United States District Court, E.D. California
FINDINGS AND RECOMNENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, seeks relief pursuant to
42 U.S.C. § 1983 and has requested leave to proceed in
forma pauperis (“IFP') pursuant to 28 U.S.C. §
1915. This proceeding was referred to this court by Local
Rule 302 pursuant to 28 U.S.C. § 636(b)(1). IFP status
was granted by Magistrate Judge Sheila K. Oberto (ECF No. 3),
before she recused herself (ECF No. 4). The case was
reassigned to Magistrate Judge Erica P. Grosjean, who granted
plaintiff's request to transfer the case to the
Sacramento Division of the Eastern District of California.
ECF No. 9. The case is now before the undersigned for
screening. Plaintiff also filed two motions, a “motion
requesting to be filed 22 pages left behind from e-filing re
1 Complaint” (ECF No. 7) and a “motion for
service by U.S. Marshal” (ECF No. 11).
Statutory Screening of Prisoner Complaints
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are “frivolous,
malicious, or fail to state a claim upon which relief may
be granted, ” or that “seek monetary relief
from a defendant who is immune from such relief.” 28
U.S.C. § 1915A(b).
“is [legally] frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
“[A] judge may dismiss . . . claims which are
‘based on indisputably meritless legal theories' or
whose ‘factual contentions are clearly
baseless.'” Jackson v. Arizona, 885 F.2d
639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S.
at 327), superseded by statute on other grounds as stated
in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
basis. Franklin, 745 F.2d at 1227-28 (citations
Rule of Civil Procedure 8(a)(2) requires only ‘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, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “Failure to state a claim under § 1915A
incorporates the familiar standard applied in the context of
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).” Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order
to survive dismissal for failure to state a claim, a
complaint must contain more than “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.”
Twombly, 550 U.S. at 555 (citations omitted).
“‘[T]he pleading must contain something more . .
. than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of
action.'” Id. (alteration in original)
(quoting 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1216 (3d ed.
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) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). In reviewing a complaint
under this standard, the court must accept as true the
allegations of the complaint in question, Hosp. Bldg. Co.
v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as
well as 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) (citations omitted).
sues defendant Amazon.com (“Amazon”) for
violations of 42 U.S.C. § 1983. ECF No. 1 at 1.
Plaintiff alleges that Amazon violated his constitutional
rights under the 13th, 14th, and 15th amendments when it
failed to pay him royalties for his book. ECF No. 1 at 3.
Plaintiff states that Amazon failed to provide him and other
authors access to their money during incarceration, and his
incarceration makes it impossible for him to contact Amazon.
Id. Plaintiff makes a second claim for violations of
the 13th, 14th, 15th and 19th amendments. Id. at 4.
This claim also alleges that Amazon does not provide payment
to authors when they are incarcerated. Id. Plaintiff
states that he first published his book “Humanity Was a
Colony of Extraterrestrials; How the Universe Begins”
in March of 2010, and that the sale price of the book should
result in $13.00 for Amazon and $9.00 for himself.
Id. at 5. Plaintiff requests that defendant pay $2,
100 to the U.S. Courthouse to pay for all of the cases he has
filed. Id. at 6.
Failure to State a Claim
1983 “creates a cause of action against a person who,
acting under color of state law, deprives another of rights
guaranteed under the Constitution.” Henderson v.
City of Simi Valley, 305 F.3d 1052, 1056 (9th Cir.
2002). “In order to allege a claim upon which relief
may be granted under § 1983, a plaintiff must show that
he or she has been deprived of a ‘right secured by the
Constitution and . . . law of the United States' and that
the deprivation was ‘under color' of state
law.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th
Cir. 2003) (citing Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 155 (1978) (quoting 42 U.S.C. § 1983)).
“Action under color of state law normally consists of
action taken by a public agency or officer.” Taylor
v. First Wyo. Bank, N.A., 707 F.2d 388, 389 (9th Cir.
1983). There is no cause of action under § 1983 for
claims against private companies where no government
involvement is alleged. See Apao v. Bank of New
York, 324 F.3d 1091, 1093 (9th Cir.), cert.
denied, 540 U.S. 948 (2003) (§ 1983 “shields
citizens from unlawful government actions, but does not
affect conduct by private entities.”).
the only defendant is not a state actor and is not alleged to
have acted under color of state law. A private entity's
conduct constitutes action under color of state law only if
it is “fairly attributable” to the state.
West v. Atkins, 487 U.S. 42, 49-50 (1988).
“[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.” Brentwood Academy v.
Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288, 295
(2001). Plaintiff alleges only that Amazon, a private
company, has not paid him owed royalties on his book because
he is in prison. No facts stated in the complaint suggest
that the conduct of the private defendant named here could
even arguably be attributed to the state under the applicable
standard. Because plaintiff brings only constitutional claims
under §1983, plaintiff cannot state a claim upon which
relief may be granted.
to amend is not appropriate because the facts presented are
clear, and these facts make clear that plaintiff cannot state
a claim. Because amendment would be futile, it is recommended
that this case be dismissed without leave to amend. See
Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987),
superseded on ...