-BAM (PC) Ari v. Amp'D Service Center et al, No. 1:2010cv01134 - Document 13 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissing Action, without Prejudice, for Failure to State a Claim 1 , signed by Magistrate Judge Barbara A. McAuliffe on 11/1/11. Referred to Judge O'Neill. (Verduzco, M)

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-BAM (PC) Ari v. Amp'D Service Center et al Doc. 13 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROXANNE ARI, 10 Plaintiff, 11 12 CASE NO. 1:10-cv-01134-LJO-BAM PC v. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO STATE A CLAIM AMP’D SERVICE CENTER, et al., (ECF No. 1) 13 Defendants. / OBJECTIONS DUE WITHIN THIRTY DAYS 14 15 I. Screening Requirement 16 Plaintiff Roxanne Ari (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 17 in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, 18 filed June 23, 2010. (ECF No. 1.) 19 The Court is required to screen complaints brought by prisoners seeking relief against a 20 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 21 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 22 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 23 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 24 In determining whether a complaint states a claim, the Court looks to the pleading standard 25 under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and 26 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 27 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it 28 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 1 Dockets.Justia.com 1 Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 2 544, 555, 127 S. Ct. 1955 (2007)). 3 Under section 1983, Plaintiff must demonstrate that each defendant personally participated 4 in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires 5 the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. 6 at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that] 7 pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line 8 between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting 9 Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations 10 contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129 11 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555). 13 II. Discussion 14 Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and 15 is incarcerated at the Central California Women’s Facility. The complaint is brought against 16 Defendants AMP’D Service Center and Access Securepak alleging that a compact disc player which 17 Plaintiff ordered was defective when she received it. After returning the compact disc player, 18 Plaintiff wrote two letters to Defendant AMP’D Service Center requesting that they send her a 19 working compact disc player and she has never received one. 20 Liability under section 1983 exists where a defendant “acting under the color of law” has 21 deprived the plaintiff “of a right secured by the Constitution or laws of the United States.” Jensen 22 v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000). “The United States Constitution protects 23 individual rights only from government action, not from private action.” Single Moms, Inc. v. 24 Montana Power Co., 331 F.3d 743, 746 (9th Cir. 2003) (emphasis in original). “Only when the 25 government is responsible for a plaintiff’s complaints are individual constitutional rights implicated.” 26 Single Moms, Inc., 331 F.3d at 746-47 (citing Brentwood Academy v. Tennessee Secondary School 27 Athletic Assoc., 531 U.S. 288, 295, 121 S. Ct. 924, 930 (2001)) (emphasis in original). 28 Plaintiff’s complaint is devoid of any factual allegations against Defendant Access Securepak 2 1 and the allegation that Defendant AMP’D has not sent her a replacement compact disc player does 2 not allege acts by any person “acting under the color of law” and does not state a cognizable claim 3 under section 1983. See Rivera v. Green, 775 F.2d 1381, 1384 (9th Cir. 1985). 4 III. Conclusion and Recommendation 5 The Court finds that Plaintiff’s complaint fails to state any claims upon which relief can be 6 granted under § 1983 against any named defendant. Under Rule 15(a) of the Federal Rules of Civil 7 Procedure, leave to amend ‘shall be freely given when justice so requires.’” In addition, “[l]eave to 8 amend should be granted if it appears at all possible that the plaintiff can correct the defect.” Lopez 9 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal citations omitted). However, in this action 10 Plaintiff suit against private parties is insufficient to state a claim under § 1983. The Court finds that 11 the deficiencies outlined above are not capable of being cured by amendment, and therefore further 12 leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 13 1446, 1448-49 (9th Cir. 1987). 14 Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that this action 15 be dismissed in its entirety, without leave to amend, for failure to state a claim upon which relief can 16 be granted. 17 These findings and recommendations will be submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 19 days after being served with these findings and recommendations, Plaintiff may file written 20 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 21 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 22 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 23 1153 (9th Cir. 1991). 24 25 IT IS SO ORDERED. Dated: 10c20k November 1, 2011 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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