The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff was previously informed of the defects in his complaint (on screening pursuant to 28 U.S.C. § 1915(e)(2)) and directed to file an amended complaint. That amended complaint, filed October 12, 2010, is currently before the court. Plaintiff has not cured the defects against the judicial or attorney defendants with his amended complaint.*fn1
Plaintiff is convinced that he was the subject of discriminatory action when he was dismissed from his employment as a drama teacher in the Natomas Unified School District. He was convinced enough to file an action against the School District in Sacramento Superior Court. However, that case was dismissed on demurrer and judgment was entered against plaintiff. Thereafter, plaintiff brought more or less the same lawsuit against the School District and other defendants in federal court. Parker v. Natomas Unified School District, CIV-S-09-1058 MCE DAD. However, this case was dismissed on res judicata grounds. One of the arguments plaintiff made in his first federal lawsuit involved the asserted lack of jurisdiction of the state court because the appearing defendants had not been served. Plaintiff has appealed that federal dismissal.
Undeterred, and still convinced that the state court was without jurisdiction to dismiss his state case on demurrer, and apparently unwilling to await the Ninth Circuit ruling on his argument, plaintiff has filed another federal lawsuit against the School District's lawyers in the state court and the judge who granted the demurrer. While plaintiff is barred by the doctrine of collateral estoppel from making the same argument that was made in CIV-S-09-1058, the undersigned need not reach that problem as plaintiff cannot state a federal claim against the lawyer/law firm and the judge is immune from suit. The court should refuse to exercise jurisdiction over all supplemental state claims.
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). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
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.
The amended complaint alleges that defendant attorney Anwyl and defendant Judge McMaster conspired against plaintiff in a previous state court litigation by discriminating against him and depriving him of his civil rights under 42 U.S.C. §§ 1981, 1983 and 1985. He alleges violations of the First, Seventh, and Fourteenth Amendments. By example, he claims that since no summons was ever prepared or served on any defendant in the superior court case, Judge McMaster was without jurisdiction to decide the case. (Am. Compl. at 3.) The amended complaint also alleges that defendant McMaster violated plaintiff's rights to due process and equal protection when he dropped the "challenge" and the motion to vacate and set aside the "illegal and void judgment" from the calendar. Plaintiff also alleges that McMaster discriminated against him when he entered judgment in the state court case. (Id. at 7-8.)
Plaintiff further alleges that defendant Anwyl filed documents in the state court case, knowing that defendants were not properly served, thereby violating plaintiff's due process rights and right to redress. (Id. at 2, 7.) Also alleged is that Anwyl committed fraud in another action pending in this court by filing a Rule 12(b)(6) motion in case No. 2:09-CV-1058-MCEDAD, based on res judicata, further discriminating against plaintiff. (Id. at 3.)
Plaintiff is mistaken that he can sue a private entity, such as a law firm, or a partner of the law firm, for federal constitutional violations.
We begin with the plaintiffs' federal constitutional claims. The United States Constitution protects individual rights only from government action, not from private action.FN3 [omitted] Only when the government is responsible for a plaintiff's complaints are individual constitutional rights implicated. Brentwood Academy v. Tenn. ...