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Nesbitt v. Hobart Co.

August 26, 2010

KEITH L. NESBITT, PLAINTIFF,
v.
HOBART CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff, who currently is incarcerated at the Chuckawalla Valley State Prison, in Blythe, California, filed a pro se Complaint herein pursuant to 42 U.S.C. § 1983 on July 29, 2010, after being granted leave to proceed leave to proceed in forma pauperis.*fn1

As best the Court can glean from the allegations of the Complaint, plaintiff's claims arise out of an incident which occurred on or around September 9, 2009. Plaintiff claims that his rights under the Fourth and the Eight Amendments were violated when, while engaged in his work assignment in the institution's kitchen, his hand and arm accidentally brushed up against the side of a heating oven, which caused him to suffer second degree burns to his right forearm and the back of his right hand. (Complaint at Exhibit p. 3.) Plaintiff further claims that there were no safeguards to prevent injury in the kitchen, and that there are hazardous chemicals stored in the kitchen. (Complaint at 5.) In the jurisdictional section of the Complaint, plaintiff names one defendant: Hobart Co., a state vendor/contractor, which allegedly provides equipment to the institution. Plaintiff sues Hobart in both its individual and official capacity. By way of relief, plaintiff purports to be seeking monetary damages as well as the following injunctive relief: The installation of safeguards around hearing units to prevent future injury; the removal of hazardous chemicals from the kitchen work area; and the installation of properly working ventilation in the kitchen work area.

In accordance with 28 U.S.C. § 1915(e)(2), the Court has screened the Complaint prior to ordering service, for purposes of determining whether the action is frivolous or malicious; or fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.

The Court's screening of the Complaint under the foregoing statute is governed by the following standards. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) Lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Since plaintiff is appearing pro se, the Court must construe the allegations of the Complaint liberally and must afford plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Moreover, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

After careful review and consideration of the Complaint under the relevant standards, the Court finds that its allegations are insufficient to state a claim for violation of plaintiff's federal civil rights. Although the Court is extremely dubious about whether the deficiencies of the Complaint can be overcome, the Court will afford plaintiff the opportunity to attempt to do so. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (holding that a pro se litigant must be given leave to amend his complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment). The Complaint therefore is dismissed with leave to amend.

A. The allegations of the Complaint are insufficient to state a federal civil rights claim against a private party defendant such as Hobart. "The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: Is the alleged infringement of federal rights fairly attributable to the [government]?" Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed. 2d 418 (1982); see also Huffman v. County of Los Angeles, 147 F.3d 1054, 1057 (9th Cir. 1998) (holding that a defendant must have acted "under color of law" to be held liable under § 1983). Section 1983 "excludes from its reach merely private conduct, no matter how discriminatory or wrong." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49, 119 S.Ct. 977, 143 L.Ed. 2d 130 (1999) (citations and internal quotations omitted). In determining whether a private entity is a "state actor," the Ninth Circuit has applied a number of different criteria or tests: (1) Public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus. See Pollard v. The Geo Group, Inc., 607 F.3d 583, 589-90 (9th Cir. 2010); Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999); George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir. 1996) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed. 2d 482 (1982).) Satisfaction of any one of these tests is sufficient to find state action. See Kirtley, 326 F.3d at 1092; Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002); Arena Corp. v. Lee, 536 U.S. 905 (2002). Plaintiff here has failed to satisfy any of these tests with respect to Hobart. Under the public function test, "when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations." Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed. 2d 373 (1966). The "function" at issue must be both traditionally and exclusively governmental. See Rendell-Baker, 457 U.S. at 842 (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 42 L.Ed. 2d 477 (1974). A private entity may be a state actor for some purposes and not a state actor for others. See George, 91 F.3d at 1230. Here, there is no allegation that Hobart was "endowed by the State with powers or functions governmental in nature[,]" Evans, 382 U.S. at 299; see also Pollard, 607 F.3d at 590. Providing kitchen or cooking equipment is not traditionally and exclusively a governmental function. Thus, plaintiff has not satisfied the public function test. Under the joint action test, "[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute." Lugar, 457 U.S. at 941 (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed. 2d 267 (1966). The question is whether "the state has so far insinuated itself into a position of interdependence with the private entity that it must be recognized as a joint participant in the challenged activity." Kirtley, 326 F.3d at 1093 (internal citations, brackets, and quotation marks omitted). Here, there is no allegation that Hobart's alleged provision of kitchen or cooking equipment was part of any "joint action" with the state. Indeed, it would appear Hobart merely provided the equipment to the facility. Thus, plaintiff has not satisfied the joint action test. The government compulsion or coercion test considers whether "the coercive influence or 'significant encouragement' of the state effectively converts a private action into a government action." Id. at 1094 (citing Sutton, 192 F.3d at 836-37). "[A] private entity acts as the state when some state law or custom requires a certain course of action." George, 91 F.3d at 1232 (citing Gorenc v. Salt River Project Agricultural Improvement & Power Dist., 869 F.2d 503, 508 (9th Cir. 1989). Here, plaintiff cannot meet the government compulsion or coercion test for the same reasons discussed above: Plaintiff has failed to allege that Hobart provided the kitchen equipment at the encouragement of the state or pursuant to state law or custom.

Finally, under the nexus approach, "an ostensibly private organization or individual's action may be treated as the government's action 'if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.'" Single Moms, Inc. v. Montana Power Co., 331 F.3d 743, 747 (9th Cir. 2003) (quoting Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 121 S.Ct. 924, 295 L. Ed 2d 807 (2000); see also Gorenc, 869 F.3d at 506. Plaintiff, again, has failed to allege that Hobart's actions in (apparently) providing kitchen or cooking equipment to the state was the result of such a close nexus to the state that its behavior could be treated as that of the state. Simply because Hobart is alleged to have provided kitchen or cooking equipment to the institution where plaintiff is incarcerated does not make it a state actor for purposes of § 1983 liability.

************

If plaintiff still desires to pursue this action, he is ORDERED to file a First Amended Complaint within 30 days of the date of this Order, remedying the deficiencies discussed above. The First Amended Complaint should bear the docket number assigned in this case; be labeled "First Amended Complaint"; and be complete in and of itself without reference to the original complaint or any other pleading, attachment or document. The Clerk is directed to provide plaintiff with a blank Central District civil rights complaint form, which plaintiff will need to completely fill out and resubmit.

Plaintiff is admonished that, if he fails to timely file a First Amended Complaint, the Court will recommend that the action be dismissed with prejudice on the grounds set forth above and for failure to diligently prosecute.

COMMITTED NAME (if different)

FULL ADDRESS INCLUDING NAME OF INSTITUTION

PRISON NUMBER (if applicable)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

To be supplied by the Clerk

PLAINTIFF, v. DEFENDANT(S).

CIVIL RIGHTS COMPLAINT

PURSUANT TO (Check one)

G 42 U.S.C. § 1983 G Bivens v. Six Unknown Agents 403 U.S. 388 (1971)

PREVIOUS LAWSUITS

Have you brought any other lawsuits in a federal court while a prisoner: G Yes G No

If your answer to "1." is yes, how many?

Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an attached piece of paper using the same outline.)

a. Parties to this previous lawsuit: Plaintiff

Defendants

b. Court

c. Docket or case number

d. Name of judge to whom case was assigned

e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it appealed? Is it still pending?)

f. Issues raised:

g. Approximate date of filing lawsuit:

h. Approximate date of disposition

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Is there a grievance procedure available at the institution where the events relating to your current ...


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