1 2 3 4 5 6 7 10 11 ALBERTO CAMPOS, Case No.: 3:19-cv-01455-BAS-AGS CDCR #BE-2841, 12 ORDER DISMISSING FIRST AMENDED Plaintiff, 13 COMPLAINT FOR FAILING TO STATE vs. A CLAIM PURSUANT TO 28 U.S.C. 14 § 1915(e)(2)(B)(ii) K.U.S.I. NEWS MEDIA, 15 Defendant. 16 17 18 Plaintiff Alberto Campos, currently incarcerated at Richard J. Donovan Correctional 19 Facility in San Diego, California, and proceeding pro se, filed a civil rights action pursuant 20 to 42 U.S.C. Section 1983. The Court granted Plaintiff’s Motion to Proceed In Forma 21 Pauperis (“IFP”), but dismissed Plaintiff’s initial Complaint (ECF No. 1) for failing to state 22 a claim pursuant to 28 U.S.C. Section 1915(e)(2) and granted Plaintiff leave to amend. 23 (ECF No. 6.) 24 On November 13, 2019, Plaintiff filed his First Amended Complaint (“FAC”), 25 reiterating his claim that a San Diego news organization defamed him and violated due 26 process by failing to “tileize” his face when airing a video recording of his sentencing 27 hearing in San Diego Superior Court on August 22, 2017. (See ECF No. 7, First Am. 28 1 Compl. at 3–4.) 2 I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 3 A. Standard of Review 4 Because Plaintiff is proceeding IFP pursuant to 28 U.S.C. Section 1915(a), his 5 Complaint is subject to a sua sponte review and mandatory dismissal if it is “frivolous, 6 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 7 relief from a defendant immune from such relief,” regardless of whether he seeks redress 8 from a “governmental entity.”2 See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 9 S. Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. Section 1915(e)(2) “the court shall dismiss 10 the case at any time if the court determines that—(A) the allegation of poverty is untrue; 11 or (B) the action or appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on 12 which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 13 banc) (“[S]ection 1915(e) not only permits, but requires a district court to dismiss an in 14 forma pauperis complaint that fails to state a claim.”). 15 “The standard for determining whether a plaintiff has failed to state a claim upon 16 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 17 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 18 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must 19 contain “a short and plain statement of the claim showing that the pleader is entitled to 20 relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 21 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 22 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a complaint states a 24
25 26 1 The Court will refer to the page numbers as they are imprinted by the court’s electronic case filing system. 27 2 As the Court noted in its prior order, although 28 U.S.C. Section 1915A(a)’s screening provisions do not apply to Plaintiff’s Complaint which seeks redress from only private actors, sua sponte review of the First 28 1 plausible claim for relief [is] . . . a context-specific task that requires the reviewing court 2 to draw on its judicial experience and common sense.” Id. The “mere possibility of 3 misconduct” falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. 4 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 5 “When there are well-pleaded factual allegations, a court should assume their 6 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 7 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 8 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 9 allegations of material fact and must construe those facts in the light most favorable to the 10 plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro se, 11 particularly in civil rights cases, to construe the pleadings liberally and to afford the 12 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 13 2010), it may not “supply essential elements of claims that were not initially pled.” Ivey v. 14 Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 15 B. Plaintiff’s Allegations 16 Plaintiff claims a San Diego Superior Court Judge ordered the media to “tileize” his 17 face when airing a video recording of his sentencing hearing on August 22, 2017. (See 18 First Am. Compl. at 3–5.) He later learned, however, that Defendant “K.U.S.I. News 19 Media” failed to comply with that order and broadcast his image “during various news 20 hours.” (Id. at 3.) Additionally, Plaintiff alleges that these broadcasts falsely stated that 21 he pleaded guilty to a hate crime. (See id.) Plaintiff contends Defendant’s actions 22 amounted to “defamation of character” because the media made him look like “someone 23 racist,” which will affect him “for the rest of [his] life including employment 24 opportunities,” and violated due process in an unspecified manner. (See id. at 4–5.) 25 C. 42 U.S.C. Section 1983 26 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 27 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 28 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. Section 1983, a plaintiff must 1 allege two essential elements: (1) that a right secured by the Constitution or laws of the 2 United States was violated, and (2) that the alleged violation was committed by a person 3 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 4 789 F.3d 1030, 1035-36 (9th Cir. 2015). 5 The Court dismissed Plaintiff’s initial Complaint for failure to state a claim because, 6 among other things, Defendant K.U.S.I.
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1 2 3 4 5 6 7 10 11 ALBERTO CAMPOS, Case No.: 3:19-cv-01455-BAS-AGS CDCR #BE-2841, 12 ORDER DISMISSING FIRST AMENDED Plaintiff, 13 COMPLAINT FOR FAILING TO STATE vs. A CLAIM PURSUANT TO 28 U.S.C. 14 § 1915(e)(2)(B)(ii) K.U.S.I. NEWS MEDIA, 15 Defendant. 16 17 18 Plaintiff Alberto Campos, currently incarcerated at Richard J. Donovan Correctional 19 Facility in San Diego, California, and proceeding pro se, filed a civil rights action pursuant 20 to 42 U.S.C. Section 1983. The Court granted Plaintiff’s Motion to Proceed In Forma 21 Pauperis (“IFP”), but dismissed Plaintiff’s initial Complaint (ECF No. 1) for failing to state 22 a claim pursuant to 28 U.S.C. Section 1915(e)(2) and granted Plaintiff leave to amend. 23 (ECF No. 6.) 24 On November 13, 2019, Plaintiff filed his First Amended Complaint (“FAC”), 25 reiterating his claim that a San Diego news organization defamed him and violated due 26 process by failing to “tileize” his face when airing a video recording of his sentencing 27 hearing in San Diego Superior Court on August 22, 2017. (See ECF No. 7, First Am. 28 1 Compl. at 3–4.) 2 I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 3 A. Standard of Review 4 Because Plaintiff is proceeding IFP pursuant to 28 U.S.C. Section 1915(a), his 5 Complaint is subject to a sua sponte review and mandatory dismissal if it is “frivolous, 6 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 7 relief from a defendant immune from such relief,” regardless of whether he seeks redress 8 from a “governmental entity.”2 See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 9 S. Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. Section 1915(e)(2) “the court shall dismiss 10 the case at any time if the court determines that—(A) the allegation of poverty is untrue; 11 or (B) the action or appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on 12 which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 13 banc) (“[S]ection 1915(e) not only permits, but requires a district court to dismiss an in 14 forma pauperis complaint that fails to state a claim.”). 15 “The standard for determining whether a plaintiff has failed to state a claim upon 16 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 17 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 18 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must 19 contain “a short and plain statement of the claim showing that the pleader is entitled to 20 relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 21 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 22 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a complaint states a 24
25 26 1 The Court will refer to the page numbers as they are imprinted by the court’s electronic case filing system. 27 2 As the Court noted in its prior order, although 28 U.S.C. Section 1915A(a)’s screening provisions do not apply to Plaintiff’s Complaint which seeks redress from only private actors, sua sponte review of the First 28 1 plausible claim for relief [is] . . . a context-specific task that requires the reviewing court 2 to draw on its judicial experience and common sense.” Id. The “mere possibility of 3 misconduct” falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. 4 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 5 “When there are well-pleaded factual allegations, a court should assume their 6 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 7 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 8 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 9 allegations of material fact and must construe those facts in the light most favorable to the 10 plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro se, 11 particularly in civil rights cases, to construe the pleadings liberally and to afford the 12 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 13 2010), it may not “supply essential elements of claims that were not initially pled.” Ivey v. 14 Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 15 B. Plaintiff’s Allegations 16 Plaintiff claims a San Diego Superior Court Judge ordered the media to “tileize” his 17 face when airing a video recording of his sentencing hearing on August 22, 2017. (See 18 First Am. Compl. at 3–5.) He later learned, however, that Defendant “K.U.S.I. News 19 Media” failed to comply with that order and broadcast his image “during various news 20 hours.” (Id. at 3.) Additionally, Plaintiff alleges that these broadcasts falsely stated that 21 he pleaded guilty to a hate crime. (See id.) Plaintiff contends Defendant’s actions 22 amounted to “defamation of character” because the media made him look like “someone 23 racist,” which will affect him “for the rest of [his] life including employment 24 opportunities,” and violated due process in an unspecified manner. (See id. at 4–5.) 25 C. 42 U.S.C. Section 1983 26 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 27 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 28 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. Section 1983, a plaintiff must 1 allege two essential elements: (1) that a right secured by the Constitution or laws of the 2 United States was violated, and (2) that the alleged violation was committed by a person 3 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 4 789 F.3d 1030, 1035-36 (9th Cir. 2015). 5 The Court dismissed Plaintiff’s initial Complaint for failure to state a claim because, 6 among other things, Defendant K.U.S.I. News Media is not a person alleged to have acted 7 under color of state law. (See ECF No. 6, at 6.) “A civil rights plaintiff suing a private 8 individual under § 1983 must demonstrate that the private individual acted under color of 9 state law; plaintiffs do not enjoy Fourteenth Amendment protections against ‘private 10 conduct abridging individual rights.’” See Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 11 2002) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961)); see also 12 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“Like the state-action 13 requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 14 excludes from its reach ‘merely private conduct, no matter how discriminatory or 15 wrongful . . . .’” (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982))). 16 Although the Court identified this issue and granted Plaintiff leave to amend to 17 address it, explaining that “something more” must be alleged for the apparently private 18 conduct alleged in the Complaint to constitute governmental action, the First Amended 19 Complaint still fails to state a claim. (See ECF No. 6, at 7 (explaining that “[C]ourts have 20 used four different factors or tests to identify what constitutes ‘something more’: (1) public 21 function, (2) joint action, (3) governmental compulsion or coercion, and (4) governmental 22 nexus.” (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982))).) Plaintiff 23 does not allege facts plausibly showing that K.U.S.I. News Media performed any public 24 function traditionally reserved to the state, acted as a willful participant in joint action with 25 government agents, was compelled or coerced by, or had any connection whatsoever with, 26 the state when it allegedly failed to “tileize” Plaintiff’s face in a video recording of his 27 sentencing hearing. See Iqbal, 556 U.S. at 678; Lugar, 457 U.S. at 939. 28 Plaintiff has also failed to address a second deficiency identified by the Court in 1 dismissing his initial Complaint: the absence of an alleged violation of any “right secured 2 by the Constitution or laws of the United States.” See West, 487 U.S. at 48 (citing 42 3 U.S.C. § 1983). Defamation is not actionable under Section 1983. See Paul v. Davis, 424 4 U.S. 693, 699–701 (1976); Whatley v. Gray, No. 3:17-cv-01591-DMS-NLS, 2018 WL 5 828200, at *2 (S.D. Cal. Feb. 8, 2018) (“[C]laims of ‘defamation of character’ . . . , libel, 6 or slander do not rise to the level of a federal constitutional violation.” (internal citation 7 omitted)); Char v. KHON, No. 18-cv-00304 LEK-KJM, 2018 WL 5284191, at *1, *3 (D. 8 Haw. Oct. 24, 2018) (dismissing sua sponte pursuant to 28 U.S.C. Section 1915(e)(2) a 9 Section 1983 complaint brought by a prisoner alleging that three media outlets and their 10 unidentified employees committed “slander/ defamation, reputational injury, [and] libel by 11 broadcasting false information” about him on the nightly news after his arrest and during 12 criminal proceedings). And although Plaintiff’s First Amended Complaint invokes due 13 process, a federal constitutional right, a violation of due process requires state action—an 14 element that, as explained above, has not been alleged in any of Plaintiff’s pleadings. 15 For all these reasons the Court dismisses Plaintiff’s Complaint in its entirety for 16 failing to state a claim upon which Section 1983 relief may be granted pursuant to 28 17 U.S.C. § 1915(e)(2)(B)(ii); Lopez, 203 F.3d at 1126–27; Watison, 668 F.3d at 1112. 18 D. Leave to Amend 19 Because Plaintiff has already been provided notice of his pleading deficiencies, as 20 well as an opportunity to amend those claims to no avail, the Court finds that granting 21 further leave to amend would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 22 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial of . . 23 . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco 24 Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the 25 plaintiff has previously been granted leave to amend and has subsequently failed to add the 26 requisite particularity to its claims, [t]he district court’s discretion to deny leave to amend 27 is particularly broad.” (internal quotation marks omitted) (second alteration in original)). 28 1 |{II. Conclusion and Orders 2 For the reasons discussed, the Court: 3 1) DISMISSES this civil action without further leave to amend for failure to 4 ||state a claim upon which Section 1983 relief can be granted pursuant to 28 U.S.C. 5 ||Section 1915(e)(2)(B) (ii); 6 2) | CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 7 || 28 U.S.C. Section 1915(a)(3), and 8 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and close 9 || the file. 1] 12 || DATED: January 14, 2020 /) , 13 Lill 4 (Aashan. 6 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6