(PC) Marroquin v. Lopez

• Court: District Court, E.D. California
• Decided: March 19, 2025
• Docket: 2:24-cv-01777
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS WALTER MARROQUIN, 2:24-cv-1777-CKD P 12 Plaintiff, 13 v. ORDER AND 14 ELIAS LOPEZ, FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 17 Plaintiff Thomas Walter Marroquin, a state prisoner, proceeds without counsel and seeks 18 relief under 42 U.S.C. § 1983. This matter was referred to the undersigned by Local Rule 302. 19 See 28 U.S.C. § 636(b)(1). For the reasons set forth below, the complaint fails to state a claim and 20 should be dismissed without leave to amend. 21 I. In Forma Pauperis 22 Plaintiff requests to proceed in forma pauperis. Plaintiff’s declaration in support of the 23 motion to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915(a). The 24 motion is granted. By separate order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). The order will direct the appropriate 26 agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the 27 Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent 28 of the preceding month’s income credited to plaintiff’s prison trust account. These payments will 1 be forwarded by the appropriate agency to the Clerk of the Court each time the amount in 2 plaintiff’s account exceeds $10.00 until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 3 II. Screening Requirement 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In 6 addition, pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 7 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a 8 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 9 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 10 (2000). 11 III. Allegations in the Complaint 12 Plaintiff and Elias Lopez, the sole named defendant, sold a house in Modesto and were 13 supposed to split the money. (ECF No. 1 at 1, 3) Defendant found out plaintiff could not read or 14 understand the document defendant had plaintiff sign which gave defendant access over “all of 15 plaintiff’s financial.” (Id. at 3.) Defendant has fraudulently embezzled a large sum of money from 16 plaintiff. (Id. at 3.) 17 IV. Discussion 18 The complaint fails to state a claim because plaintiff does not allege a violation of his 19 federal constitutional or statutory rights or name a defendant who can be sued under the civil 20 rights statute. To state a claim for a violation of federal constitutional or statutory rights under 42 21 U.S.C. § 1983, a plaintiff must allege (1) a right secured by the Constitution or laws of the United 22 States was violated, and (2) the alleged violation was committed by a person acting under color of 23 state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 24 “[M]ost rights secured by the Constitution are protected only against infringement by 25 governments.” Lugar v. Edmonson Oil Co., 457 U.S. 922, 936 (1982). Private conduct usually 26 does not violate the Constitution. Conduct by private individuals or entities is only actionable 27 under 42 U.S.C. § 1983 if there is such a close nexus between the State and the challenged action 28 that seemingly private behavior may be fairly treated as that of the State itself. See Brentwood 1 Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). Courts start 2 with the presumption that private conduct does not constitute governmental action, and a plaintiff 3 bears the burden of establishing state action. See Florer v. Congregation Pidyon Shevuyim, N.A., 4 639 F.3d 916, 922 (9th Cir. 2011). 5 Defendant Lopez is a private citizen and not alleged to be a government actor. Plaintiff’s 6 allegations do not in any way suggest Lopez engaged in conduct by or for a state government. 7 Plaintiff also does not allege any right secured by the Constitution or laws of the United States 8 was violated. Accordingly, plaintiff does not state a claim under 42 U.S.C. § 1983. 9 V. Leave to Amend 10 Leave to amend should be granted if it appears possible that the defects in the complaint 11 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 12 (9th Cir. 2000) (en banc). If, however, it is clear that a complaint cannot be cured by amendment, 13 the court may dismiss without leave to amend. Cato v. United States, 70 F.3d 1103, 1105-06 (9th 14 Cir. 1995). In this instance, further amendment would be futile because plaintiff cannot state a 15 civil rights claim based on alleged embezzlement by a private citizen. Plaintiff’s complaint should 16 be dismissed without leave to amend. See Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. 17 Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely 18 given, the court does not have to allow futile amendments). 19 VI. Plain Language Summary for Pro Se Party 20 The following information is meant to explain this order in plain English. This summary 21 is not intended as legal advice. 22 There is no claim under the civil rights statute for embezzlement by a private citizen. 23 Thus, it is being recommended that your case be dismissed without leave to amend. If you 24 disagree, you have 14 days to inform the court. Label your explanation “Objections to the 25 Magistrate Judge’s Findings and Recommendations” and state the specific facts you could allege 26 to state a claim. 27 //// 28 /// 1 VII. Order and Recommendation 2 In accordance with the above, IT IS HEREBY ORDERED as follows: 3 1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is GRANTED. 4 2. The Clerk of the Court is directed to assign a district judge to this case. 5 In addition, IT IS HEREBY RECOMMENDED as follows: 6 1. Plaintiff's complaint be dismissed without leave to amend for failure to state a claim. 7 2. The Clerk of the Court be directed to close this case. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after 10 || being served with these findings and recommendations, plaintiff may file written objections with 11 || the court and serve a copy on all parties. Such a document should be captioned “Objections to 12 | Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 13 || specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 14 | 1153 (9th Cir. 1991). 15 | Dated: March 18, 2025 / ae □□ / a Ly a 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 8, marr! 777.scrn.fr 19 20 21 22 23 24 25 26 27 28