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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 ...

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