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Carlos Gilbert Law v. Gregory Steven Miller

September 9, 2011

CARLOS GILBERT LAW,
PLAINTIFF,
v.
GREGORY STEVEN MILLER, 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 OBJECTIONS DUE: 30 DAYS

I. INTRODUCTION AND FACTUAL BACKGROUND

On August 12, 2011, Plaintiff Carlos Gilbert Law ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this action against Defendant Gregory Steven Miller ("Miller"), a 7-Eleven employee, as well as "Doe" Defendants, including the 7-Eleven store manager, the 7-Eleven franchise owner, and/or the 7-Eleven Chief Executive Officer ("Doe Defendants" or, collectively, "Defendants").

Plaintiff's complaint alleges that on January 17, 2011, Plaintiff and Miller "got into a verbal confrontation," in which Miller called Plaintiff a racial epithet and informed Plaintiff that he was going to "kick [Plaintiff's] ass and kill [him]." (Doc. 1, p. 1.) Plaintiff "replied" that he would "do what's necessary to defend" himself. (Doc. 1, p.1.) Plaintiff denies having been on the 7-Eleven property. Nonetheless, Miller "flagged down" Officer Nathaniel McKinnon of the Merced Police Department ("Officer McKinnon"); Miller then informed Officer McKinnon that Plaintiff threatened to kill Miller. (Doc. 1, pp. 1-2.) Consequently, Plaintiff was arrested and charged under California Penal Code Section 422, a felony, for making criminal threats. (Doc. 1, pp. 2, 13-16.) Plaintiff remained in jail on this "bogus charge" until it was "dismissed" by the Merced County District Attorney's Office on May 6, 2011. (Doc. 1, p. 2, see also p. 17.) Plaintiff seeks to sue Miller and Miller's 7-Eleven employers, the Doe Defendants, under the theory of respondeat superior, for violations of Plaintiff's First Amendment right to free speech and for slander. (Doc. 1, p, 2.)

For the reasons set forth below, the Court RECOMMENDS that Plaintiff's complaint be DISMISSED WITH PREJUDICE.

II. DISCUSSION

A. Screening Requirement

In cases where the plaintiff is a prisoner proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

B. Legal Standard

In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

C. Plaintiff Fails to Plead a Viable Federal Claim

Plaintiff's only potential federal claim is his allegation that Miller violated Plaintiff's First Amendment right to free speech. (Doc. 1, p. 2.) Although Plaintiff states in a letter to the Court that he is "not submitting a 42 U.S.C. [Section] 1983 complaint" (Doc. 4, p. 1), the proper avenue to bring a "cause of action for violations of the federal Constitution and laws" is under Section 1983. Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "Title 42 U.S.C. § 1983 provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." To plead a First Amendment claim, Plaintiff must allege some facts demonstrating that his rights are protected under that amendment and were impermissibly infringed upon by government officials. The United States Supreme Court has stated that, "[a]s a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that 'most rights secured by the Constitution are protected only against infringement by governments.'" Lugar v. Edmonson Oil Co., 457 U.S. 922, 936 (1982) (citation omitted). As the Ninth Circuit stated, "[t]he United States Constitution protects individual rights only from government action, not from private action." Single Moms, Inc. v. Montana Power Co., 331 F.3d 743, 746 (9th Cir. 2003). "Only when the government is responsible for a plaintiff's complaints are individual constitutional rights implicated." Id.at 746-47 (citation omitted).

Here, Plaintiff alleges that Miller and the Doe Defendants, all private individuals and employees of 7-Eleven, a private corporation, violated Plaintiff's First Amendment rights. In a letter to the Court, Plaintiff expressly states that Miller and the Doe Defendants are 7-Eleven employees and "not state employees." (Doc. 4, p. 1 (emphasis omitted).) As such, Plaintiff ...


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