Cota v. Atkinson ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 MICHAEL COTA, Case No. 3:21-cv-00432-MMD-CLB 7 Plaintiff, ORDER v. 8 KELLY ATKINSON, 9 Defendant. 10 11 I. SUMMARY 12 Pro se Plaintiff Michael Cota, who is incarcerated at Ely State Prison (“ESP”), brings 13 this action under 42 U.S.C. § 1983 against Defendant Kelly Atkinson, and has filed an 14 application to proceed in forma pauperis. (ECF Nos. 1-1 (“Complaint”), 4 (“IFP 15 Application”).) Before the Court is a Report and Recommendation (“R&R”) of United States 16 Magistrate Carla L. Baldwin (ECF No. 5), recommending the Court grant Cota’s IFP 17 Application, file the Complaint, and dismiss the Complaint with prejudice. Cota filed an 18 objection to the R&R. (ECF No. 6 (“Objection”).) As further explained below, the Court will 19 accept the R&R in full. 20 II. BACKGROUND 21 Cota argues that Defendant violated his Fourteenth Amendment rights to due 22 process and equal protection by interfering with his legal correspondence with his 23 attorney. (ECF No. 1-1 at 4-5.) Cota alleges that Defendant is a “rogue person” who 24 received filings from the Nevada Supreme Court which she was not authorized to receive. 25 (Id. at 5.) Cota includes as an exhibit attached to the Complaint his notice of appeal in a 26 criminal matter in state court, in which Defendant signed the certificate of service for the 27 notice of appeal, issued by Cota’s attorney. (ECF No. 1-1 at 14-15.) 28 Judge Baldwin recommends dismissal with prejudice because Defendant is not a 2 certificate of service indicates that Defendant signed for documents though she was not a 3 listed person authorized to receive them. (ECF No. 6. at 1.) Cota further argues that 4 Defendant is not a “private party” because a private party would not be intercepting his 5 legal documents. (Id. at 3.) 6 III. LEGAL STANDARD 7 This Court “may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 9 timely objects to a magistrate judge’s report and recommendation, then the Court is 10 required to “make a de novo determination of those portions of the [report and 11 recommendation] to which objection is made.” Id. The Court’s review is thus de novo 12 because Cota filed his Objection. (ECF No. 6 at 3.) 13 IV. DISCUSSION 14 To state a claim under § 1983, a plaintiff must allege (1) their civil rights were 15 violated (2) by a person acting under the color of state law. See West v. Atkins, 487 U.S. 16 42, 48 (1988). These requirements come from the nature of the statute, which aims to 17 protect individuals from “state actors” who are “using the badge of their authority to deprive 18 individuals of their federally guaranteed rights.” Anderson v. Warner, 451 F.3d 1063, 1067 19 (9th Cir. 2006) (citation omitted). The Fourteenth Amendment and § 1983 do not protect 20 individuals from “private conduct, ‘however discriminatory or wrongful.’” Jackson v. Metro. 21 Edison Co., 419 U.S. 345, 349 (1974) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). 22 However, even private parties may be liable under § 1983 if they act “under color 23 of state law.” See Conn v. Gabbert, 526 U.S. 286, 290 (1999). A person acts under the 24 color of state law when they “exercise[] power possessed by virtue of state law and made 25 possible only because the wrongdoer is clothed with the authority of state law.” West, 487 26 U.S. at 48. If the plaintiff wishes to bring a § 1983 suit against a private party, the court 27 must decide whether the alleged civil rights violation is “fairly attributable to the 28 [government].” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 2 act under color of state law when performing a lawyer’s traditional functions as counsel to 3 a defendant in a criminal proceeding.” Deleo v. Rudin, 382 F. Supp. 2d 1106, 1111 (D. 4 Nev. 2004); see also Miranda v. Clark Cnty., Nev., 319 F.3d 465, 468 (9th Cir. 2003) 5 (finding that attorneys who are acting in the traditional role of representing a client are not 6 state actors). 7 Cota argues that Defendant is a “rogue person,” not a state government official or 8 someone employed by the state. (ECF No. 1-1 at 5.) The Complaint therefore does not 9 allege that she is a state actor and, for the purposes of § 1983, Defendant is a ‘private 10 party.’ In order for Cota’s Complaint to proceed against Defendant, he must allege facts 11 that show that her actions are fairly attributable to the government. The Complaint does 12 not so allege. Instead, it appears that Defendant works with Cota’s attorney, and has 13 assisted Cota’s attorney in serving legal documents to the parties in his criminal case. 14 These actions are not fairly attributable to the government, and appear to be in line with 15 Cota’s attorneys normal scope of representing Cota in his criminal case. 16 Because Cota has failed to allege that Defendant was a state actor or a private 17 person who is otherwise acting under color of state law, he cannot bring a § 1983 lawsuit 18 against Defendant. The allegations in the Complaint therefore fail to a state a claim upon 19 which the Court can grant relief. Accordingly, the Court will dismiss the Complaint. As 20 amendment could not cure the defect in Cota’s Complaint, dismissal will be with prejudice 21 and without leave to amend. 22 V. CONCLUSION 23 The Court notes that the parties made several arguments and cited to several cases 24 not discussed above. The Court has reviewed these arguments and cases and determines 25 that they do not warrant discussion as they do not affect the outcome of the issues before 26 the Court. 27 It is therefore ordered that Cota’s objection (ECF No. 6) to the Report and 28 Recommendation of U.S. Magistrate Judge Carla L. Baldwin is overruled. The Court 1 || accepts the Report and Recommendation in its entirety. 2 It is further ordered that Cota’s application to proceed in forma pauperis (ECF No. 3 || 4) without having to prepay the full filing fee is granted. Cota is not required to pay an initial 4 || installment fee. Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 5 || 1915, as amended by the Prison Litigation Reform Act. The movant herein is permitted to 6 || maintain this action to conclusion without the necessity of prepayment of fees or costs or 7 || the giving of security therefor. 8 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison 9 || Litigation Reform Act, the Nevada Department of Corrections will forward payments from 10 || the account of Michael Cota, #1206075, to the Clerk of the United States District Court, 11 || District of Nevada, 20% of the preceding month's deposits (in months that the account 12 || exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of the 13 || Court will send a copy of this order to the Finance Division of the Clerk’s Office. The Clerk 14 || will send a copy of this order to the attention of Chief of Inmate Services for the Nevada 15 || Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 16 It is further ordered that, even if this action is dismissed, or is otherwise 17 || unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. §1915, as amended 18 || by the Prison Litigation Reform Act. 19 The Clerk of Court is directed to file the complaint (ECF No. 1-1). 20 It is further ordered that the complaint is dismissed with prejudice and without leave 21 || to amend. 22 The Clerk of Court is further directed to enter judgment accordingly and close this 23 || case. 24 DATED THIS 27" Day of December 2021. 25 —.. 27 IRIS 38 CHIEF UNITED STATES DISTRICT JUDGE