Free Order - District Court of California - California

Case 4:07-cv-04919-CW

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ZIMBABWE A. ABDUL-MALIK, 5 Plaintiff, 6 v. 7 WALKENHORST COMPANY, et al., 8 9 10 United States District Court For the Northern District of California 11 Defendants. /

No. C 07-04919 CW (PR) ORDER OF DISMISSAL

INTRODUCTION Plaintiff, a state prisoner, filed a pro se civil rights He has also filed an application

12 complaint under 42 U.S.C. § 1983. 13 for in forma pauperis status. 14

For the reasons discussed below, the Court DISMISSES

15 Plaintiff's claims as not cognizable under 42 U.S.C. § 1983. 16 DISCUSSION 17 I. Legal Standard 18 A federal court must conduct a preliminary screening in any

19 case in which a prisoner seeks redress from a governmental entity 20 or officer or employee of a governmental entity. 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable 22 claims and dismiss any claims that are frivolous, malicious, fail 23 to state a claim upon which relief may be granted or seek monetary 24 relief from a defendant who is immune from such relief. Id. 25 § 1915A(b)(1), (2). 26 To state a claim under 42 U.S.C. § 1983, a plaintiff must 27 allege two essential elements: (1) that a right secured by the 28 Constitution or laws of the United States was violated, and

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1 (2) that the alleged violation was committed by a person acting 2 under the color of State law. 3 (1988). West v. Atkins, 487 U.S. 42, 48

"'[A] complaint should not be dismissed for failure to

4 state a claim unless it appears beyond doubt that the plaintiff can 5 prove no set of facts in support of his claim which would entitle 6 him to relief.'" Terracom v. Valley National Bank, 49 F.3d 555,

7 558 (9th Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 8 (1957)). Pro se pleadings must be liberally construed. Balistreri A

9 v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 10 claim that is totally incomprehensible may be dismissed as United States District Court For the Northern District of California 11 frivolous as it is without an arguable basis in law. 12 v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989). 13 II. 14 Legal Claims Plaintiff names Defendants Walkenhorsts Company and Patty

See Jackson

15 Walkenhorsts in his complaint, and he alleges that these Defendants 16 are liable for failing to fix his broken walkman. 17 cannot be sued under 42 U.S.C. § 1983. These Defendants

Plaintiff does not allege Action taken

18 that Defendants were acting under color of state law.

19 by a private organization may be under color of state law "if, 20 though only if, there is such a close nexus between the State and 21 the challenged action that seemingly private behavior may be fairly 22 treated as that of the State itself." Brentwood Academy v.

23 Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) 24 (internal quotations omitted). The Supreme Court has found state

25 action when a challenged activity results from the State's exercise 26 of coercive power, when the State provides significant 27 encouragement for the activity, or when a private actor operates as 28 a willful participant in joint activity with the State. 2 See id.

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1 The Court finds that Plaintiff alleges no facts suggesting the 2 conduct of Defendants Walkenhorsts Company and Patty Walkenhorsts 3 could fairly be treated as conduct of the State itself. 4 Furthermore, because Plaintiff's allegations against Defendants 5 involve purely private conduct, they do not meet the standards for 6 cognizable claims under § 1983. See Gomez v. Toledo, 446 U.S. 635,

7 640 (1980) (a private citizen does not act under color of state 8 law, an essential element of a § 1983 action); Ouzts v. Maryland 9 Nat'l Ins. Co., 505 F.3d 547, 559 (9th Cir. 1974), cert. denied, 10 421 U.S. 949 (1975). United States District Court For the Northern District of California 11 12 13 CONCLUSION For the foregoing reasons, 1. Plaintiff's application for in forma pauperis status is

14 GRANTED. 15 2. Plaintiff's claims against Defendants Walkenhorsts

16 Company and Patty Walkenhorsts fail to state a claim upon which 17 relief may be granted and are DISMISSED with prejudice. 18 3. The Clerk of the Court shall enter judgment in accordance

19 with this Order. 20 21 22 Dated: 23 24 25 26 27 28 3 4/28/08 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 4. This Order terminates Docket no. 2.

IT IS SO ORDERED.

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ZIMBABWE A. ABDUL-MALIK,

4 Plaintiff, 5 v. 6 WALKENHORSTS et al, 7 Defendant. 8 9 /

Case Number: CV07-04919 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District 10 Court, Northern District of California. United States District Court For the Northern District of California 11 That on April 28, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said 12 envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 Zimbabwe Abdul-Malik V-04586 Salinas Valley State Prison 16 C3-107 P.O. Box 1050 17 Soledad, CA 93960 18 Dated: April 28, 2008 19 20 21 22 23 24 25 26 27 28 4 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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