(PC) King v. Ashley et al, No. 2:2014cv01306 - Document 21 (E.D. Cal. 2015)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/18/2015 DIRECTING the Clerk to assign a district judge to this case. IT IS RECOMMEDED that plaintiff's 19 third amended complaint be dismissed without prejudice. Assigned and referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN E. KING, 12 Plaintiff, 13 14 No. 2:14-cv-1306 KJN P v. ORDER AND FINDINGS AND RECOMMENDATIONS AARON ASHLEY, et al., 15 Defendants. 16 Plaintiff is a former state prisoner, proceeding without counsel. Plaintiff filed a civil 17 18 rights action pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding 19 was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). By order filed June 11, 2014, plaintiff was cautioned that his civil rights complaint failed 20 21 to state a cognizable civil rights claim because it did not appear that the security guards named as 22 defendants acted under color of state law. On July 23, 2014, plaintiff’s amended complaint was 23 dismissed and he was granted leave to file one amended complaint, provided he could 24 “demonstrate that defendants acted under color of state law.” (ECF No. 7 at 6.) Since then, 25 plaintiff has filed three more pleadings, including a pleading entitled “Notice of Second Amended 26 Complaint Corrected/Completed,” which was docketed as a third amended complaint (“TAC”). 27 (ECF No. 19.) 28 //// 1 1 In his TAC, plaintiff now recounts what the police officers did when they arrived at the 2 scene, and disputes what the security guard defendants said to the police. Plaintiff now alleges 3 that the police officers worked closely with the security guards and exhibited favoritism toward 4 them by allegedly falsifying their police reports, although plaintiff also contends he has been 5 unable to obtain the complete police reports because parts have been deemed “confidential.” 6 Plaintiff now names the Sacramento Police Department as a defendant, alleging that Officers 7 Walker and Pullen falsified police reports, and appears to complain that they refused to “enforce 8 the law,” ostensibly by refusing to arrest the security guards. (ECF No. 19 at 3.) Plaintiff added 9 numerous claims, unrelated to the initial allegations contained in his original complaint. 10 The gravamen of plaintiff’s current pleading, as far as the court can tell, is that plaintiff 11 was allegedly “assaulted and injured for washing old ladies’ windows and helping them pump 12 their gas.” (ECF No. 19 at 6.) Plaintiff states that he left the AM/PM market on a bike, unaware 13 he was being followed, and that the security guards followed him and tasered him after he left the 14 AM/PM market. (ECF No. 19 at 6.) Plaintiff claims that the two security guards used excessive 15 force, and were acting under color of state law because (1) the police report was falsified; (2) the 16 use of excessive force caused injury to an elderly man; (3) plaintiff was denied public records; (4) 17 despite the police officers’ knowledge that a crime took place, they used a negligent decision to 18 not arrest the security guards because of “friendship”; and (5) plaintiff was shot with a taser 19 because he is black. (ECF No. 18 at 14.) 20 To state a claim under Section 1983, plaintiff must allege a deprivation of a constitutional 21 right under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). An 22 individual defendant is not liable on a civil rights claim unless the facts establish that defendant’s 23 personal involvement in some constitutional deprivation or a causal connection between the 24 defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 25 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978); see 26 also Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (person deprives another of constitutional 27 right if he does an affirmative act, participates in another’s affirmative acts, or omits to perform 28 an act which he is legally required to do that causes deprivation of which plaintiff complains). 2 1 A private individual does not act under color of state law, an essential element of a § 1983 2 action. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Purely private conduct, no matter how 3 wrongful, is not covered under § 1983. See Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 4 (9th Cir. 1974), cert. denied, 421 U.S. 949 (1975). There is no right to be free from the infliction 5 of constitutional deprivations by private individuals. See Van Ort v. Estate of Stanewich, 92 F.3d 6 831, 835 (9th Cir. 1996). 7 “Generally, the acts of private security guards, hired by a store, do not constitute state 8 action under § 1983.” Josey v. Filene’s, Inc., 187 F.Supp.2d 9, 16 (D.Conn. 2002) (citing Harris 9 v. Security Co. of 1370 Sixth Avenue, 1996 WL 556927, *2 (S.D. N.Y. 1996); Moher v. Stop & 10 Shop Cos., Inc., 580 F.Supp. 723 (D. Conn.1984)); Bishop v. Toys “R” Us-NY LLC, 414 11 F.Supp.2d 385, 396-97 (S.D. N.Y. 2006). Private individuals and entities not affiliated with a 12 state or municipal government generally do not act “under color of state law.” See Florer v. 13 Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011) (“We start with the 14 presumption that conduct by private actors is not state action.”) (citation omitted), cert. denied, 15 132 S. Ct. 1000 (2012); Price v. State of Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (“[P]rivate 16 parties are not generally acting under color of state law.”), cert. denied, 503 U.S. 938 (1992). 17 While such private parties may a cause a deprivation of a constitutional right, they are not subject 18 to Section 1983 liability unless (1) they acted under color of law, and (2) their conduct was 19 properly attributable to the government. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156 20 (1978); Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133, 134-36 (9th Cir. 1971) 21 (violations of certain constitutional rights actionable under federal law only when accomplished 22 by one who is clothed with authority of state and purporting to act thereunder) (citations and 23 internal quotations omitted); see also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936-37 24 (1982) (private corporation does not act under color of law unless its actions are fairly attributable 25 to the government). 26 The actions of a private individual or entity may properly be attributed to the government 27 for purposes of Section 1983 if at the time of an alleged constitutional violation (1) the private 28 actor was performing a public function; (2) the private actor was engaged in joint activity with the 3 1 government; (3) the private party acted under governmental compulsion or coercion; or (4) there 2 was a sufficient nexus between the government and the private actor. Kirtley v. Rainey, 326 F.3d 3 1088, 1092 (9th Cir. 2003) (recognizing “at least four . . . tests” for determining whether private 4 conduct amounts to state action) (citations and quotation marks omitted). Plaintiff has the burden 5 to establish state action under one of the foregoing tests. Florer, 639 F.3d at 922 (citation 6 omitted); see also Kirtley, 326 F.3d at 1092 (“Satisfaction of any one test is sufficient to find state 7 action, so long as no countervailing factor exists.”) (citation omitted). 8 Plaintiff’s allegations do not demonstrate that the private security guards acted under color 9 of state law. None of the reasons set forth by plaintiff meet one of the four tests under Kirtley. 10 Indeed, it now appears that plaintiff contends the security guards acted wrongfully by following 11 plaintiff off the AM/PM Market property. Plaintiff alleges the security guards acted with 12 “premeditation” and “maliciousness,” with the clear intent to commit a crime. (ECF No. 18 at 13 14.) Because the security guards were not acting under color of state law, the defendants who 14 allegedly assaulted plaintiff were private security guards who were not acting under color of state 15 law. See Stanley v. Goodwin, 475 F. Supp. 2d 1026 (D. Hawaii Aug. 8, 2006) (security guard 16 was not a state actor for purposes of § 1983). Thus, plaintiff’s claims should be dismissed 17 without prejudice to plaintiff pursuing assault and battery, negligence, or other state law claims in 18 state court. Because the private security guards were not acting under color of state law, plaintiff 19 also fails to state a claim against the Cal Force Security, which employed the guards. 20 With regard to plaintiff’s claims against the police department and its officers, plaintiff 21 also fails to state cognizable civil rights claims. Plaintiff does not have a constitutional right to 22 have someone arrested. Rather, law enforcement officers have discretion to determine who to 23 arrest. For example, California Government Code § 820.2 states, “a public employee is not liable 24 for an injury resulting from his act or omission where the act or omission was the result of the 25 exercise of the discretion vested in him, whether or not such discretion be abused.” Cal. Gov’t 26 Code § 820.2. The discretionary act immunity extends to basic governmental policy decisions 27 entrusted to broad official judgment. Caldwell v. Montoya, 10 Cal.4th 972, 976, 42 Cal.Rptr.2d 28 842 (Cal. 1995). 4 1 Plaintiff was previously provided with the legal standards most applicable to his claims, 2 but has been unable to cure the deficiencies identified despite being granted numerous 3 opportunities to do so. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (if, after careful 4 consideration, it is clear a complaint cannot be cured by amendment, the court may dismiss 5 without leave to amend.); see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) 6 (same). Specifically, plaintiff was given several opportunities to demonstrate that the private 7 security guards acted under color of state law, yet failed to do so. Because it appears that plaintiff 8 cannot cure this deficiency by alleging additional facts, the court declines to recommend that he 9 be granted leave to file a fourth amended complaint. 10 11 12 13 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and IT IS RECOMMENDED that plaintiff’s third amended complaint be dismissed without prejudice. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, plaintiff may file written objections 17 with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 19 failure to file objections within the specified time may waive the right to appeal the District 20 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 Dated: December 18, 2015 22 23 24 /king1306.56 25 26 27 28 5
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