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James Edward Jefferson v. Save Mart Supermarket


January 26, 2011


The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge


Presently before the court are defendants Glickman & Associates and Willey's motion to dismiss and to strike, filed June 28, 2010, and Save Mart Supermarket and Ostergard's motion to dismiss, filed August 4, 2010. Plaintiff did not file oppositions, but did file a document entitled, "motion to be relieved of default," on August 2, 2010, and a "notice of additional evidence not earlier available to plaintiff," on September 16, 2010.*fn1 Having reviewed the parties' filings, the court now issues the following findings and recommendations. BACKGROUND

Plaintiff filed his complaint on September 14, 2009, alleging that defendant Save Mart Supermarket, dba FoodMaxx, violated his First Amendment rights and his civil rights under 42 U.S.C. § 1983 by prohibiting him from setting up a table in the common area outside the grocery door in order to collect signatures for ballot petitions and register people to vote. He claims that defendants Erin Willey, property manager for Las Plumas Plaza and her employer Albert. B. Glickman & Associates, violated his rights when they developed a new policy requiring prior authorization for conducting activities in the Las Plumas Plaza shopping center's common areas. Specifically, plaintiff claims that for weeks prior to September 14, 2007, he had set up outside the store in order to obtain voter registration and signatures for petitions to be placed on the ballot, without incident. (Compl. ¶ 4.1.) On September 14th, however, he claims he was informed by defendant Glenn Ostergard,*fn2 a FoodMaxx employee, that the store had a new "sign up policy" and that plaintiff would have to leave the area. (Id. at ¶¶ 4.2, 4.4.) Plaintiff alleges that 35 minutes later, he was arrested by defendant Officer Merchant of the Butte County Sheriff's Department. According to plaintiff, the District Attorney declined to file charges. (Id. at ¶ 4.6.) The complaint contains two causes of action, for violation of civil rights against defendant Glenn (Ostergard) and FoodMaxx, and for conspiracy to violate civil rights, by all defendants. Plaintiff seeks damages.


It should be noted first that plaintiff filed no opposition to either motion to dismiss. All of his belated filings do not purport to be oppositions and contain no substantive argument. Pursuant to E.D. Local Rule 230(c), "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party." Therefore, only the motions to dismiss and the record itself has been considered.


In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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. 235-236 (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.

In considering a motion to dismiss, 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, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

II. Glickman & Associate's and Willey's Motions to Dismiss and to Strike*fn3 Plaintiff has not filed an opposition to this motion, but did file a declaration three days prior to the hearing which states that he did not receive notice of the July 29, 2010 hearing until he received the order continuing it to August 5, 2010. Plaintiff did not file any substantive opposition to this motion.

Plaintiff alleges that these shopping mall defendants developed a new policy requiring prior authorization to use the common areas of the mall. There are no allegations that they were present at the mall on the day that plaintiff was arrested, or that they were somehow involved in the arrest.

First and foremost, § 1983 requires state action and the shopping mall defendants are not state actors. To succeed on a § 1983 damages claim, a plaintiff must demonstrate not only the deprivation of a right secured by the Constitution or laws of the United States, but that defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250 (1988). A § 1983 claim can lie against a private party only when "he is a willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct. 183 (1980).

The Supreme Court has reiterated that "action taken by private entities with the mere approval or acquiescence of the State is not state action." American Manufacturer's Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 119 S. Ct. 977, 986 (1999). In Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729 (1978), the United States Supreme Court held that a lienholder's private sale of goods, even though held pursuant to state law, did not constitute state action. In Sullivan, the Supreme Court reiterated that state action is not present unless action involves both state law and significant state involvement.

For plaintiff to proceed with a claim under 42 U.S.C. § 1983 against defendant Glickman & Associates and its employee, Erin Willey, plaintiff would have to establish state action on the part of these defendants. 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 Glickman & Associates is a private company whose employee acted inappropriately within her private -- not public or governmental -- capacity.

Plaintiff's 42 U.S.C. § 1983 claim is predicated on an alleged violation of his free speech rights under the First Amendment. Plaintiff specifically alleges First Amendment violations within both causes of action entitled, "deprivation of civil rights." (Compl. at 4, 5.)*fn4

Even if plaintiff were permitted to amend the complaint, however, to eliminate any causes of action under 42 U.S.C. §1983 in regard to defendants Glickman & Associates and Willey, he could not state a claim under the First Amendment, and therefore amendment is futile. There is no First Amendment right to gather signatures for initiatives or petitions, or to register voters on a shopping center's private property. Hudgens v. NLRB, 424 U.S. 507, 518, 96 S.Ct. 1029 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 570, 92 S.Ct. 2219 (1972). Plaintiff has another forum in which to collect signatures, including public streets and sidewalks, public parks and public buildings. Strahan v. Frazier, 156 F.Supp.2d 80, 92 (D. Mass. 2001).*fn5

As there are no section 1983 or First Amendment claims against these defendants, there can be no conspiracy claims against them. These defendants should be dismissed.

III. Save Mart Supermarket's and Ostergard's Motion to Dismiss

Plaintiff also did not file an opposition to this motion, but on September 16, 2010, the day the hearing was to take place (before it was vacated), he filed a "notice of additional evidence not earlier available to plaintiff." This notice contains plaintiff's declaration that certain pages of his police record were missing, but that the police department finally released those pages, which he has attached to this filing. The pages consist of an order of arrest for trespass and some photographs, presumably of the location where plaintiff had set up his table outside the store. (Dkt. # 28.) As this filing is untimely and does not address the motion to dismiss, it will not be considered.

Defendants Save Mart Supermarket, dba FoodMaxx (Save Mart) and Glenn Ostergard are alleged to have violated plaintiff's civil rights under 42 U.S.C. § 1983 and the First Amendment when the store manager came out of the store and informed plaintiff of a new signup policy for setting up at the shopping center, and then told plaintiff he had to leave. (Compl. ¶ 4.4.) Officer Merchant then appeared at the scene on behalf of the Butte County Sheriff's Department and arrested plaintiff.*fn6 The complaint is confusing in also alleging that defendants either made or caused to be made a citizen's arrest; however there are no factual allegations that Ostergard executed a citizen's arrest. The filing by plaintiff on September 16, 2010, does attach a document entitled, "Order of Arrest (Private Person)" and appears to be signed by Glenn Ostergard; however, exhibits of this sort may not be considered on a motion to dismiss.

Based on the same authority outlined in regard to the motion to dismiss brought by the shopping mall defendants, supra, defendants Save Mart and Ostergard should also be dismissed. There are no allegations that these defendants acted in conjunction with the Butte County Sheriff's Deputy, other than to possibly report a trespass. Merely complaining to the police does not constitute state action. McConnell v. County of Los Angeles, 2009 WL 4233084 (C.D. Cal. 2009); Fraser v. County of Maui, 855 F.Supp. 1167, 1177 (D. Haw. 1994), (citing Collins v. Womancare, 878 F.2d 1145, 1155 (9th Cir. 1989)). See also Goehring v. Wright, 858 F.Supp. 989, 998 (N.D. Cal. 1994) (complaining to local authorities about activities which give rise to arrest and prosecution do not constitute state action under § 1983).

Even assuming that defendant Ostergard made a citizen's arrest according to plaintiff's belatedly submitted and inadmissible evidence, this behavior still does not constitute state action. Collins, 878 F.2d at 1155; Stanley v. Goodwin, 475 F.Supp.2d 1026, 1039 (D. Haw. 2006).

In regard to a First Amendment claim, the same authority outlined in regard to the previous motion to dismiss applies here. There is no federal First Amendment right to collect petition signatures or register voters at a private shopping mall.

Furthermore, as stated in regard to the previously discussed motion to dismiss, because there are no section 1983 or First Amendment claims against these defendants, there can be no conspiracy claims against them. Defendants Save Mart and Ostergard should therefore be dismissed.

IV. Officer Merchant

It appears from the docket that this defendant was never served and has not appeared. Although defendant Merchant could be dismissed for failure to serve; Fed. R. Civ. P. 4(m); it is preferable to dismiss him on the merits if possible. Because there is no cognizable federal First Amendment right to obtain signatures for initiatives or register citizens to vote at a shopping mall, Officer Merchant's alleged arrest of plaintiff for trespass was lawful. See Hudgens v. NLRB, 424 U.S. 507, 518, 96 S.Ct. 1029 (1976). He therefore could not have deprived plaintiff if this nonexistent right or his civil rights.


Accordingly, for the reasons stated in this opinion, IT IS RECOMMENDED that:

1. Defendants Glickman & Associates and Willey's motion to dismiss and to strike, filed June 28, 2010, (dkt. # 13), be granted;

2. Defendants Save Mart Supermarket's and Ostergard's motion to dismiss, filed August 4, 2010, (dkt. # 22), be granted;

3. Officer Merchant be dismissed;

4. To the extent that plaintiff has raised state civil rights claims, supplemental jurisdiction be denied; and

5. This case be closed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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