Opinion
CV 21-1645 MCS (PVC)
05-06-2022
CONSTANTINE S. ANANIADES, Plaintiff, v. FRANK N. KENDALL III, Secretary, United States Department of the Air Force, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
MARK C. SCARSI, UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint in the above-captioned matter, Defendant's Motion to Dismiss, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, and Plaintiff's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
In the Objections, Plaintiff asserts that the First Amended Complaint can be amended to assert a Fifth Amendment due process claim against Defendant, the current Secretary of the United States Air Force, under 42 U.S.C. § 1983. (Obj. at 12). This assertion reflects a fundamental misunderstanding of the scope of a § 1983 claim. As the Report and Recommendation explained, (R&R at 22), to state a claim under § 1983, “a plaintiff must allege the violation of a right secured by the [federal] Constitution . . . committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). Defendant is a federal employee and any actions he allegedly took arose under color of federal law, not state law. Therefore, based on the facts alleged, § 1983 does not apply to Plaintiffs claims and will not provide this Court with federal question jurisdiction under 28 U.S.C. § 1331.
IT IS ORDERED THAT:
1. Defendants' Motion to Dismiss (Dkt. No. 21) is GRANTED IN PART and DENIED IN PART.
2. The First Amended Complaint is DISMISSED, with leave to amend. If Plaintiff wishes to pursue his claims, he must file a Second Amended Complaint within thirty days of the date of this Order.
The Clerk shall serve copies of this Order on Plaintiff at his address of record and on counsel for Defendants.
IT IS SO ORDERED.