Angel v. Eldorado Casino, Inc.

Full title: RANDALL GEORGE ANGEL, Plaintiff, v. ELDORADO CASINO, INC.; JAMES RUSSELL…

Court: United States District Court, D. Nevada

Date published: Apr 25, 2008

3:07-cv-00503-BES-VPC (D. Nev. Apr. 25, 2008)

Opinion

3:07-cv-00503-BES-VPC.

April 25, 2008

ORDER

BRIAN SANDOVAL, District Judge

Presently before this court is a Motion to Dismiss (#19) filed by Defendants Eldorado Casino, Inc. ("Eldorado"), James Russell ("Russell") and Timothy Jacobs ("Jacobs") (collectively "Defendants"). Plaintiff filed an Opposition (#23) and Defendants filed a Reply (#25). Defendants' motion is directed to Plaintiff's Complaint (#4) filed on November 16, 2007. However, after the Motion to Dismiss was fully briefed, Plaintiff filed an Amended Complaint (#32) on March 6, 2008. Unlike the original Complaint, the Amended Complaint does not name any John Doe defendants, does not reference certain Nevada statutory claims, and does not include exhibits. In all other respects, however, the two pleadings are identical and contain virtually the same factual allegations against Defendants. (Compare Complaint (#4) with Am. Complaint (#32)).

As a general rule, once an amended pleading is filed, the original pleading no longer serves any function in the case. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9^th Cir. 1992); see also Loux v. Rhay, 375 F.2d 55, 57 (9^th Cir. 1967) (an amended complaint supersedes the original complaint). Thus, Defendants' Motion to Dismiss (#19) has been rendered moot because this action is now proceeding on Plaintiff's Amended Complaint. Cognizant of the procedural posture of their original Motion, Defendants filed a Motion to Dismiss Amended Complaint (#33) on March 19, 2008. In response, Plaintiff filed an Opposition (#35) and Defendants filed their Reply (#37).¹ Plaintiff then filed a Supplement to Opposition to Motion to Dismiss Amended Complaint (#39) and a Reply to Defendants' Reply (#40).²

1 Defendants have incorporated and rely upon their original Motion to Dismiss and Reply.

2 Defendants filed a Motion to Strike Plaintiff's Supplement to Opposition to Motion to Dismiss and Plaintiff's Reply to Defendants' Reply Supporting Motion to Dismiss (#43), requesting that the Court strike documents #39 and #40, on the basis that these pleadings were filed without leave of the Court and contrary to any authority to do so. Neither FRCP 12 nor LR 7-2 authorizes the filing of supplemental pleadings "[u]nless otherwise ordered by the court." Accordingly, the Court has not considered Plaintiff's supplemental pleadings and grants Defendants' Motion to Strike.

I. BACKGROUND

This action arises out of an incident that occurred at the Eldorado on November 23, 2006. According to Defendants, Plaintiff was found sleeping in one the casino's restrooms after he had previously been removed from the Eldorado. Plaintiff was allegedly removed from the restroom by Defendants Russell and Jacob, who work at the Eldorado as security guards. Russell and Jacob allegedly handcuffed Plaintiff and placed him in a holding room, where Plaintiff was then allegedly hit and kicked several times by five Eldorado security guards.

Plaintiff initiated this action on November 16, 2007 by filing a pro se complaint. In an Amended Complaint (#32) filed on March 6, 2008, Plaintiff broadly asserts two claims under 42 U.S.C. § 1983. Plaintiff alleges that Defendants violated his Fourth Amendment rights in two ways: (1) by unreasonably seizing Plaintiff; and (2) by subjecting Plaintiff to excessive force. Defendants seek dismissal of the Amended Complaint under FRCP 12(b)(6).

II. ANALYSIS

In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the court must accept as true all material allegations in the complaint as well as all reasonable inferences that may be drawn from such allegations. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 (9th Cir. 2000). The allegations of the complaint also must be construed in the light most favorable to the nonmoving party. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). However, there is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). Thus, upon being adequately stated, a claim may be supported by showing "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007) (citation omitted). However, the factual allegations included in a complaint "must be enough to raise a right to relief above the speculative level."Id. at 1964-65. "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. at 1965.

Because Plaintiff is a pro se litigant, the Court must construe liberally his inartful pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9^th Cir. 1987). Thus, the Court must decide whether it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief, even when his claims are liberally construed. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9^th Cir. 1984). Applying these principles, the Court now considers whether Plaintiff's action survives Defendants' Motion to Dismiss.

A. Private Party Liability Under 42 U.S.C. § 1983

To state a claim under § 1983, a plaintiff must allege: (1) a deprivation of rights, privileges, or immunities secured by the Constitution or federal statute and (2) that the defendant acted under color of state law. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). As a general matter, it is presumed that private parties are not acting under the color of state law for purposes of § 1983. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9^th Cir. 2003) (plaintiff's allegations insufficient to establish that a private party is a state actor under § 1983);see also Price v. Hawaii, 939 F.2d 702, 708 (9^th Cir. 1991) ("private parties are not generally acting under color of state law."). Purely private conduct, no matter how wrongful, is not covered under § 1983. See Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9^th Cir. 1974). Simply put, there is no right to be free from the infliction of constitutional deprivations by private individuals or entities.See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9^th Cir. 1996).

Here, Plaintiff alleges that Defendants, a private company and two of its employees, were "working under color of law." However, Plaintiff has not alleged facts showing that Defendants acted under color of state law. The Ninth Circuit applies four different tests to identify state action: "(1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus." Kirtley, 326 F.3d at 1092 (citations omitted). Satisfaction of any one test is sufficient to find state action, so long as no countervailing factor exists. Id. Although it is clear that Plaintiff's Amended Complaint fails to present any facts relevant to these state action tests, each test is discussed herein.

1. Public Function Test

"Under the public function test, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations." Id. at 1094 (quoting Lee v. Katz, 276 F.3d 550, 554-55 (9^th Cir. 2002)). The public function test is satisfied only by a showing that the function at issue is "both traditionally and exclusively governmental." Id. Even taking all allegations in the Amended Complaint as true, as this Court must, there is no basis upon which the Court can conclude that Defendants are endowed with powers or functions that are traditionally governmental in nature. Accordingly, Defendants are not state actors under the public function test.

2. Joint Action Test

"A plaintiff may demonstrate joint action by proving the existence of a conspiracy or by showing that the private party was `a willful participant in joint action with the State or its agents.'" Franklin v. Fox, 312 F.3d 423, 445 (9^th Cir. 2002). However, the Ninth Circuit requires "a substantial degree of cooperation" before imposing liability on private parties for acting jointly with state actors. Id.; Collins v. Womancare, 878 F.2d 1145, 1155 (9^th Cir. 1989) ("merely complaining to the police does not convert a private party into a state actor").

Taking all Plaintiff's allegations as true, the facts alleged by Plaintiff fail as a matter of law to satisfy the joint action test for private party liability under § 1983. The circumstances of this case do not establish that any government actors "so far insinuated [themselves] into a position of interdependence with [Defendants] that they must be recognized as a joint participant in the challenged activity." Collins, 878 F.2d at 1155.

3. Compulsion Test

The compulsion test considers whether the "coercive influence" or "significant encouragement" of the state effectively converts private action into government action. Kirtley, 326 F.3d at 1094. In cases involving a private defendant, the issue is typically whether the defendant is liable for following a statute or government regulation. Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9^th Cir. 1999). Plaintiff fails to assert a requisite state coercive influence or significant encouragement. Accordingly, Defendants are not state actors based on the compulsion test.

4. Government Nexus Test

The government nexus test asks whether "there is such a close nexus between the State and the challenged action that the seemingly private behavior may be fairly treated as that of the State itself." Kirtley, 326 F.3d at 1095 (quoting Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001)). "The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Id. The Court finds that, taking all allegations as true and construing them in the light most favorable to Plaintiff, Plaintiff has failed to show the existence of any nexus between the state and the challenged action to treat Defendants' conduct as that of the state.

Because Plaintiff has failed to establish that Defendants' alleged conduct constitutes state action, Plaintiff's § 1983 causes of action must be dismissed.

B. Dismissal Without Leave to Amend

In general, before dismissing a pro se complaint for failure to state a claim, a district court should give a pro se litigant leave to amend the complaint and a statement explaining the complaint's deficiencies. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623-24 (9^th Cir. 1988). Leave to amend is not required, however, where it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.Karim-Panahi, 839 F.2d at 623; see also Shermoen v. United States, 982 F.2d 1312, 1319 (9th Cir. 1992) ("`[A] district court does not err in denying leave to amend where the amendment would be futile.'"). Moreover, where the plaintiff has previously filed an amended complaint, as in this case, the Court's discretion to dismiss without leave to amend is "particularly broad." Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004).

Plaintiff has not suggested that any amendment could provide additional facts that might sustain his claims, and it is difficult to conceive of such an amendment. Consequently, Plaintiff's action is dismissed without leave to amend.

III. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Amended Complaint (#33) is GRANTED. IT IS FURTHER ORDERED that Defendants' Motion to Strike Plaintiff's Supplement to Opposition to Motion to Dismiss and Plaintiff's Reply to Defendant's Reply Supporting Motion to Dismiss (#43) is GRANTED.

In light of this ruling, IT IS FURTHER ORDERED that the following pending motions are DENIED AS MOOT:

• Motion to Dismiss (#19)

• Motion for Required Joinder of Parties (#36)

• Motion for Publication (#38)