Saddozai v. Esterheld ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, 11 Case No. 20-01279 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL v. 13 14 KRISTEN ESTERHELD, et al., 15 Defendants. 16 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed 20 in a separate order. 21 22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 1 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 2 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 3 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 elements: (1) that a right secured by the Constitution or laws of the United States was 5 violated, and (2) that the alleged violation was committed by a person acting under the 6 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 7 B. Plaintiff’s Claims 8 Plaintiff is suing the Daly City Police Department for their actions in connection 9 with his complaints of theft and fraud by his former girlfriend, Flora Sparks. Dkt. No. 1 at 10 4. He made these complaints on or about February 3, 2016, and an investigation was 11 begun. Id. at 4-5. Plaintiff claims that although he provided police with a description of 12 his stolen items and Ms. Spark’s known location, no arrest took place. Id. at 5. Plaintiff 13 claims that police “declined to make an arrest simply because Flora Sparks, and plaintiff… 14 were in a prior relationship.” Id. Plaintiff claims their inaction amounts to deliberate 15 indifference and that they should be held liable for damages that was a result of “willful or 16 wanton act,” which deprived him of his “property, obstruction of justice, denial of equal 17 protection and due process of the law, under the Fifth, and Fourteenth Amendment… and 18 protection of public safety by failing to arrest of those persons suspected of criminal 19 activity.” Id. at 7. He seeks injunctive and declaratory relief as well as damages. Id. at 20 10. 21 Plaintiff fails to state a claim for relief because he cannot satisfy either element for a 22 § 1983 claim, i.e., that a constitutional or federal right was violated. The Fifth and 23 Fourteenth Amendments protect citizens from the deprivation of life, liberty, or property 24 by the federal and state governments without due process of law. However, the loss of 25 property alleged in this action was not committed by the either the federal or state 26 government but by a private citizen, i.e., Plaintiff’s former girlfriend. As such, Plaintiff 1 |} person acting under the color of state law. The fact that the police decided to forego 2 || pursuing a criminal action against Ms. Sparks and recover Plaintiff's property for him does 3 |} not make them responsible for the original loss. Accordingly, the complaint must be 4 || dismissed for failure to state a claim for relief. See 28 U.S.C. § 1915A(b)(1), (2). Because 5 |} 1tis not factually possible for plaintiff to amend the complaint so as to cure this deficiency, 6 || the dismissal is without leave to amend. See Schmier v. United States Court of Appeals, 7 || 279 F.3d 817, 824 (9th Cir. 2002). 8 9 CONCLUSION 10 For the foregoing reasons, the complaint is DISMISSED with prejudice for failure 11 to state a claim for which relief can be granted. a 12 IT IS SO ORDERED. 13 || Dated: __June 30, 2020 fete Lown barney) 14 BETH LABSON FREEMAN United States District Judge 16 Z 18 19 20 21 22 23 24 25 Order of Dismissal PRO-SE\BLF\CR.20\01279Saddozai_dism(ftsac) 26 27