Opinion
Civil No. 05cv-271 JM (WMc).
September 23, 2005
Plaintiff, a nonprisoner proceeding pro se, submitted a civil rights complaint pursuant to 42 U.S.C. § 1983, arising out of a state court unlawful detainer action. In an order dated February 11, 2005, this Court granted Plaintiff In Forma Pauperis ("IFP") status, and dismissed the complaint for failure to state a claim after conducting the initial screening mandated by 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff thereafter filed three amended complaints, each of which were dismissed for continued failure to state a federal claim. Plaintiff filed a fourth amended complaint on July 22, 2005.
Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). As currently pleaded, it appears that Plaintiff's fourth amended complaint is still subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which section 1983 relief may be granted.
In the fourth amended complaint, Plaintiff alleges that Defendants deprived him of his rights to equal protection and due process under the Fourteenth Amendment by discriminating against him based on his race. Plaintiff fails, however, to set forth how Defendants Genmar Real Estate, Peter Marx, Theodore M. Smith, or Bernadette E. Probus, acted under color of state authority. Plaintiff also fails to state a claim against Defendant San Diego Housing Commission under Monell v. Department of Social Services, 436 U.S. 658 (1978). As currently pleaded, the fourth amended complaint lacks any cognizable federal constitutional claim. If Plaintiff does not sufficiently set forth the basis for holding these defendants liable, the court will construe such a failure as an inability to state a federal claim and will dismiss the claim without leave to amend.
Conclusion and Order
Accordingly, IT IS HEREBY ORDERED that the amended complaint is DISMISSED without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). If Plaintiff still wishes to continue to proceed with this matter he must, within thirty (30) days: (1) SUBMIT A FIFTH AMENDED COMPLAINT WHICH ADDRESSES THE DEFICIENCIES OF PLEADING SET FORTH ABOVE; AND (2) ATTACH A COPY OF THE INITIAL ORDER GRANTING IFP STATUS.
IT IS SO ORDERED.