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Alexander v. Bay

February 11, 2009

KENNETH S. ALEXANDER, PLAINTIFF,
v.
BECKY BAY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James V. Selna United States District Judge

MEMORANDUM AND ORDER

DISMISSING SECOND AMENDED CIVIL RIGHTS COMPLAINT IN PART WITHOUT LEAVE TO AMEND AND IN PART WITH LEAVE TO AMEND (GRANTING MOTIONS TO DISMISS IN DOCKET NOS. 44 & 46)

I. BACKGROUND

In June 2006, Plaintiff Kenneth S. Alexander, proceeding pro se, filed a Civil Rights Complaint in the United States District Court for the District of Columbia. On September 26, 2006, that court dismissed some of the defendants and transferred the action to this Court, where it was filed on December 28, 2006.

On January 12, 2007, Plaintiff filed in this Court his First Amended Complaint. On May 4, 2007, the Court dismissed the First Amended Complaint with leave to amend. On May 24, 2007, Plaintiff filed the present Second Amended Complaint pursuant to 42 U.S.C. § 1983.

On December 12, 2007, Defendants Becky Bay, David Keene, Duc Nguyen, Vache Chakmakian, B.G. Compton, Jeff Brewer, Cheryl Hiatt, Jesus Fernandez, Lilia Castillo, Victoria Malingkas, Joe Norwood, S.A. Holencik, Clover Clinton, and Michael Hill filed the first of the Motions to Dismiss the Second Amended Complaint under consideration herein. On January 8, 2008, Defendants Joe Schmidt, A. Miroshnick, and Simms filed the second of the Motions to Dismiss under consideration herein. Only Defendant George T. Craig has not moved to dismiss the Second Amended Complaint. However, the Court has screened the Second Amended Complaint as concerning Defendant Craig. The Second Amended Complaint should be dismissed as follows.

II. NO LIABILITY PURSUANT TO 42 U.S.C. § 1983

All of plaintiff's claims address what he considers to be substandard care by federal prison officials with respect to Plaintiff's injured hand. (See Second Amended Complaint, at 3-15.)

The Second Amended Complaint must be dismissed, however, because Plaintiff has filed for relief only pursuant to 42 U.S.C. § 1983 (see Second Amended Complaint, at 1), which applies solely to state agents. Each of the Defendants is a federal agent and acted under color of federal law; therefore, section 1983, which provides relief only against state actors acting under color of state law, is irrelevant to Plaintiff's claims. See Billings v. United States, 57 F.3d 797, 801 (9th Cir. 1995). Relief against federal agents could be sought only pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed. 2d 619 (1971), which provides an analogous cause of action against federal actors. See also Hartman v. Moore, 547 U.S. 250, 254 n.2, 126 S.Ct. 1695, 164 L.Ed. 2d 441 (2006).

For this reason, Plaintiff has not stated a cause of action against any of the Defendants. The Second Amended Complaint must be dismissed with leave to amend.

III. NO PERSONAL JURISDICTION FOR DEFENDANTS SCHMIDT, MIROSHNICK, SIMS, BAY AND KEENE

Claims against Defendants Schmidt, Miroshnick, Sims, Bay, and Keene must be dismissed without leave to amend because the Court lacks personal jurisdiction over these five Defendants. Defendants Schmidt, Miroshnick, and Sims moved to dismiss as they are residents of Alaska and all alleged actions taken by them took place in that state. (See Second Amended Complaint, at 5, 11-12.) Defendants Bay and Keane moved to dismiss because they are residents of Washington and Oregon and all of their alleged actions took place in those states. (See Second Amended Complaint, at 3, 6, 12.)

Where a defendant moves to dismiss for lack of personal jurisdiction, the burden is with the plaintiff to make a prima facie showing that jurisdiction exists. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Where, as here, no federal statute governs personal jurisdiction, this Court must apply the law of the forum state. Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). California's long-arm statute is co-extensive with federal standards, so this Court may exercise personal jurisdiction if doing so meets federal constitutional due process standards. Id., at 1320. "For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least 'minimum contacts' with the relevant forum such that the exercise of jurisdiction 'does not offend traditional notions of fair play and substantial justice.'" Schwarzenegger, 374 F.3d at 801 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

There are two types of personal jurisdiction that a forum state may exercise over a nonresident defendant -- general jurisdiction and specific jurisdiction. "Unless a defendant's contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be 'present' in that forum for all purposes, a forum may exercise only 'specific' jurisdiction -- that is, jurisdiction based on the relationship between the defendant's forum contacts and plaintiff's claims." Menken v. Emm, 503 F.3d 1050, 1056-57 (9th Cir. 2007).

Plaintiff did not reply to Defendants' argument that the Court lacked personal jurisdiction over these five Defendants, none of whom, according to Plaintiff's allegations, resides in California or committed acts against Plaintiff in California. It is clear from the pleadings that general personal jurisdiction is not present in this case. Therefore, the only question is whether the Court has specific personal jurisdiction over these five Defendants, which is analyzed via a three-part test:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, ...


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