The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER: GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2] DISMISSING COMPLAINT SUA SPONTE; [Doc. No. 1] DENYING MOTION TO APPOINT COUNSEL [Doc. No. 3]
On November 10, 2010, Plaintiff Sherlene Loretta Henderson, proceeding pro se, filed a civil rights complaint, along with a motion to proceed in forma pauperis ("IFP"), and a request for appointment of counsel. For the reasons discussed below, the Court GRANTS Plaintiff's request to proceed IFP [Doc. No. 2], DISMISSES Plaintiff's complaint for failure to state a claim upon which relief may be granted and lack of subject matter jurisdiction [Doc. No. 1], and DENIES Plaintiff's request for appointment of counsel [Doc. No. 3].
I. PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS
All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). The Court, however, may authorize the commencement of an action without the prepayment of fees if the party submits an affidavit, including statement of assets, showing that she is unable to pay the requisite filing fee. 28 U.S.C. § 1915(a). Here, Plaintiff reports that she is unemployed. [Doc. No. 2.] Plaintiff indicates she receives $840 per month in social security payments, and she received a one-time insurance payment of $1,100. [Id.] Plaintiff asserts several monthly debt obligations including, $382 for rent, $230 for credit card payments, and $15 for insurance. [Id.] Plaintiff's IFP application indicates she has checking and savings accounts, which have a combined balance of $60, and that she owns a car. [Id.] Based on the information provided, the Court finds Plaintiff has satisfied the requirements of section 1915 and GRANTS Plaintiff's motion to proceed IFP.
II. SUA SPONTE SCREENING PER 28U.S.C.§1915(e)(2)
The Court is obligated to review a complaint filed IFP sua sponte and must dismiss the action if it determines that the complaint is frivolous, malicious, or fails to state a claim for relief. See 28 U.S.C. § 1915(e)(2); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In addition, the Court has a duty to liberally construe a pro se's pleadings. Id. In giving liberal interpretation to a pro se complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff asserts she suffered food poisoning after eating moldy bread at Defendant Valley View Casino on May 21, 2010. [Doc. No. 1.] According to Plaintiff, she did not realize the bread was moldy until she had taken three bites of the sandwich, and she noticed a bitter taste and her eyes began to water and itch. [Id.] Plaintiff alleges she asked people behind the counter for medicine, such as "ALKA-SALZA or PEPTO," but was told that they could only provide her food. [Id.] Plaintiff then requested some vinegar potato chips and ate some pizza, which did not make her feel any better. [Id.] Plaintiff alleges she had diarrhea for three days and nights, and she was unable to sleep for a month. [Id.] Plaintiff has visited two doctors for her condition, and intends to see an eye doctor later this month. [Id.]
Plaintiff asserts she attempted to contact one of Defendant's managers, Armando Martinez, multiple times to obtain a claim form to formally notify Defendant of the injuries she suffered and to receive compensation for her pain and suffering. [Id.] Plaintiff alleges she notified Defendant Allen E. Lawson, purportedly a chairman at Defendant Valley View Casino, that Mr. Martinez did not respond to her requests. Thereafter, Plaintiff filed the present civil rights action against Valley View Casino and Mr. Lawson. [Id.]
(B) Violation of Civil Rights under 42 U.S.C. § 1983
Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). Plaintiff's complaint does not allege either requirement.
First, Plaintiff asserts she was eating at Valley View Casino when the events in question occurred. However, she does not allege Valley View Casino is a state entity, nor does she allege that Mr. Lawson acted under color of state law. Indeed, the complaint is devoid of any allegations regarding conduct by Mr. Lawson. Although the Court liberally construes the complaint in Plaintiff's favor, it may not "supply essential elements of claims that were not initially pled." Ivey, 673 F.2d at 268.
Second, even if either Defendant is a state actor, Plaintiff has not sufficiently pled conduct that deprived her of a constitutional right. Plaintiff's complaint alleges she became ill after eating moldy bread at the Defendant-establishment. The complaint, however, does not include any allegations that suggest Defendants violated Plaintiff's constitutional rights. Accordingly, because Plaintiff has failed to allege facts that establish a violation of her civil rights ...