United States District Court, N.D. California
ORDER DISMISSING ACTION WITHOUT PREJUDICE RE: DKT.
M. RYU, UNITED STATES MAGISTRATE JUDGE
Douglas Flaugher filed this suit along with an application to
proceed in forma pauperis (“IFP”) and a
motion to appoint counsel. [Docket Nos. 1, 2, 4]. The court
granted Plaintiff's IFP application, dismissed the
complaint with leave to amend, and denied the motion to
appoint counsel. [Docket No. 6]. On April 17, 2017, the court
construed Plaintiff's “Motion for Discovery”
as a first amended complaint and dismissed the case once
again, but granted leave to file a second amended complaint
by May 5, 2017. [Docket No. 11]. On May 3, 2017, Plaintiff
filed a motion for leave to file an amended complaint.
[Docket No. 12]. Since Plaintiff did not file any other
document by May 5, 2017, the court construes Plaintiff's
motion for leave as his second amended complaint
(“SAC”). The court now dismisses the action
is very sparse. In order to fully understand Plaintiff's
case, the court will consider the allegations in the original
complaint to provide context for the allegations in the SAC.
original complaint, Plaintiff brought Eighth Amendment claims
against various defendants arising out of their denial of his
applications for affordable housing. Plaintiff alleged that
he is a mentally disabled individual who is and/or was
homeless. See Compl. at 6. Plaintiff named Community
Housing Partnership as a defendant. It is an organization
that provides affordable housing to homeless individuals and
is based in San Francisco, California. Plaintiff also named
four DOE defendants whom Plaintiff describes as individuals
who either worked at the Community Housing Partnership, or
are “leaders or representatives” of unnamed
organizations that provide affordable housing to homeless
and/or mentally disabled individuals in San Francisco.
See Compl. at 4-5. Plaintiff alleged that the Doe
Defendants abandoned and denied his applications for
affordable housing for prejudicial and discriminatory
reasons, and that the Doe Defendants kept him homeless by
approving drug addicts, alcoholics, and undocumented
immigrants for affordable housing instead of Plaintiff.
See Compl. at 4-5.
court dismissed the Eighth Amendment claims in the original
complaint with prejudice, but gave Plaintiff an opportunity
to amend his complaint to plead allegations showing that the
defendants were state actors under 42 U.S.C. § 1983, and
that he was subjected to discriminatory conduct in violation
of the Fourteenth Amendment and the Fair Housing Act.
See Docket No. 6.
SAC, Plaintiff requests that this court
“recognize” his claims against the Doe Defendants
and alleges that the Doe Defendants (1) abandoned his housing
applications with deceit, lies and contempt; and (2) approved
affordable housing applications for drug addicts, alcoholics,
and illegal immigrants with taxpayer money. Given
Plaintiff's prior pleadings, the court assumes that the
Doe Defendants described in the second amended complaint are
the same Doe Defendants described in the original complaint.
allegations in the SAC are essentially the same as those
raised in the original complaint, with the exception of new
allegations asserting deceit, lies and contempt.
Compare Compl. at 4-5 [Docket No. 1] (alleging that
the Doe Defendants kept Plaintiff homeless by approving drug
addicts, alcoholics, and undocumented immigrants for
affordable housing instead of Plaintiff) with SAC at
1 (Doe Defendants “abandoned applications for housing
opportunities with “deceit, lies [and] contempt,
” and instead provided housing for addicts and
alcoholics using taxpayer dollars).
continues to fail to state a claim for the reasons that the
court has previously provided. As explained in the
court's March 13, 2017 order dismissing his original
complaint, private individuals are generally not liable under
42 U.S.C. § 1983 for “merely private
conduct.” I.H. by & through Hunter v. Oakland
Sch. for the Arts, No. 16-CV-05500-SI, 2017 WL 565069,
at *3 (N.D. Cal. Feb. 13, 2017) (explaining that
“[g]enerally, private individuals and entities cannot
be held liable under section 1983, because this section
‘excludes from its reach merely private conduct, no
matter how discriminatory or wrongful'”) (quoting
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999) (internal quotation marks and citation omitted)).
Thus, the Doe Defendants are not liable under section 1983
simply for denying Plaintiff's affordable housing
applications. However, private individuals can “be
liable under section 1983 if [they] conspired or entered
joint action with a state actor.” Franklin v.
Fox, 312 F.3d 423, 441 (9th Cir. 2002). Here, Plaintiff
has not provided any facts showing that the Doe Defendants
either conspired or entered into joint action with a state
actor. Nor can the court glean the existence of any such
facts even considering Plaintiff's prior documents.
Therefore, the court dismisses Plaintiff's second amended
complaint for failure to state a claim.
having been given two opportunities to amend his complaint to
plead a federal claim, see Docket Nos. 6 and 11, it
does not appear that Plaintiff can plead a federal claim
establishing this court's subject matter jurisdiction,
even liberally construing Plaintiff's allegations.
See Clarkes v. Hughes, No. 17-CV-00961 (JMA)(AYS),
2017 WL 1843108, at *3 (E.D.N.Y. May 5, 2017)
(“Although courts hold pro se complaints to less
stringent standards than formal pleadings drafted by lawyers
. . . pro se litigants must establish subject matter
jurisdiction.”) (citation and internal quotation marks
omitted). Therefore, the court dismisses Plaintiff's
action without prejudice. See Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.”); see also Telesaurus VPC, LLC v.
Power, 623 F.3d 998, 1003 (9th Cir. 2010) (explaining a
district court may deny leave to amend if “the
plaintiff had several opportunities to amend its complaint
and repeatedly failed to cure deficiencies”).
court issues no opinion on whether Plaintiff could bring a
state law claim for fraud in state superior court based on
the new allegations of deceit, lies, and contempt in the SAC.
See, e.g., Robinson Helicopter Co. v. Dana Corp., 34
Cal.4th 979, 990, 102 P.3d 268, 274 (2004) (setting forth the
elements of fraud claim under California law as “(1) a
misrepresentation (false representation, concealment, or
nondisclosure); (2) knowledge of falsity (or scienter); (3)
intent to defraud, i.e., to induce reliance; (4) justifiable
reliance; and (5) resulting damage”).
the court dismisses Plaintiffs action without prejudice. The