United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). An order and findings and recommendation were previously issued granting plaintiff's request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and recommending that plaintiff's claims under 42 U.S.C. §§ 1981, 1983, and 1985 against defendants Wood and Hoffman be dismissed without leave to amend. ECF No. 3.
On September 30, 2014, the assigned district judge issued an order adopting in part the findings and recommendations. ECF No. 10. The order found that Wood is absolutely immune from suit, and dismissed plaintiff's claims against that defendant. Id. However, the order concluded that the findings and recommendations did not consider whether Hoffman could be considered a state actor based on the Supreme Court's holding in Dennis v. Sparks, 449 U.S. 24, 27 (1980) (holding that a private party may be considered to have acted under color of state law when the party "is a willful participant in joint action with the State or its agents."). The order noted that the "court expresses no opinion on whether the complaint adequately pleads Hoffman's participation in joint action with Wood or whether it states a claim for a violation of plaintiff's Fourteenth Amendment rights." Id. at 2-3. Accordingly, the matter was referred to the undersigned for further screening. Id. at 2.
In the meantime, on February 3, 2014 and prior to the district judge's order, plaintiff filed a request to amend the complaint together with a first amended complaint. ECF No. 9. That motion is addressed herein along with further screening of plaintiff's complaint.
Leave To Amend
Rule 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Rule 15(a)(2) provides that "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). The policy of freely granting leave to amend should be applied with "extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When determining whether to grant leave to amend under Rule 15(a), a court should consider the following factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). According to the Ninth Circuit, "the crucial factor is the resulting prejudice to the opposing party, " and the burden of showing that prejudice is on the party opposing amendment. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); DCD Programs, 833 F.2d at 187. Granting or denying leave to amend rests in the sound discretion of the trial court, and will be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).
Here, defendants will not suffer any prejudice as they have not yet appeared or even been served in this action. Accordingly, the court will grant plaintiff's motion to amend and screen plaintiff's first amended complaint pursuant to 28 U.S.C. § 1915(e)(2). As explained in the February 8, 2013 findings and recommendations, although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed.R.Civ.P. 12(b)(6). "[A] plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Id. (citations omitted). 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 reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) "requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer "federal question" and "diversity" jurisdiction, respectively. Federal question jurisdiction requires that the complaint (1) arise under a federal law or the U.S. Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2 of the U.S. Constitution, or (3) be authorized by a federal statute that both regulates a specific subject matter and confers federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court's diversity jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the matter in controversy exceeds $75, 000. 28 U.S.C. § 1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
Plaintiff's first amended complaint is brought under 42 U.S.C. §§ 1983 and 1985 against County District Attorney Jeffery Wood and Sondra Hoffman, the mother of plaintiff's daughter. ECF No. 9. Plaintiff alleges that Hoffman violated California Penal Code 278.5(a) by failing to abide by the child custody and visitation order regarding plaintiff's daughter, and that as a result, he requested that defendant Wood prosecute her for those violations. Id. at 3. However, Wood refused to prosecute Hoffman. Id. at 3-4. Plaintiff contends that Wood deprived plaintiff of his right to protective services, and that Wood and Hoffman conspired to deprive plaintiff of his visitation rights with his daughter, his right to equal protection and due process under the Fourteenth Amendment, and his right to familial association under the First Amendment. Id. at 5, 8-9.
Although the complaint alleges claims against defendant Wood, that defendant already has been dismissed without leave to amend. ECF No. 10. Accordingly, the court does not address further plaintiff's claims against Wood. As for defendant Hoffman, the question remained whether plaintiff can state facts sufficient to demonstrate Hoffman either acted under color of state law, or acted in concert with state actors. As discussed below, the first amended complaint fails to state sufficient facts to establish either.
A private party may be considered to have acted under color of state law when the party "is a willful participant in joint action with the State or its agents." Dennis v. Spartks, 449 U.S. 24, 27 (1980). To establish joint action between state actors and a private party, a plaintiff must establish "an agreement or meeting of the minds' to violate constitutional rights." Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). Mere acquiescence to the wrongful conduct is insufficient. Id. Rather, the plaintiff must demonstrate that each participant "share[d] the general conspiratorial objective." Id.
Plaintiff alleges that Wood and Hoffman conspired together to deprive plaintiff of his constitutional rights and his court-ordered visitations with his daughter. ECF No. 9 at 5, 9-10. Plaintiff alleges that Wood gave him bad legal advice that helped Hoffman, id. at 9, and that Hoffman "gained significant aid" from Wood's decision to not prosecute Hoffman. Id. at 10. Plaintiff further claims that "Wood shared Defendant Hoffman's common objective to deprive" plaintiff of his visitation rights. Plaintiff's allegations fail to demonstrate that the defendants had an agreement or acted in concert to violate his constitutional rights. Instead, plaintiff provides his conclusions that defendants conspired against him and shared a common objective. Plaintiff, however, provides no facts in support of this conclusion. Instead, he simply alleges that Wood's decision to not prosecute plaintiff resulted in a benefit to Hoffman. These allegations are insufficient to establish that Hoffman reached an agreement with Wood. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (A court cannot "accept as true allegations that are merely conclusory, unwarranted deduction of fact, or unreasonable inferences."). Accordingly, plaintiff has failed to allege that Hoffman is a state actor and therefore fails to state a claim under section 1983.
Plaintiff also fails to allege facts sufficient to demonstrate a conspiracy claim under 42 U.S.C. § 1985. To state a claim for conspiracy to violate constitutional rights, the plaintiff must establish (1) the existence of a conspiracy to deprive the plaintiff of the equal protection of the laws; (2) an act in furtherance of the conspiracy; and (3) a resulting injury. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1141 (9th Cir. 2000) (citing Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir. 1998)). Further, a plaintiff cannot state a conspiracy claim under § 1985 in the absence of a claim for deprivation of rights under 42 U.S.C. § 1983. See Caldeira v. Cnty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (holding that "the absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations"), cert. denied, ...