the Court finds that despite 23 the explicit recitation of the deficiencies of the original complaint, Plaintiff has failed to plead any 24 cognizable claims. Accordingly, the Court RECOMMENDS that Plaintiff’s amended complaint 25 be DISMISSED without leave to amend. 26 I. SCREENING REQUIREMENT 27 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 28 1 each case and shall dismiss the case at any time if the Court determines that the allegation of poverty 2 is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which 3 relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 4 28 U.S.C. § 1915(e)(2); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district 5 court has discretion to dismiss in forma pauperis complaint); Barren v. Harrington, 152 F.3d 1193 6 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). If the Court determines 7 that a complaint fails to state a claim, leave to amend may be granted to the extent that the 8 deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 9 (9th Cir. 2000) (en banc). 10 In determining whether a complaint fails to state a claim, the Court uses the same pleading 11 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and 12 plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 13 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 15 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A 16 complaint may be dismissed as a matter of law for failure to state a claim based on (1) the lack of 17 a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri 18 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). The plaintiff must allege a minimum 19 factual and legal basis for each claim that is sufficient to give each defendant fair notice of what 20 the plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep’t of 21 Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 22 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept 23 as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 24 (2007). The Court, however, need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. 25 at 678. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it 26 stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting 27 Twombly, 550 U.S. at 557) (internal quotation marks omitted). 28 1 II. DISCUSSION 2 A. Plaintiff’s Allegations 3 Plaintiff alleges that Defendant “ATT,” which the Court construes as the 4 telecommunications company AT&T, engaged in “civil rights violations and improper business 5 practices.” (Doc. 6 at 7.) She claims that when she signed a service contract with Defendant in 6 2018, she was not notified of Defendant’s participation in the “Stellar Wind Program.” (Id. at 8.) 7 Plaintiff alleges that program “involved warrantless surveillance of communications and the 8 collection of metadata.” (Id.) Plaintiff also alleges that Defendant made “unauthorized changes” 9 to her account resulting in “excessive fees,” and that she was “locked and forced into [a] contract” 10 that “led to [her] account being past due and unable to pay.” (Id. at 9, 10.) Plaintiff purports to 11 bring claims for violations of the First, Fourth, and Ninth Amendments to the U.S. Constitution, 12 the Clayton Act, “bait and switch,” and the “Freedom of Religion.” (Id. at 3, 8–10.) 13 B. Plaintiff Fails to State a Cognizable Claim 14 1. Plaintiff Fails to Plead a Civil Rights Violation 15 Plaintiff alleges violations of the First (which encompasses the “Freedom of Religion”), 16 Fourth, and Ninth Amendments to the U.S. Constitution. A litigant who complains of a violation 17 of a constitutional right does not have a cause of action directly under the United States 18 Constitution. Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (affirming that it is 42 U.S.C. § 1983 19 that provides a federal cause of action for the deprivation of rights secured by the United States 20 Constitution); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) (explaining that 21 42 U.S.C. § 1983 was enacted to create a private cause of action for violations of the United States 22 Constitution); Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) 23 (“Plaintiff has no cause of action directly under the United States Constitution.”). 24 To state a claim under 42 U.S.C. § 1983 (“Section 1983”), a plaintiff must allege that the 25 defendant (1) acted under color of state law, and (2) deprived them of rights secured by the 26 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 27 see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color 28 of state law”). With regard to the first element, private parties are not generally acting under color 1 of state law for the purposes of Section 1983. Price v. Hawaii, 939 F.2d 702, 707–08 (9th Cir. 2 1991) (“Careful adherence to the ‘state action’ requirement preserves an area of individual freedom 3 by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, 4 its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.”) 5 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 936–37 (1982)). There exist, however, some 6 circumstances in which the actions of a private actor may render that actor liable under section 7 1983. Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 954 (9th Cir. 2008) (en banc). 8 Specifically, a plaintiff must show that “the conduct allegedly causing the deprivation of a federal 9 right [was] fairly attributable to the State.” Lugar, 457 U.S. at 937. 10 Here, Defendant AT&T is a private party, and Plaintiff fails to allege facts to support a 11 finding that Defendant has acted such that their conduct is fairly attributable to the government. 12 Accordingly, Plaintiff has failed to state a cognizable Section 1983 claim. 1 13 2. Plaintiff Has Not Stated a Claim Under the Clayton Act 14 The Clayton Act authorizes a private individual to bring suit under the antitrust laws if that 15 individual has been “injured in his business or property by reason of anything forbidden in the 16 antitrust laws.” 15 U.S.C. § 15. Only individuals who possess antitrust standing by virtue of having 17 suffered such injury may sue to redress an antitrust violation. Associated General Contractors of 18 California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 529–535 (1983); see also 19 Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 103, 113 (1986) (“a private plaintiff must allege 20 threatened loss or damage ‘of the type the antitrust laws were designed to prevent and that flows 21 from that which makes defendants’ acts unlawful.’”) (citing Brunswick Corp. v. Pueblo Bowl-O- 22 Mat, Inc., 429 U.S. 477, 497 (1977)). 23 24 1 As set forth above, Plaintiff alleges a claim for relief for violation of the Ninth Amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by 25 the people.” U.S. Const., amend. IX. The Ninth Amendment does not provide a basis upon which Plaintiff may impose liability under § 1983 because it does not “independently [secure] any constitutional rights. . . .” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (citations omitted); Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 26 1029 (9th Cir. 2002) (Ninth Amendment claim properly dismissed because plaintiffs may not “ ‘double up’ constitutional claims), aff’d sub nom. Groh v. Ramirez, 540 U.S. 551 (2004); Schowengerdt v. United States, 944 F.2d 27 483, 490 (9th Cir. 1991) (Ninth Amendment “not interpreted as independently securing any constitutional rights for purposes of making out a constitutional claim.”). Accordingly, a Section 1983 claim predicated on a violation of the 28 Ninth Amendment is not cognizable. 1 To show antitrust injury, 2 a plaintiff must prove that his loss flows from an anticompetitive aspect or effect of the defendant’s behavior, since it is inimical to the antitrust laws to award 3 damages for losses stemming from acts that do not hurt competition. If the injury 4 flows from aspects of the defendant’s conduct that are beneficial or neutral to competition, there is no antitrust injury, even if the defendant’s conduct is illegal 5 per se. 6 Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995) (citing Atl. Richfield Co. v. 7 USA Petroleum, Inc., 495 U.S. 328, 334 (1990)) (private suit brought under Section 4 of the 8 Clayton Act). The losses alleged by Plaintiff are (1) excessive fees and (2) mental and emotional 9 duress. These alleged losses do not hurt competition and are not antitrust injuries. Plaintiff does 10 not state a claim under the Clayton Act. 11 3. The Amended Complaint Does Not Comply With Rule 9(b) 12 Plaintiff purports to allege a claim for “bait and switch,” which the Court construes as a 13 claim sounding in fraud. (See Doc. 6 at 10.) Under California law, the “elements of fraud are: (1) 14 a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity 15 (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting 16 damages. Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.4th 979, 990 (2004). Federal Rule 17 of Civil Procedure 9(b) requires that, when a plaintiff alleges fraud, the circumstances constituting 18 the alleged fraud must be “specific enough to give defendants notice of the particular misconduct . 19 . . so that they can defend against the charge and not just deny that they have done anything wrong.” 20 Although the substantive elements of fraud are established by state law, a plaintiff must plead the 21 elements in accordance with the requirements of Rule 9(b). See Vess v. Ciba–Geigy Corp., USA, 22 317 F.3d 1097, 1103 (9th Cir. 2003). Allegations of fraud should specifically include “an account 23 of the time, place, and specific content of the false representations as well as the identities of the 24 parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). “The 25 plaintiff must set forth what is false or misleading about a statement, and why it is false.” Vess, 26 317 F.3d at 1106. In other words, a plaintiff must allege facts establishing “the who, what, when, 27 where, and how” of the fraud. Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). 28 Like her prior complaint, Plaintiff’s amended complaint does not meet this heightened pleading 1 standard. 2 C. Leave to Amend is Not Recommended 3 When dismissing a complaint, the Ninth Circuit has stated that “leave to amend should be 4 granted unless the district court determines that the pleading could not possibly be cured by the 5 allegation of other facts.” Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal 6 quotation marks omitted); Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. (9th Cir. 1996). However, 7 once the court has already granted a plaintiff leave to amend a complaint, the court’s discretion in 8 determining whether to allow additional opportunities to amend is particularly broad. Sateriale v. 9 R.J. Reynolds Tobacco Co., 697 F.3d 777, 794 (9th Cir. 2012) (quoting Miller v. Yokohama Tire 10 Corp., 358 F.3d 616,622 (9th Cir.2 004)); Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th 11 Cir. 2002). 12 Further amendment is not appropriate in this case. When dismissing the initial complaint, 13 the undersigned advised Plaintiff could file an amended complaint if she believed that she could 14 set forth a basis for subject matter jurisdiction and allege cognizable claims. (See Doc. 5 at 4.) 15 Plaintiff has repeatedly demonstrated that she is unable to marshal facts sufficient to constitute a 16 cognizable claim and that the addition of more detailed factual allegations or revision of Plaintiff’s 17 claims will not cure the defects of her amended complaint. Thus, the undersigned declines to give 18 any further leave to amend and recommends that the action be dismissed. 19 III. CONCLUSION AND RECOMMENDATION 20 Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s amended complaint (Doc. 21 6) be DISMISSED without leave to amend. 22 These findings and recommendations are submitted to the district judge assigned to this 23 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 24 (14) days of service of this recommendation, any party may file written objections to these findings 25 and recommendation with the Court and serve a copy on all parties. The document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The district judge 27 will review the magistrate judge’s findings and recommendation pursuant to 28 U.S.C. § 28 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 1 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 2 IT IS SO ORDERED. 3 4 Dated: February 8, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28