United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
A. Russo United States Magistrate Judge.
plaintiff Sheik Freeman, proceeding in forma
pauperis, brings this action against Adam Jerome Silver.
On August 27, 2019, the Court dismissed plaintiff's
complaint pursuant to 28 U.S.C. § 1915(e). At that time,
the Court instructed plaintiff to file an amended pleading
establishing subject matter jurisdiction and otherwise
complying with Fed.R.Civ.P. 8(a), or face dismissal of this
action with prejudice. For the reasons stated herein,
plaintiff's amended complaint fails to state a claim upon
which relief may be granted, such that this case should be
28 U.S.C. § 1915(e), the district court must dismiss an
in forma pauperis complaint, either sua sponte or
pursuant to an opposing party's motion, if it “is
frivolous or malicious, ” or “fails to state a
claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc).
to avoid dismissal under 28 U.S.C. § 1915(e), the
“complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While the plaintiff need not detail all
factual allegations, the complaint must provide “more
than labels and conclusions.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To state a plausible
claim for relief, the complaint “must contain
sufficient allegations of underlying facts” to support
its legal conclusions. Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). Pro se plaintiffs do not have the
benefit of legal counsel; their pleadings are therefore
“held to less stringent standards” than pleadings
drafted by lawyers. Florer v. Congregation Pidyon
Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011).
plaintiff's amended pleadings fail to confer subject
matter jurisdiction. Federal courts are courts of limited
jurisdiction, such that the plaintiff generally must allege
the existence of diversity jurisdiction under 28 U.S.C.
§ 1332 or federal question jurisdiction under 28 U.S.C.
§ 1331. The amended complaint indicates the existence of
federal question jurisdiction based on unspecified
constitutional violations, but the sole defendant is a
security guard at a private, nonprofit medical facility. Am.
Compl. pgs. 2-4 (doc. 6).
plaintiff does not allege the requisite government action. As
this Court previously explained, the Constitution's
guarantees ordinarily do not apply to the conduct of private
individuals. Edmonson v. Leesville Concrete Co.,
Inc., 500 U.S. 614, 619-20 (1991). Because there are no
facts to suggest that defendant's allegedly wrongful
actions can be “fairly attributable to the government,
” plaintiff cannot state a claim under either 42 U.S.C.
§ 1983 or Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). Kirtley v. Rainey, 326 F.3d
1088, 1092 (9th Cir. 2003); see also Frank v.
Cascade Healthcare Cmty., Inc., 2013 WL 867387, *21-24
(D. Or. Mar. 6, 2013), aff'd, 688 Fed.Appx. 461
(9th Cir. 2017) (discussing the various criteria to identify
state action where the defendants were employees of a private
medical facility); Johnston v. Johnson, 2016 WL
10650815, *2 (D. Or. Nov. 1, 2016), adopted by 2017
WL 6025341 (D. Or. Jan. 18, 2017) (dismissing an amended IFP
complaint with prejudice under analogous circumstances).
the amended complaint does not contain facts sufficient to
raise a federal question. Rather, plaintiff's amended
allegations continue to suggest that this matter is a private
dispute arising under state law between two Oregon residents.
Am. Compl. pgs. 1-4 (doc. 6). As a result, it does not appear
as though plaintiff can cure the complaint's
deficiencies, such that dismissal without leave to amend is
warranted. See Jackson v. Carey, 353 F.3d
750, 758 (9th Cir. 2003) (dismissal without leave to amend is
appropriate where “it is clear that the complaint could
not be saved by any amendment”).
amended complaint (doc. 6) should be dismissed with
prejudice. This recommendation is not an order that is
immediately appealable to the Ninth Circuit Court of Appeals.
Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules
of Appellate Procedure, should not be filed until entry of
the district court's judgment or appealable order. The
parties shall have fourteen (14) days from the date of
service of a copy of this recommendation within which to file
specific written objections with the court. Thereafter, the
parties shall have fourteen (14) days within which to file a
response to the objections. Failure to timely file objections
to any factual determination of the Magistrate Judge will be
considered as a waiver of a party's right to de ...