La' Motte v. Jones

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 KENNETH LA' MOTTE, Case No. 23-cv-03022-JSC 8 Plaintiff, ORDER OF DISMISSAL v. — 9 — 10 PECOLA JONES, Defendant. — 11 — 12 INTRODUCTION 13 Plaintiff, an inmate in the Contra Costa County Jail who is proceeding without 14 representation by an attorney, filed this civil rights complaint under 42 U.S.C. § 1983 against 15 Defendants Pecola Jones and the Ke’ron La’Motte Foundation (“the Foundation”). (ECF No. 7.) 16 For the reasons explained below, the complaint is dismissed because it does not state a claim that 17 is capable of judicial review and determination. 18 STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 22 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 23 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 24 § 1915A(b). Pleadings filed by unrepresented parties must be liberally construed. Balistreri v. 25 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 1 which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although to state 2 a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 3 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 4 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 5 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, — 6 — 550 U.S. 544, 555 (citations omitted). A complaint must proffer “enough facts to state a claim for 7 relief that is plausible on its face.” Id. at 570 . 8 LEGAL CLAIMS 9 Plaintiff claims Jones started the Foundation without getting his permission to use his last 10 name, which is also the last name of their deceased son, for whom the Foundation is named. (ECF 11 No. 1 at 3; No. 7 at 2-3.) He alleges Jones has not sent him any of the Foundation’s “proceeds.” 12 (ECF No. 7 at 3.) He seeks an audit of the Foundation’s finances, and an order stopping the 13 Foundation from continuing to use his last name. 14 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two elements: (1) that a 15 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 16 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 17 42, 48 (1988). Plaintiff’s claim does not meet either of these requirements. First, the Court is not 18 aware of any authority that the use of another person’s last name without their permission violates 19 the United States Constitution or any other federal law. To the extent state law prohibits such 20 usage, the claim cannot proceed under Section 1983. See DeShaney v. Winnebago County Social 21 Servs. Dep't, 489 U.S. 189, 201-03 (1989) (Section 1983 does not impose liability for violations of 22 duties of care arising out of state law). Second, a private individual or entity does not act under 23 color of state law, an essential element of a Section 1983 action. See Gomez v. Toledo, 446 U.S. 24 635, 640 (1980); Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974). Jones and 25 the Foundation, as a private individual and entity respectively, are not liable under Section 1983. 26 Accordingly, the complaint does not state a claim that is capable of judicial review and 27 determination. 1 determine whether to grant leave to amend. Even when a request to amend is not made, “[I]eave 2 || to amend should be granted unless the pleading could not possibly be cured by the allegation of 3 other facts, and should be granted more liberally to pro se plaintiffs.” Lira v. Herrera, 427 F.3d 4 1164, 1176 (9th Cir. 2005) (internal quotation marks omitted); Lopez v. Smith, 203 F.3d 1122 , 5 1128-29 (9th Cir. 2000) (en banc). However, if amendment of the pleading would be futile, leave 6 || to amend is properly denied. See Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010). 7 The complaint cannot be amended in such a way that it would state a claim that is capable of 8 || judicial review and determination under Section 1983. The complaint is clear that Plaintiffs 9 || claim is against a private individual and entity about the use of his last name and entity. Such a 10 || claim cannot be amended to state a claim under federal law or against a government actor. To the 11 extent the use of Plaintiff's last name violates state law, he may bring a state-law claim in state 12 || court. This Court does not have “diversity” jurisdiction over such a claim under 28 U.S.C. § 13 1332(a) because Defendants and Plaintiff reside in the same state. (ECF No. 7 at 2.)! CONCLUSION 3 15 For the foregoing reasons, the case is DISMISSED for failure to state a claim that is a 16 || capable of judicial review and determination. The dismissal is without leave to amend and with 3 17 prejudice as to a Section 1983 claim, but without prejudice to bringing state law claims in state S 18 court. 19 The Clerk shall enter judgment and close the file. 20 IT IS SO ORDERED. Std 21 Dated: July 14, 2023 ne JAYQUELINE SCOTT CORL 22 United States District Judge — 23 — — 24 — — 25 — — 26 — 27 ou Plaintiff indicates Jones resides in Daly City, California (ECF No. 7 at 2), and the website for 2g || the Foundation indicates it is located in San Bruno, California, see https://www. guidestar.org/profile/85-3096953,