Dawkins v. Dep't of Econ. Sec.

Full title: Elkino Denardo Dawkins, Sr., Plaintiff, v. Department of Economic…

Court: United States District Court, District of Arizona

Date published: Feb 6, 2023

22-cv-00458-RM (D. Ariz. Feb. 6, 2023)

Opinion

22-cv-00458-RM

02-06-2023

Elkino Denardo Dawkins, Sr., Plaintiff, v. Department of Economic Security, Defendant.

Honorable D. Thomas Ferraro, United States Magistrate Judge

REPORT AND RECOMMENDATION

Honorable D. Thomas Ferraro, United States Magistrate Judge

This case has been referred to the undersigned magistrate for a report and recommendation. (Doc. 11.) The Court screened Plaintiff's First Amended Complaint and found it failed to state a claim. (Doc. 14.) Thus, the Court ordered provided leave to amend within 30 days of the order being filed. Id. at 5. The Court warned Plaintiff that failure to amend would result in a Report and Recommendation recommending that this matter be dismissed without prejudice. Id. Plaintiff failed to amend. Hence, the Court recommends dismissing this action without prejudice.

Original Complaint

On October 4, 2022, Plaintiff filed his complaint. (Doc. 1.) The Court screened the Complaint and found that Plaintiff had not stated a claim. (Doc. 5.) Specifically, the Court explained the following:

"To state a claim under § 1983, a plaintiff [1] must allege the violation of a right secured by the Constitution and laws of the United States, and [2] must show that the alleged deprivation was committed by a person acting under color of state law" Naffe v. Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015). Entities may not be vicariously liable under § 1983. Id.

at 1035 n.1. Moreover, "[s]tates or governmental entities that are considered 'arms of the State' for Eleventh Amendment purposes are not 'persons' under § 1983." Cornel v. Hawaii, 37 F.4th 527, 531 (9th Cir. 2022).

Here, Plaintiff brings action against the Arizona Department of Economic Security. (Doc. 1.) He alleges he was denied renewal of food stamps after an employer did not comply with the inquiry. Id. at 4. As "arms of the State," the Arizona Department of Economic Security are not "persons" under § 1983. Johnson v. Maricopa Cnty. Sheriffs Dep't, No. CV2100520PHXSRBMTM, 2021 WL 5917330, at *2 (D. Ariz. Oct. 12, 2021). Further, Plaintiff does not allege a violation of a right secured by the Constitution or the laws of the United States. For both reasons, any § 1983 claim fails.

To the extent Plaintiff attempted to allege discrimination, it is unclear what the basis of the discrimination is alleged to be. Plaintiff provides no facts relating to alleged basis of discrimination. It is mentioned in the jurisdiction section. (Doc. 1 at 3.) Thus, any discrimination claim must be dismissed. The Court will dismiss the complaint with leave to amend.

Id. at 2-3.

First Amended Complaint

On November 2, 2022, Plaintiff filed his First Amended Complaint. (Doc. 13.) It suffered from many of the same issues as the Original Complaint. On December 19, 2022, The Court screened the First Amended Complaint. (Doc. 14.) First, the Court noted that service had not been properly effectuated. Id. at 1. Then, the Court examined the merits of the First Amended Complaint. Id. at 3-4.

To vindicate a Fourth Amendment violation against a state action, a plaintiff may bring suit under 28 U.S.C. § 1983. Ballinger v. City of Oakland, 24 F.4th 1287, 1300 (9th Cir. 2022). To state a claim under § 1983, a plaintiff [1] must allege the violation of a right secured by the Constitution and laws of the United States, and [2] must show that the alleged deprivation was committed by a person acting under color of state law" Naffe v. Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015). Entities may not be vicariously liable under § 1983. Id. at 1035 n.1. Moreover, "[s]tates or governmental entities that are considered 'arms of the State' for Eleventh Amendment purposes are not 'persons' under § 1983." Cornel v. Hawaii, 37 F.4th 527, 531 (9th Cir. 2022).

The Fourth Amendment of the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Hence, the Fourth Amendment protects against "unreasonable searches and seizures." Id. A "search" is the infringement of a person's reasonable "expectation of privacy." United States v. Tosti, 733 F.3d 816 at 821 (9th Cir. 2013) (quoting United States v. Jacobsen, 466 U.S. 109, 117 (1984)). A "seizure" is a "meaningful interference with [a person's] possessory interest in [their] property." Ballinger, 24 F.4th at 1300 (second alteration in Battinger) (quoting Jacobsen, 466 U.S. at 113).

Here, the Court previously ordered Plaintiff to file a First Amended Complaint, which Plaintiff did on November 2, 2022. (Docs. 5, 133 The First Amended Complaint alleges the Department of Economic Security "turned off [Plaintiff's] government-issued phone, denied [him] food stamps, and retained a [sic] eight-year hold on [his] pension check." (Doc. 13 at 4.) Plaintiff asserts this violates his rights under the Fourth Amendment. Id.

Plaintiff again names the Arizona Department of Economic Security as the sole defendant. (Doc. 13.) The Court previously explained that "[a]s 'arms of the State,' the Arizona Department of Economic Security are not 'persons' under § 1983." (Doc. 5 at 3 (citing Johnson v. Maricopa Cnty. Sheriffs Dep't, No. CV2100520PHXSRBMTM, 2021 WL 5917330, at *2 (D. Ariz. Oct. 12, 2021).) Thus, Plaintiff again failed to state a § 1983 claim because he has not sued a person and the agency may not be vicariously liable.

Further, it is unclear what the substance of his Fourth Amendment allegation would be. (Doc. 13 at 4.) Plaintiff has not provided sufficient facts to plausible claim there was an unreasonable search or seizure. It is unclear from the First Amended Complaint because it does not provides sufficient facts to determine what the alleged unreasonable search or seizure would be. (Doc. 13.)

(Doc. 14 at 3-4.) Thus, Plaintiff did not state a claim in his First Amended Complaint. The Court provided Plaintiff with 30 days in which to file a Second Amended Complaint. Id. at 3-4. The Court warned that it would "issue a Report and Recommendation recommending that the Complaint be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)." Id. at 4. Further, the Court stated

Failure of Plaintiff to timely comply with Orders of this Court may result in the dismissal of Plaintiff's Complaint without prejudice by the District Judge pursuant to Rules 12(b)(1), (6), (h)(3), 41, Fed. R. Civ. P.; 28 U.S.C. § 1915(e)(2)(B)(iii); and/or pursuant to the Court's inherent power. Ferdik, 963 F.2d at 1260 (stating trial courts have inherent power to control their docket and, in exercise of that power, may impose sanctions including, where appropriate, dismissal of case)."

Id. He has not filed a Second Amended Complaint. Thus, the Court recommends that the matter be dismissed and that the case be closed.

Recommendation

Plaintiff has failed to state a claim for relief or file a Second Amended Complaint. Hence, it is recommended that the district court order this matter dismissed and close this case.

Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).