Acord v. Champions Recovery Alternatives et al, No. 1:2017cv01145 - Document 8 (E.D. Cal. 2018)
Court Description: FIndings and Recommendations that this case be dismissed, with prejudice, for failure to state a claim, failure to prosecute, and failure to comply with court order, signed by Magistrate Judge Erica P. Grosjean on 5/7/2018. Matter referred to Judge O'Neill. Objections to F&R due by 6/1/2018. (Rosales, O)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ACORD, 12 13 Plaintiff, v. 14 15 CHAMPIONS RECOVERY ALTERNATIVES, et al. 16 Defendants. 17 FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, FAILURE TO PROSECUTE, AND FAILURE TO COMPLY WITH COURT ORDER (ECF No. 1) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE (21) DAYS 18 19 Case No. 1:17-cv-01145-LJO-EPG On August 25, 2017, Richard Acord (“Plaintiff”), appearing pro se and in forma pauperis, 20 commenced this action pursuant to 42 U.S.C. § 1983 by the filing of a Complaint. (ECF No. 1). 21 The Complaint alleges that Defendants Champions Recovery Alternatives, Maria Stevens, Randy 22 Hano, and Coven Hardcastle breached their contractual, legal, and moral obligation to maintain 23 Plaintiff’s confidentiality. 24 On January 30, 2018, the Court screened the Complaint and determined that it fails to 25 state any cognizable claims. (ECF No. 7). Specifically, the Court concluded that Plaintiff failed to 26 allege that Defendants are state actors or acted under the direction of or in cooperation with any 27 state actor. Id. 28 1 1 The screening order directed Plaintiff to file an amended complaint or notify the Court 2 that he wishes to stand on the Complaint, subject to the issuance of findings and 3 recommendations to the assigned district judge, within thirty days of service of the order. Id. The 4 Court also warned Plaintiff that failure to file an amended complaint or to notify the court that he 5 wishes to stand on the Complaint could result in the dismissal of this case. Id. 6 The thirty-day period has expired, and Plaintiff has not filed an amended complaint or 7 notified the Court that he wishes to stand on the Complaint. Accordingly, the Court recommends 8 that this action be dismissed, with prejudice, for failure to state a claim, failure to prosecute, and 9 failure to comply with a court order. Plaintiff may file objections within twenty-one days from 10 11 12 the date of service of these findings and recommendations. I. SCREENING REQUIREMENT Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of an in forma pauperis 13 complaint to determine whether it “state[s] a claim on which relief may be granted,” is “frivolous 14 or malicious,” or “seek[s] monetary relief against a defendant who is immune from such relief.” If 15 the Court determines that the complaint fails to state a claim, it must dismiss the complaint. Id. 16 Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured 17 by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 18 A complaint must contain “a short and plain statement of the claim showing that the 19 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 20 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 22 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 23 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 24 at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 25 conclusions are not. Id. at 678. 26 In determining whether a complaint states an actionable claim, the Court must accept the 27 allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 28 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. 2 1 Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins 2 v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less 3 stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 4 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after 5 Iqbal). 6 7 II. PLAINTIFF’S ALLEGATIONS Plaintiff alleges that in July and August 2016, he was a client of Champions Recovery 8 Alternatives’ Samuels’ House Residential Treatment Program and a client of the other 9 Defendants. Defendants have a contractual, legal, and moral obligation to maintain client 10 confidentiality, even after clients are discharged from their treatment programs, unless 11 information about the client becomes public through the filing of a criminal complaint. 12 Plaintiff was discharged from the treatment program without warning, and without an 13 opportunity to defend himself, when he was allegedly involved in an incident with a female staff 14 member of Samuels’ House. No charges were brought against Plaintiff for the alleged incident. 15 Plaintiff was, however, on house arrest through the “Kings County E.M.S. System” and was 16 returned to custody due to his discharge from Samuels’ House. 17 During the booking process, Plaintiff called Robert Jeffries, a resident of Samuels’ House, 18 who said, “Don’t worry brother, I’m going to squash that bullshit.” This, Plaintiff alleges, serves 19 as evidence that Defendants breached their duty of client confidentiality almost immediately upon 20 his removal from Samuels’ House by Kings County E.M.S. officers. During the booking process, 21 Plaintiff was also approached by Kings County Jail Classification staff regarding concerns for his 22 safety in the jail population due to the nature of the alleged incident at Samuels’ House. This, 23 Plaintiff alleges, serves as evidence that Kings County Jail had knowledge of Plaintiff’s phone 24 call with Mr. Jeffries, or that Samuels’ House breached their duty of client confidentiality. 25 Plaintiff further alleges that he has had to answer numerous allegations and accusations in 26 person and on social media regarding his alleged behavior in the fourteen months since his 27 discharge from Samuels’ House. He has been threatened numerous times due to the allegations 28 made against him at Samuels’ House. Plaintiff was returned to the custody of Kings County Jail 3 1 on an unrelated matter on June 22, 2017. He has been physically assaulted by multiple inmates as 2 a direct result of his discharge from Samuels’ House. Plaintiff believes there can be no other 3 explanation for the accusations, threats, and assault he has incurred, other than Samuels’ House’s 4 breach of client confidentiality. 5 III. 6 7 DISCUSSION A. Section 1983 Liability To state a claim under § 1983, a plaintiff “must allege a violation of a right secured by the 8 Constitution and laws of the United States, and must show that the alleged deprivation was 9 committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) 10 (emphasis added). Private parties are not generally acting under color of state law for the 11 purposes of § 1983. Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (“Careful adherence to 12 the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of 13 federal law and federal judicial power. It also avoids imposing on the State, its agencies or 14 officials, responsibility for conduct for which they cannot fairly be blamed”). 15 Nevertheless, in some circumstances, the actions of a private actor may render them liable 16 under § 1983. Under the “public function test,” private individuals or entities may be deemed 17 state actors for purposes of § 1983 when they perform a public function that has been 18 “traditionally the exclusive prerogative of the State.” Rendell–Baker v. Kohn, 457 U.S. 830, 842 19 (1982) (citations and quotation marks omitted; emphasis in original). “That a private entity 20 performs a function which serves the public does not make its acts state action.” Id. 21 Under the joint action test, a private individual may be liable as a state actor under § 1983 22 if he or she was part of a conspiracy or was a “willful participant in [other] joint action” with a 23 state actor that caused the constitutional violation. Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 24 2002). “To prove a conspiracy between private parties and the government under § 1983, an 25 agreement or ‘meeting of the minds’ to violate constitutional rights must be shown.” Fonda v. 26 Gray, 707 F.2d 435, 438 (9th Cir. 1983). “To be liable as a co-conspirator, a private defendant 27 must share with the public entity the goal of violating a plaintiff’s constitutional rights.” Franklin 28 v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). “The Ninth Circuit requires a ‘substantial degree of 4 1 cooperation’ between the government and a private citizen before finding such a conspiracy.” 2 Annan-Yartey v. Honolulu Police Dep’t, 475 F.Supp.2d 1041, 1046 (D. Haw. 2007)(quoting 3 Franklin, 312 F.3d at 445). 4 Plaintiff alleges that Defendants caused severe damage to his name, reputation, and 5 standing in his community by violating his right to client confidentiality. Defendants do not 6 appear to be governmental entities or officers or employees of a governmental entity. 7 Furthermore, Plaintiff does not allege that Defendants undertook any action under the direction of 8 or in cooperation with any state actor. Thus, Plaintiff fails to state a cognizable claim under § 9 1983. 10 B. Failure to Prosecute and to Comply with a Court Order 11 Plaintiff has failed to comply with the screening order, which directed him to file an 12 amended complaint or notify the Court that he wishes to stand on the Complaint within thirty 13 days of its service. (ECF No. 7). The order was served on January 30, 2018. Id. Plaintiff has 14 failed to timely file an amended complaint, and has not otherwise prosecuted this action. 15 Courts may impose sanctions, including dismissal, as part of their inherent power “to 16 manage their own affairs so as to achieve the orderly and expeditious disposition of cases” or 17 based on a failure to comply with court orders. Chambers v. NASCO, Inc., 501 U.S. 32, 43 18 (1991); Pagtalunan v. Galazza, 291 F.3d 639, 642 (9th Cir. 2002). A court may dismiss an action 19 based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply 20 with local rules. Fed. R. Civ. P. 41(b); L.R. 110; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) 21 (citing United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)) (dismissal for noncompliance 22 with local rule); Malone v. United States Postal Serv., 833 F.2d 128, 134 (9th Cir. 1987) 23 (dismissal for failure to comply with court order). 24 “In determining whether to dismiss [an action] for failure to prosecute or failure to comply 25 with a court order, the Court must weigh the following factors: (1) the public=s interest in 26 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 27 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 28 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 5 1 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). First, the public’s interest in expeditious resolution of litigation and the court’s need to 2 3 manage its docket always favor dismissal. Id. (quoting Yourish v. California Amplifier, 191 F.3d 4 983, 990 (9th Cir. 1999)). Thus, these factors weigh in favor of dismissal. 5 6 Second, the public policy favoring disposition on the merits always weighs against dismissal. Id. Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 7 8 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay 9 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 10 id. at 643, and it is Plaintiff’s failure to file an amended complaint or to notify the Court that he 11 wishes to stand on the Complaint that is causing delay. The Court found that the Complaint fails 12 to state a claim over three months ago. The case is now stalled until Plaintiff files an amended 13 complaint or notifies the Court that he wishes to stand on the Complaint. Therefore, the third 14 factor weighs in favor of dismissal. 15 As for the availability of lesser sanctions, at this stage in the proceedings there is little 16 available to the Court that would constitute a satisfactory lesser sanction while protecting the 17 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of 18 little use, considering Plaintiff’s in forma pauperis status, and given the stage of these 19 proceedings, the preclusion of evidence or witnesses is not available. 20 Thus, after weighing the factors, the Court finds that dismissal with prejudice is 21 appropriate. 22 IV. CONCLUSION AND RECOMMENDATIONS 23 The Court finds that the Complaint fails to state any cognizable claim upon which relief 24 may be granted under § 1983. Furthermore, Plaintiff has failed to comply with the screening 25 order, which directed him to file an amended complaint or notify the Court that he wishes to stand 26 on the Complaint. Plaintiff has failed to timely file an amended complaint, and has not otherwise 27 prosecuted this action. 28 Accordingly, the Court HEREBY RECOMMENDS that: 6 1 1. Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), Fed. R. Civ. P. 41(b), and L.R. 110, this 2 action be DISMISSED, with prejudice, based on Plaintiff=s failure to state a claim 3 upon which relief may be granted under § 1983, as well as his failure to comply 4 with a court order and failure to prosecute this action; and 5 2. The Clerk of Court be directed to close this case. 6 These findings and recommendations are submitted to the district judge assigned to the 7 case, pursuant to the provisions of 28 U.S.C. ' 636(b)(l). Within twenty-one (21) days after being 8 served with these findings and recommendations, Plaintiff may file written objections with the 9 court. Such a document should be captioned, “Objections to Magistrate Judge’s Findings and 10 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 11 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 12 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IT IS SO ORDERED. Dated: May 7, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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