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JOHN FREDERICK WHEELER v. HEALTHY SMILES

November 24, 2010

JOHN FREDERICK WHEELER,
PLAINTIFF,
v.
HEALTHY SMILES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITH PREJUDICE

OBJECTIONS DUE: 30 DAYS

I. FACTUAL BACKGROUND

Plaintiff John Frederick Wheeler ("Plaintiff") is proceeding pro se with an action for damages and other relief concerning alleged civil rights violations pursuant to 42 U.S.C. § 1983 that he filed on October 8, 2009. On November 17, 2009, the Court screened the complaint pursuant to 28 U.S.C. § 1915(e)(2), and issued an order dismissing the complaint for failure to state a cognizable claim. The Court, however, granted Plaintiff thirty (30) days to amend his complaint. On December 10, 2009, Plaintiff filed an amended civil rights complaint.

A. November 17, 2009, Screening Order

In his original complaint, Plaintiff claimed that his dental providers violated his civil rights by providing him with a poor set of dentures. In its November 17, 2009, screening order, the Court explained that, to state a claim pursuant to Section 1983, Plaintiff must plead that defendants acted under the color of state law at the time the act complained of was committed, and that the defendants deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). The Court further explained that, generally, private parties are not acting under color of state law. The Court concluded that Plaintiff failed to allege specific facts warranting an inference that Defendants acted under color of state law in a way that resulted in a deprivation of any federally protected rights. Finally, the Court noted that Plaintiff's claims appeared to be common law state claims in contract and/or tort. The Court explained that, as result, Plaintiff had failed to state any basis for subject matter jurisdiction in this Court.The Court granted Plaintiff thirty (30) days to amend his complaint. Plaintiff filed a First Amended Complaint on December 10, 2009.

B. June 18, 2010, Screening Order

In his First Amended Complaint ("FAC"), Plaintiff reasserts that Defendants, consisting of entities or individuals engaged in the practice of dentistry or activities related to dentistry, created a poor set of dentures for Plaintiff, caused Plaintiff physical pain and embarrassment, and then charged Plaintiff additional money to repair the dentures.Among other things, Plaintiff asserts that he is unable to speak well with the dentures fashioned by Defendants, and, therefore, Defendants have impinged on his freedom of speech under the First Amendment and have deprived him of Due Process of law under the Fifth Amendment.

In its June 18, 2010, screening order, the Court again explained that, to state a claim pursuant to Section 1983, Plaintiff must plead facts indicating that defendants acted under the color of state law at the time the act complained of was committed and that the defendants deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Gibson, 781 F.2d at 1338. The Court provided Plaintiff a final opportunity to file an amended complaint to cure this deficiency to the extent that he was able.

C. July 23, 2010, Findings and Recommendations

On July 23, 2010, following Plaintiff's failure to file an amended complaint, Magistrate Judge Sheila K. Oberto issued Findings and Recommendations that the action be dismissed based on Plaintiff's failure to comply with the June 18, 2010, screening order. On August 6, 2010, Plaintiff filed objections to the Findings and Recommendations asserting that he needed an extension of time to file the amended complaint because he had been having trouble with "delivery of both inco[ming] and outgoing mail." (Doc. 8.) On September 9, 2010, the Court issued an order granting Plaintiff a 30-day extension of time to file an amended complaint.

D. Plaintiff's August 6, 2010, Pleading

On August 6, 2010, in addition to filing objections to the Magistrate Judge's Findings and Recommendations, Plaintiff also filed a pleading that was labeled "Second Amended Complaint." (Doc. 9.) This pleading did not relate to the initial complaint or the FAC in that it did not arise out of related conduct or transactions set forth in the initial complaint or the FAC. For that reason, the Court ordered that the "Second Amended Complaint" be stricken, and allowed Plaintiff to resubmit that particular pleading to the Court so that a new case be opened based upon that pleading. (Doc. 11.)*fn1

On September 15, 2010, Plaintiff again filed objections to the Magistrate Judge's July 23, 2010, Findings and Recommendations. (Doc. 12.) Plaintiff stated that the Court misdirected his "Second Amended Complaint" by filing it in this case under case number 1:09-cv-1772-OWW-SKO. Plaintiff asserted that he did not include a case number with the "Second Amended Complaint" because he did not intend it to be ...


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