The opinion of the court was delivered by: Gregory G. Hollows, United States Magistrate Judge
Plaintiffs, proceeding in this action pro se, have requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302(21), pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff s Sabetta, Wichelman, and Walker have submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the requests to proceed in forma pauperis will be granted.
The determination that plaintiffs may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
However, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' [citation omitted]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [citation omitted]. The plausibility standard is not akin to a 'probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully" Ashcroft v. Iqbal, __U.S.__, S.Ct. , 2009 WL 1361536 (May 18, 2009).
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.
Plaintiff Sabetta alleges that on September 16, 2006, while she was on an AMTRAK passenger bus from Sacramento to Chico, the bus driver harassed her for complaining that he was smoking cigarettes or marijuana. She moved seats and fell asleep, but was awakened in Marysville by police officers who placed her under arrest for causing a disturbance or public intoxication. She was placed in Yuba County Jail and released the next day. She claims that her arrest was without probable cause or a warrant, and that on her release, police did not return all of her money to her. She alleges she was released from jail five minutes after the bus left Marysville for Chico, forcing her to be transient for ten hours which put her at risk. She claims she was then kidnaped and beaten up in Marysville. She attributes the events subsequent to her release from jail to defendants AMTRAK and its bus driver, City of Marysville, Yuba County, and Marysville police officers Conde, Carroll, and Stout. Her claims are for conspiracy (18 U.S.C. § 241), deprivation of rights (18 U.S.C. § 242), federally protected activities (18 U.S.C. § 245), kidnaping (Cal. Pen. Code § 207), false imprisonment (Cal. Pen. Code § 236), violations of the 1st, 4th, 5th, 8th, and 14th amendments to the Constitution, and 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988, her fundamental right to travel, and negligent and intentional infliction of emotional distress.
Plaintiff Wichelman is the common law husband of Sabetta, and claims that he was harassed and intimidated by Marysville Police when he filed a missing person report and tried to find Sabetta. The Marysville Police then directed the San Jose Police Department to search his home and his car in San Jose. His claims are for reckless disregard and intimidation of his rights without probable cause, and negligent and intentional infliction of emotional distress.
Plaintiff Walker is the daughter of Sabetta, who resides in Chico, and Sabetta was traveling to see her. The complaint does not appear to contain any claims by this plaintiff.
Although there is federal question jurisdiction over defendant AMTRAK,*fn1 it is not clear that plaintiff Sabetta can state a claim against AMTRAK under 42 U.S.C. § 1983 as this circuit has not addressed the issue of AMTRAK's liability under this statute. Cf. Johns v. AMTRAK Police Unit, 2007 WL 1655281 (N.D. Ill. 2007) (finding § 1983 claim could proceed against AMTRAK as state actor) ; DeSilvis v. Nat'l R.R. Passenger Corp., 97 F.Supp.2d 459, 460 n. 2 (S.D.N.Y. 2000) (finding state actor based on police power); Cf. Greco v. National R.R. Passenger Corp., 2005 WL 1320147 n. 38 (E.D. Pa. 2005) (AMTRAK subject to suit as an agency or instrumentality of United States).
Furthermore, for plaintiff to proceed with a claim under 42 U.S.C. § 1983 against defendant AMTRAK and its employee, Terry Squire, plaintiff would have to establish state action on the part of these defendants.*fn2 The Ninth Circuit has identified four tests to identify state action by an otherwise private party: "(1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus." Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). Plaintiff has alleged none of these factual predicates vis-a-vis state action, and the complaint does not reasonably establish any. Rather, the complaint alleges only that defendant AMTRAK is a private company whose employees acted inappropriately within their private -- not public or governmental -- capacity.
Plaintiff may, however, state a Bivens claim against AMTRAK's employee, Terry Squire, despite the fact that AMTRAK is not a proper defendant under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 394, 115 S.Ct. 961 (1995) (holding AMTRAK is agency or instrumentality of United States in regard to individual constitutional rights guaranteed against the ...