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Bibbs v. Walkenhorst

United States District Court, Ninth Circuit

July 3, 2013

MARTIN J. BIBBS, Plaintiff,
v.
JOHN WALKENHORST, et al., Defendants.

ORDER GRANTING PLAINTIFF'S MOTION TO VACATE ORDER OF DISMISSAL, DIRECTING CLERK OF THE COURT TO REOPEN CASE AND SERVE DEFENDANTS, AND DIRECTING ALL PARTIES TO FILE CONSENT OR DECLINATION TO PROCEED BEFORE UNITED STATES MAGISTRATE JUDGE (Docket no. 8)

CLAUDIA WILKEN, District Judge.

Plaintiff, a state prisoner incarcerated at Pelican Bay State Prison (PBSP), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. He has paid the filing fee.

The Court reviewed the allegations in the complaint pursuant to 28 U.S.C. § 1915A(a), which requires a federal court to conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. Id . § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins , 487 U.S. 42, 48 (1988).

Upon review of the complaint, the Court found as follows:

Plaintiff alleges that he has been refused the right to purchase merchandise by a private vendor, Walkenhorst's, because he is incarcerated in the Secured Housing Unit (SHU) at PBSP. Plaintiff maintains that PBSP has no policy prohibiting him from purchasing merchandise from Walkenhorst's, and that Walkenhorst's, on its own accord, has chosen not to do business with him solely because of his SHU status. Compl. at 3-4. He claims such discrimination by a private vendor is unlawful, and seeks injunctive relief and damages.
Plaintiff's claim cannot proceed under 42 U.S.C. § 1983, because private individuals and entities do not act under color of state law, an essential element of a § 1983 action. See Gomez v. Toledo , 446 U.S. 635, 640 (1980). Purely private conduct, no matter how wrongful, is not covered under § 1983. See Ouzts v. Maryland Nat'l Ins. Co. , 505 F.2d 547, 559 (9th Cir. 1974). There is no constitutional right to be free from the infliction of deprivations by private individuals. See Van Ort v. Estate of Stanewich , 92 F.3d 831, 835 (9th Cir. 1996).
Because the Defendants named in the complaint are private actors, Plaintiff's allegations against them do not state a cognizable claim for relief under 42 U.S.C. § 1983. Further, granting Plaintiff leave to amend the complaint to state a claim based on such allegations would be futile.
Accordingly, this action is DISMISSED with prejudice and Plaintiff's motion to serve Defendants is DENIED.

Docket no. 6 at 2:1-25.

Now pending before the Court is Plaintiff's motion to vacate the order of dismissal on the ground that Defendants are subject to suit under 42 U.S.C. § 1983 because Walkenhorst's, as a vendor selected by the California Department of Corrections and Rehabilitation to provide merchandise to prisoners, functions as a state actor. Action taken by private individuals or organizations may be under color of state law "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. What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity.... [N]o one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government." Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n , 531 U.S. 288, 295-96 (2001).

Based on the above, the Court finds Plaintiff's allegations are sufficient to allow him to proceed with his claim. Accordingly, the motion to vacate the order of dismissal is GRANTED. The Clerk of the Court shall REOPEN the case and SERVE the Defendants, as set forth below.

In order to encourage the just, speedy and inexpensive determination of 42 U.S.C. § 1983 cases filed in this district, the parties may waive their right to proceed before a district judge and consent to proceed before a magistrate judge for all purposes. Attached to this Order is a Notice of Option to Consent to Proceed Before United States Magistrate Judge and an Order requiring the parties to notify the Court whether they consent or decline to so proceeding. The parties shall ...


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