White v. Turner Security Systems et al, No. 1:2018cv01314 - Document 6 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissing 5 First Amended Complaint without Leave to Amend for Failure to State a Claim signed by Magistrate Judge Stanley A. Boone on 10/17/2018. Referred to Judge Drozd; Objections to F&R due by 11/23/2018. (Flores, E)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DARNEY RAY WHITE, Plaintiff, 10 11 Case No. 1:18 -cv-01314-DAD-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM v. 12 TURNER SECURITY SYSTEMS, et al., 13 Defendants. (ECF No. 5) OBJECTIONS DUE WITHIN THIRTY DAYS 14 15 16 Darney Ray White (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C. § 1983. 17 On October 1, 2018, Plaintiff was granted leave to file an amended complaint after the complaint 18 was screened and found not to state a cognizable claim. Currently before the Court is Plaintiff’s 19 first amended complaint, filed October 9, 2018. 20 I. 21 SCREENING REQUIREMENT 22 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 23 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 24 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 25 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 26 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 27 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 28 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 1 1 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 2 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 3 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 4 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 5 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 6 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In determining whether a complaint fails to state a claim, the Court uses the same 7 8 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 9 short and plain statement of the claim showing that the pleader is entitled to relief. . ..” Fed. R. 10 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 13 544, 555 (2007)). In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 14 15 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 16 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 17 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 18 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 19 short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting 20 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 21 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 22 alleged. Iqbal, 556 U.S. at 678. 23 II. 24 COMPLAINT ALLEGATIONS On November 1, 2017, Jeremy Mohr, a private security guard, attacked Plaintiff while 25 26 working as a mall security guard.1 (First Am. Compl. (“FAC”) 3, ECF No. 5.) Plaintiff 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 28 CM/ECF electronic court docketing system. 2 1 “repelled” Mr. Mohr without touching him. (Id.) Turner Security Systems is a security company 2 licensed with the State of California. (FAC 4.) Moriah Chapa, an employee of Victoria Secret 3 summoned Mr. Mohr to the business. (Id.) Plaintiff brings this action seeking monetary 4 damages against Jeremy Mohr, Turner Security, and Victoria Secret alleging unlawful search and 5 seizure and excessive force in violation of the Fourth Amendment. 6 III. 7 DISCUSSION 8 A. Plaintiff Fails to Allege a Claim Under Section 1983 9 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 10 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 11 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 12 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual acts under color of state law 13 under section 1983 where he has “exercised power ‘possessed by virtue of state law and made 14 possible only because the wrongdoer is clothed with the authority of state law.’ ” West v. 15 Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). 16 Generally, private parties are not acting under color of state law. Price v. State of Hawaii, 939 17 F.2d 702, 707–08 (9th Cir. 1991). In addressing whether a private party acts under color of law, 18 the court starts “with the presumption that private conduct does not constitute governmental 19 action.” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). 20 To act under color of law does not require that the defendant be an employee of the state, 21 but he must be “a willful participant in joint action with the State or its agents. Private persons, 22 jointly engaged with state officials in the challenged action, are acting see ‘under color’ of law 23 for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27–28 (1980). There are four 24 different factors or tests that courts use to determine if a private party is acting under color of 25 law: “(1) public function, (2) joint action, (3) governmental compulsion or coercion, and (4) 26 governmental nexus.” Sutton, 192 F.3d at 835–36. However, “purely private conduct, no matter 27 how wrongful, is not within the protective orbit of section 1983.” Ouzts v. Maryland Nat. Ins. 28 Co., 505 F.2d 547, 550 (9th Cir. 1974); see also Van Ort v. Estate of Stanewich, 92 F.3d 831, 3 1 835 (9th Cir. 1996) (there is no right to be free from the infliction of constitutional violations by 2 private actors). 3 To establish liability under section 1983, a plaintiff must sufficiently plead that the 4 defendant is engaged in state action. Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 5 1209 (9th Cir. 2002), as amended on denial of reh’g and reh’g en banc (Aug. 23, 2002). 6 “Whether a private party engaged in state action is a highly factual question[,]” in which the 7 nature and extent of the relationship between the defendant and the state is crucial. Brunette, 294 8 F.3d at 1209. 9 10 1. Mr. Mohr Plaintiff alleges that Mr. Mohr is a private security guard providing mall security. 11 Plaintiff cites to Thompson v. McCoy, 425 F.Supp.407, 409 (D.S.C. 1976), to argue that 12 significant state regulation of security guards may result in a finding that the security guard is 13 acting under color of law. Plaintiff contends that Mr. Mohr is licensed with the state and his 14 company has a business relationship with the Fresno Police. Plaintiff further contends that 15 Turner Security Systems is a licensed security company and has the authority and power which 16 law enforcement has to make arrests for individuals violating criminal statutes. 17 In Thompson, the court considered a South Carolina statute that required that any 18 business maintaining security guards on their premises were required to be licensed. 425 19 F.Supp. at 409. The statute required that the employer hiring security guards register and supply 20 extensive information to the South Carolina Law Enforcement Division concerning the 21 prospective employee’s background and training. Id. Most importantly, the statute provided the 22 private security guards with the same authority and powers which sheriffs have to make arrests 23 of any individuals that violated or were charged with violating criminal statutes of the state. Id. 24 The court found that “[a]ctions taken under this system of intensive regulation, combined with 25 the statutory grant of police authority to approved applicants, reaches the necessary degree of 26 state control and cooperation to be properly characterized as action taken ‘under color of state 27 law.’ ” Id. 28 The Court finds Thompson to be distinguishable from the instant action as the statute at 4 1 issue there provided private security guards with the same authority as law enforcement to make 2 arrests. However, under California law a security guard does not have the same authority that is 3 conferred upon an officer of the law. See Cal. Bus. & Prof. Code § 7583.7(a) (security guards 4 are required to be trained on the responsibilities and ethics in citizen arrest, relationship between 5 the security guard and a peace officer in making an arrest, the limitations on security guard 6 power to arrest, and restrictions on search and seizure); People v. Taylor, 222 Cal.App.3d 612, 7 617 (1990) (fact that California licenses security guards and regulates their conduct does not 8 transform them into state actors). “The state emphasizes, in its pamphlet Powers to Arrest[,] 9 Security Guard Training (1987 Rev.) Department of Consumer Affairs, Bureau of Collection and 10 Investigative Services, page 8, ‘A security guard is not a police officer. Guards do not have the 11 same job duties as police officers; they do not have the same training; and they do not have the 12 same powers according to law.’ A security guard arrests with the same power as any other 13 citizen.” Taylor, 222 Cal.App.3d at 625. 14 Plaintiff has failed to allege any facts to suggest that Mr. Mohr would meet the public 15 function, joint action, governmental compulsion or coercion, or governmental nexus test to be 16 considered a state actor. Plaintiff alleges that Mr. Mohr was summoned by an employee from 17 Victoria Secret and there are no allegations that any police officer was present when Mr. Mohr 18 contacted Plaintiff nor are any facts alleged that Mr. Mohr was working in concert with or at the 19 direction of law enforcement. 20 Courts find that a private security guard who works independently from local police 21 would not be a state actor. Stanley v. Goodwin, 475 F.Supp.2d 1026, 1039 (D. Haw. 2006), 22 aff’d, 262 F.App’x 786 (9th Cir. 2007); see also King v. Ashley, No. 2:14-CV-1306 KJN P, 2014 23 WL 3689582, at *2 (E.D. Cal. July 23, 2014) (generally, the actions of private security guards do 24 not constitute state action under section 1983); ); Sayeg v. City of Anaheim, No. 8:13-CV25 02009-SVW-AN, 2015 WL 12734785, at *7 (C.D. Cal. June 17, 2015) (private security guard 26 not state actor where no authority had been conferred upon him by the state beyond that 27 possessed by all private citizens, and he acted of his own volition when he chose to engage the 28 suspect and to assist the city’s police officers in restraining him); Rabieh v. Paragon Sys. Inc., 5 1 316 F.Supp.3d 1103, 1111 (N.D. Cal. 2018) (allegations that suggest that security guard has 2 some power to detain a person on the premises, temporarily confiscated property, and placed 3 individual in handcuffs not sufficient to allege security guard was state actor); Taylor, 222 4 Cal.App.3d 612 at 620-24 (finding security guard is not a state actor under public purpose or 5 joint actor tests). 6 The first amended complaint does not include any factual allegations to demonstrate that 7 Mr. Mohr was acting under color of law at the time that he interacted with Plaintiff. Therefore, 8 the complaint fails to state a cognizable claim under section 1983 against Mr. Mohr. 9 10 2. Turner Security and Victoria Secret Similarly, Plaintiff alleges that Turner Security is licensed with the state and therefore 11 acts under the color of state law. Plaintiff also contends that Victoria Secret is liable because 12 their employee summoned Mr. Mohr to do a police action and Mr. Mohr presented an implied 13 partnership giving the impression he had a silent agreement with Victoria Secret. 14 The Ninth Circuit has held that a private entity is only liable under section 1983 where 15 the plaintiff shows that the entity was acting under color of state law, and the same tests that 16 apply to private actors apply to the private entity. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 17 1139 (9th Cir. 2012). Here, Plaintiff has failed to allege any facts to demonstrate that Turner 18 Security or Victoria Secret acted under the color of law. 19 Further, Plaintiff alleges that Turner Security is liable for the acts of its employees that 20 are carried out in the scope of employment, but there is no respondeat superior liability under 21 section 1983. Iqbal, 556 U.S. at 677. Plaintiff has failed to state cognizable claim against Turner 22 Security or Victoria Secret. 23 IV. 24 CONCLUSION AND RECOMMENDATION 25 Based on the foregoing, Plaintiff’s first amended complaint does not state a cognizable 26 claim for relief for a violation of his federal rights. Plaintiff was previously notified of the 27 applicable legal standards and the deficiencies in his pleading, and despite guidance from the 28 Court, the allegations in Plaintiff’s first amended complaint are largely identical to the original 6 1 complaint. Based upon the allegations in Plaintiff’s original and first amended complaint, the 2 Court is persuaded that Plaintiff is unable to allege any additional facts that would support a 3 Fourth Amendment claim against the defendants named in this action, and further amendment 4 would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court 5 may deny leave to amend when amendment would be futile.”) Based on the nature of the 6 deficiencies at issue, the Court finds that further leave to amend is not warranted. Lopez, 203 7 F.3d at 1130; Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987). Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s first amended complaint 8 9 be DISMISSED WITHOUT LEAVE TO AMEND and this action be CLOSED. This findings and recommendations is submitted to the district judge assigned to this 10 11 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 12 days of service of this recommendation, Plaintiff may file written objections to this findings and 13 recommendations with the court. Such a document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 15 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 16 Plaintiff is advised that failure to file objections within the specified time may result in the 17 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 18 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: October 17, 2018 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 7
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