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Morris v. Hagen

United States District Court, Ninth Circuit

September 18, 2013

AUTUMN MORRIS, and DOROTHY MORRIS Plaintiffs,
v.
WAYNE HAGEN, et al. Defendants.

FINDING AND RECOMMENDATION

THOMAS M. COFFIN, Magistrate Judge.

Plaintiffs' complaint contains allegations against a number of defendants, all of which relate to the placing of plaintiff Autumn Morris' child ["KM"] into state custody.

The following motions are before the court:

1. Dorothy Morris has filed a "Motion to Amend and Add More" (#57). Plaintiff's motion is allowed to the extent that the court will consider the matters submitted in the document filed by plaintiff and the exhibits thereto, and denied to the extent that plaintiff seeks to allege additional claims or add additional defendants. For the reasons set forth below, an amendment adding new claims or defendants would be futile.

2. Defendants Rains and Huskey move to dismiss plaintiffs' claims against them for failure to state a claim (#37).

Defendants Rains and Huskey are City of Sutherlin police officers. Plaintiffs allege that on February 3, 2012, defendant Huskey illegally entered the home of Edwinda Dowell searching for KM and discovered KM was not inside the residence.

Edwina Dowell is not a party to this action and defendant Huskey's alleged conduct towards her does not give rise to a claim by plaintiffs.

Plaintiffs allege that on February 3, 2012, defendant Rains "went to the plaintiffs' residence... and discovered no one was at the residents." (Sic) Complaint (#3) p. 4.

The fact that defendant Rains went to plaintiffs' empty residence is insufficient to establish that he violated the plaintiffs' rights.

Even a most liberal construction of plaintiff's factual allegations fail to support a cognizable claim against either defendant Rains or Husky. Defendants' Rains and Husky's Motion to Dismiss (#37) should be allowed.

3. Defendant Griffin moves to dismiss plaintiffs' claims against him for failure to state a claim. (#43).

Defendant Griffin is an attorney alleged to have "appeared on behalf of the plaintiff" at a court hearing. Complaint (#3) p. 5. Plaintiffs further allege that Griffin "conspired to deprive, acted in concert to deprive and did deprive the plaintiff of her parental right to care, management, custody and control" of KM. Id . p. 3.

To state a claim under 42 U.S.C. 1983, a plaintiff must allege facts that establish (1) the defendants acting under the color of state law (2) deprived plaintiff of rights secured by the constitution or federal statutes. Adickes v. S.H. Kress & Co. , 398 U.S. 144 (1970); Crumpton v Gates , 947 F.2d 1418, 1420 (9th Cir. 1991); Gibson v. United States , 781 F.2d 1334, 1338 (9th Cir. 1986). A person acts under color of state law only when exercising power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic , 313 U.S. 299 (1941); see also, Lugar v. Edmondson Oil Co. , 457 U.S. 922 (1980).

Generally, private parties do not act under color of state law. Price v. Hawaii , 939 F.2d 702 (9th Cir. 1991). Specifically, attorneys do not act under the color of state law when performing advocacy functions. Polk County v. Dodson , 454 U.S. 312, 325 (1981); Koenig v. Snead , 757 F.Supp. 41, 42 (D. Or. 1991). "Action taken by a private individual may be under color of state law' where there is significant' state involvement in the action." Howerton v. Gabica , 708 F.2d 380, 382 (9th Cir. 1983). "The [Supreme] Court has articulated a number of tests or factors to determine when state action is 'significant.'" Id., at 382-383 (collecting cases). Under the joint action test, a private party acts under color of state law if "he is a wilful participant in joint action with the state or its agents." Dennis v. Sparks , 449 U.S. 24, 27 (1980). Under the governmental nexus test, a private party acts under color of state law if "there is ...


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