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Freeman v. Silver

United States District Court, D. Oregon

September 9, 2019

SHEIK FREEMAN, Plaintiff,
v.
ADAM JEROME SILVER, Defendant.

          FINDINGS AND RECOMMENDATION

          Jolie A. Russo United States Magistrate Judge.

         Pro se 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 dismissed.

         Under 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).

         Thus, 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).

         Here, 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).

         Thus, 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).

         In sum, 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”).

         RECOMMENDATION

         Plaintiff's 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 ...


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