ORDER AND FINDINGS AND RECOMMENDATIONS
This case, in which plaintiffs are proceeding in forma pauperis and in propria persona, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). Defendants move to dismiss plaintiffs' second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Dckt. No. 20. Defendants also move for an order declaring plaintiff Raj Singh a vexatious litigant and requiring plaintiff Singh to furnish security for costs to be incurred in this action. Dckt. No. 24. Plaintiffs oppose both motions and request that the court order defendant Finley to be investigated by the California State Bar. Dckt. Nos. 26, 27. For the reasons explained below, the undersigned recommends that defendants' motion to dismiss be granted. Further, defendants' motion for an order declaring plaintiff Raj Singh a vexatious litigant and requiring plaintiff Singh to furnish security for costs and plaintiffs' request to have defendant Finley investigated by the California State Bar are denied.
On May 5, 2011, the undersigned dismissed plaintiffs' initial complaint with leave to amend pursuant to 28 U.S.C. § 1915(e)(2). Dckt. No. 4. Plaintiffs filed an amended complaint, which was also dismissed pursuant to § 1915(e)(2). Dckt. Nos. 5, 6. On August 5, 2011, plaintiffs then filed a second amended complaint. Dckt. No. 9.
The second amended complaint, which asserts a claim against defendants Stephen Lipworth and Steven Finley under 42 U.S.C. § 1983, alleges that "[a] judgment was fraudulently obtained against [plaintiff] Raj Singh" and that Lipworth "became assignee to collect" the judgment. Id. at 2.*fn1 Plaintiffs allege that Lipworth then foreclosed on certain real estate owned by plaintiff Suman Mehta for the satisfaction of the judgment against plaintiff Singh. Id. Plaintiffs allege that Lipworth conspired with defendant Finley, as well as with the Sacramento Sheriff and certain judicial officers to engage in "illegal acts" which "deprived the constitutional rights of plaintiffs to defend and to own [certain property, and were] facilitated by the above named-defendants' station and capacity of influence over Sheriff and Judicial Officers," and that defendants were therefore "acting under color of state law." Id. Plaintiffs also contend that the "[i]llegal acts of Defendants and Judicial officers circumvented the 'due course of justice.'" Id.
II. Rule 12(b)(6) Motion to Dismiss
Defendants move to dismiss the second amended complaint pursuant to Rule 12(b)(6), arguing that it fails to state any valid claims. Defendants argue that the conspiracy allegations are too conclusory to meet the pleading standards as required by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).*fn2 Dckt. No. 20 at 18-19.
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 Atl. Corp. v. Twombly, 550 U.S. at 555. "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, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (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, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
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. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). 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).
The only claim set forth in plaintiffs' second amended complaint is against defendants Stephen Lipworth and Steven Finley under 42 U.S.C. § 1983. However, as the court has previously noted, to state a claim under § 1983, plaintiffs must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). To act under color of state law, an individual is not required to be a state officer. Dennis v. Sparks, 449 U.S. 24, 27 (1980). A private party that willfully participated with a state official in the challenged conduct is considered to have acted under the color of state law. Id. at 27-28. Thus, "private parties who corruptly conspire with a judge in conjunction with the judge's performance of an official judicial act are acting under color of state law for the purpose of § 1983, even if the judge himself is immune from civil liability." Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996). Here, plaintiffs' second amended complaint fails because plaintiffs have not sufficiently alleged that either of the named defendants acted under color of state law.
Plaintiffs do not allege that the named defendants are state officials. Rather, relying on Kimes, plaintiffs allege that defendants conspired with the Sacramento Sheriff and certain judicial officers and therefore acted under color of state law. Dckt. No. 9 at 2, 5. Specifically, plaintiffs claim that "illegal acts of defendants thereby deprived the constitutional rights of plaintiffs to defend and to own [certain property, and were] facilitated by the above named-defendants' station and capacity of influence over Sheriff and Judicial Officers," and that defendants were therefore "acting under color ...