United States District Court, C.D. California
Present: Hon. Gail J. Standish, United States Magistrate
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL
U.S.C. § 1983 action was initiated on August 19, 2019,
when Plaintiff filed his Complaint [Dkt. 1] and paid the
filing fee. The Complaint is very brief and names a single
Defendant, “New York State.” Plaintiff alleges
that he was a resident of New York until late June or early
July 2018. Beginning in August 2016, he became unable to
store food in his apartment, because as soon as he brought
food into the apartment, it spoiled. He was “unable to
get any help with the problem” and had to eat all his
meals on the sidewalk for over a year. (Complaint at 4, 6.)
Plaintiff brings a single claim under Section 1983 labeled
“The right to a habitable dwelling was unenforceable in
New York State.” (Complaint at 6.) The Complaint does
not indicate any requested relief.
threshold matter, the Complaint is deficient, because in
violation of Rule 8(a)(3), it fails to include the required
demand for the relief sought. This, however, is a defect that
could be rectified with amendment. In addition, the Complaint
has been brought in the wrong venue, given that the sole
Defendant is New York State and the matters about which
Plaintiff sues all occurred in the State of New York.
Accordingly, venue for this action does not lie in the
Central District of California. See 28 U.S.C. §
1391(b). The improper venue defect could be remedied by
transferring this action to the Southern District of New
York. The Complaint, however, also suffers from a host of
more fundamental defects that cannot be remedied with
amendment. As a result, the Court believes that the sua
sponte dismissal of this action, without prejudice, is
warranted, for the reasons set forth below. See Clark v.
Busey, 959 F.2d 808, 812 (9th Cir. 1992)
(“Transfer is also improper where the plaintiff fails
to make a prima facie showing of a right to relief, because
the interests of justice would not be served by transfer of
such a case.”).
and critically, the Complaint fails to state a viable Section
1983 claim, because it does not, and cannot, state a
violation of a federal right. Section 1983 only provides a
remedy when someone had been deprived “of any rights,
privileges, or immunities secured by the Constitution and
laws.” Section 1983 requires a violation of
federal constitutional or statutory rights caused by
a person acting under color of state law. Crumpton v.
Gates, 947 F.2d 1418-20 (9th Cir. 1991). A violation of
a state constitutional right alone “does not establish
a basis for a § 1983 lawsuit.” Armstrong v.
Asselin, 734 F.3d 984, 989 (9th Cir. 2013). Nor does the
violation of state statutory or tort law alone. See, e.g.
DeShaney v. Winnebago County Dept. of Social Services,
489 U.S. 189, 202-03 (1989); Daniels v. Williams,
474 U.S. 327, 335-36 (1986) (rejecting “the notion that
all common-law duties owed by government actors were somehow
constitutionalized by the Fourteenth Amendment”).
Plaintiff complains that the State of New York somehow caused
his “right to a habitable dwelling” to be
violated in connection with the food spoilage situation in
his apartment. Any such “right, ” however, is one
of landlord-tenant law under state law; it does not
implicate any federal statutory or constitutional right.
See, e.g., Mattingly v. Elias, 325 F.Supp. 1374,
1383 (E.D. Pa. 1971) (violation of warranty of habitability
“does not constitute a denial of any of the
‘rights, privileges or immunities' secured by the
Constitution of the United States as provided by 42 U.S.C.
§ 1983”; dismissing Section 1983 claim brought by
tenants on this basis). Plaintiff's Section 1983 claim
necessarily fails at the most basic level, namely, for lack
of a deprivation of a federal right.
the State of New York is not a “person” who can
be sued under Section 1983. Will v. Mich. Dept. of State
Police, 491 U.S. 58, 64 (1989) (a state is not a suable
“person” under Section 1983). For this reason
alone, the Complaint fails to state a claim upon which relief
can be granted.
the Eleventh Amendment bars Plaintiff's claim against the
State of New York. “States are protected by the
Eleventh Amendment from suits brought by citizens in federal
court.” Douglas v. Cal. Dep't of Youth
Auth., 271 F.3d 812, 817, amended by, 271 F.3d 910 (9th
Cir. 2001); See also Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). Section 1983 did not
abrogate a state's Eleventh Amendment immunity. Quern
v. Jordan, 440 U.S. 332, 341 (1979). The State of New
York has not waived that immunity with respect to claims
brought under Section 1983 in federal court. See, e.g.,
Tomczyk v. New York Unified Court System, No. 19-CV-2753
(JS)(AYS), 2019 WL 2437849, at *5 (E.D. N.Y. June 10, 2019)
(“Section 1983 does not operate as a waiver of New
York's Eleventh Amendment immunity”); Cater v.
New York, 316 F.Supp.3d 660, 667 (S.D. N.Y. 2018)
(“it is undisputed that the State of New York has not
given its consent, nor did Congress make an express waiver or
carve-out of immunity with respect to the claims Plaintiff
raises under 42 U.S.C §§ 1983, 1985, or 1986. As a
result, such claims are barred, and must be
there are three reasons why the Complaint is not cognizable;
any one of them bars Plaintiff's claim as a matter of
law. “Rule 12(b)(6) [of the Federal Rules of Civil
Procedure] authorizes a court to dismiss a claim on the basis
of a dispositive issue of law.” Neitzke v.
Williams, 490 U.S. 319, 326 (1989). “[I]f as a
matter of law ‘it is clear that no relief could be
granted under any set of facts that could be proved
consistent with the allegations' . . ., a claim must be
dismissed, without regard to whether it is based on an
outlandish legal theory or on a close but ultimately
unavailing one.” Id. (citation omitted). Under
Rule 12(b)(6), a court may dismiss a claim sua sponte for
failure to state a claim when the plaintiff “cannot
possibly win relief.” Omar v. Sea-Land Serv.,
Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also
Seismic Reservoir 2020, Inc. v. Paulsson, 785 F.3d 330,
335 (9th Cir. 2015) (reaffirming this rule); Sparling v.
Hoffman Const. Co., Inc., 864 F.2d 635, 638 (9th Cir.
1988) (a district court may, on its own initiative, dismissal
complaint for failure to state a claim). A court may do so
even when the defendant has not appeared and sought
dismissal. Id.; Ricotta v. State of California, 4
F.Supp.2d 961, 968 (S.D. Cal. 1998), aff'd 173 F.3d 861
(9th Cir. 1999).
general, before sua sponte dismissing a claim under Rule
12(b)(6), a court must give notice of its intention to do so
and provide the plaintiff with an opportunity to oppose such
a dismissal in writing. Seismic Reservoir, 785 F.3d
at 335. This is not required, however, when amendment would
be futile, Omar, 813 F.2d at 991 (a sua sponte
“dismissal may be made without notice where the
claimant cannot possibly win relief”). Although the
Court believes that amendment likely would be futile here,
the Court nonetheless provides notice to Plaintiff of the
Court's intent to recommend dismissal and to afford
Plaintiff an opportunity to respond.
Plaintiff is ORDERED TO SHOW CAUSE why this action should not
be dismissed. On or before September 24, 2019, Plaintiff
shall file a Response to this Order setting forth the
reasons, if any, why this action should not be dismissed
pursuant to Rule 12(b)(6), based on the matters set forth
above. In particular, if Plaintiff believes there are
amendments to his Complaint that would render it cognizable,
he should set them forth clearly and explain why they would
render his claim viable in federal court.
is cautioned that the failure to comply with this Order will
cause the Court to presume that Plaintiff concedes dismissal
is appropriate for the above reasons.