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Thomas Wayne Velarde v. Heartland Christian Homeschool Center

January 22, 2013

THOMAS WAYNE VELARDE,
PLAINTIFF,
v.
HEARTLAND CHRISTIAN HOMESCHOOL CENTER, INC.; LYNDA
J. HANSEN; TRICIA STENSRUT; TWILA LEFTON, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER: (1) GRANTING MOTION TO [DOC. NO. 3] AND PROCEED IN FORMA PAUPERIS (2) DISMISSING COMPLAINT [DOC NO. 1]

Thomas Wayne Velarde ("Plaintiff"), proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 on December 14, 2012. [Doc. No. 1, Compl.] He filed his Complaint against Heartland Christian Homeschool Center Inc. ("Heartland Christian"); Lynda J. Hansen, principal of Heartland Christian; Tricia Stensrut (Lefton), School Administrator (Records) at Heartland Christian; and Twila Lefton, Student Director at Heartland Christian (collectively "Defendants"). [Id. at 1-5.] Plaintiff alleges that Defendants violated his freedom of religion and freedom of association. [Id. at 3-6.] Within these claims, Defendant also alleges that his right to medical care, access to courts, due process, freedom of speech, and freedom from cruel and unusual punishment have been violated. [Id.]

Although Plaintiff has paid the $350 civil filing fee required to commence this action, he has also filed a motion to proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915. [Doc. No. 3, Mot. for Leave to Proceed IFP ("IFP Mot.")]. For the following reasons, the Court GRANTS Plaintiff's motion for leave to proceed IFP and DISMISSES his complaint.

I. Motion to Proceed IFP

Plaintiff has filed a motion to proceed IFP, but has already paid the civil filing fee. [Doc. No. 1.] However, his motion to proceed IFP includes a handwritten note that reads: "P.S. For other court fees minus the cost of the filing fee." [Doc. No. 3, IFP Mot. at 3.] The note also includes the initials "T.V.," which are Plaintiff's initials. [Id.] Therefore, the Court construes his motion for IFP as an effort to obtain court-ordered U.S. Marshal service. SeeFed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d).

Federal Rule of Civil Procedure 4(c)(3) provides that "[a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court." Fed. R. Civ. P. 4(c)(3). In addition, when a plaintiff is granted leave to proceed IFP, the United States Marshal, upon order of the court, is authorized to serve the summons and complaint on the plaintiff's behalf. See 28 U.S.C. § 1915(d); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1993) (overruled on other grounds); Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991). A request to proceed IFP need not be filed at any particular time, but may be initiated at any stage of a proceeding. See Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) ("IFP status may be acquired or lost throughout the course of the litigation"), aff'd in pertinent part sub. nom, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995).

The Court finds that Plaintiff's motion for leave to proceed IFP is sufficient to show that he is financially unable to execute personal service of the summons and complaint. Accordingly, and in order to aid in the timely administration of justice in this matter, he will now be permitted to proceed IFP pursuant to Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d).

II. Sua Sponte Review

Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the Court, if it finds the complaint is "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.").

"Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). In order to properly state a claim for relief, "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, 556 U.S. 662, 678 (2009). A complaint must contain more than a "labels and conclusions" or 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, 555 (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.

Although pro se complaints enjoy "the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), Rule 8 still "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. The rule of liberal construction "applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

Plaintiff brings his claims of violations of his freedoms of religion and association under 42 U.S.C. § 1983. [Doc. No. 1, Compl.] Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the Constitution. See Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). In order to sustain a § 1983 action, a plaintiff must show: "(1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a 'person' (4) acting under color of state law." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).

A defendant has acted under color of state law where he has "exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). "The state-action element*fn1 in § 1983 'excludes from its reach merely private conduct, no matter how discriminatory or wrongful.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted)). Where a private party conspires with state officials to deprive others of constitutional rights, however, the private party is acting under color of state law. See Tower v. Glover, 467 U.S. 914, 920 (1984).

The Ninth Circuit has explained that "[s]tate action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 955 (9th Cir. 2008) (en banc) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)). Further, the Ninth Circuit has recognized that it is important to identify the challenged action ...


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