Opinion
3:23-cv-00425-AR
06-06-2023
TEREZ LAMAR LINDSEY, Plaintiff, v. DPAUL INC., TORRES SECURITY GROUP, JOHN SECURITY GUARD, TORRES SECURITY GUARD, Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, UNITED STATES MAGISTRATE JUDGE
Plaintiff Terez Lamar Lindsey, representing himself, filed a complaint on March 24, 2023, alleging unspecified claims against four defendants: DPaul Inc., Torres Security Group, John Security Guard, and Torres Security Guard. (Compl., ECF No. 2.) Because his complaint did not establish a basis for this court's subject matter jurisdiction and did not provide enough factual details to support his legal claims, the court issued an Order directing Lindsey to file an amended complaint. (Order Am., ECF No. 5.) Lindsey timely filed an amended complaint on May 17, 2023. (Am. Compl., ECF No. 12.) The amended complaint provides more factual detail to support his legal claims; however, as explained below, it still does not establish the basis for this court's subject matter jurisdiction. For that reason, the court recommends that this action be dismissed.
Lindsey applied for in forma pauperis status, and the court granted his application. (ECF Nos. 1, 5.) Lindsey also moved for appointment of pro bono counsel, and that motion is pending.
BACKGROUND
The following recitation of the facts is taken from Lindsey's amended complaint. (ECF No. 12). On January 14, 2021, Lindsey drove his 1983 Dodge Coachman motorhome RV to the Shari's Restaurant located on NE 122nd Ave. and NE Rafael St. in Portland, where he planned to meet his friend, Debbie, for dinner. When he was driving up to the restaurant, he saw two security guards in the parking lot, though he “paid no attention after [he] saw them, and continued to park [his] motor home.” One of the security guards was a white man named John; the other was named Torres.
Lindsey parked the motor home in the Shari's parking lot and sat in the vehicle, waiting for Debbie to arrive. When Debbie was about thirty minutes late, Lindsey called her and learned that she had an emergency phone call from her son. Lindsey told her that he would be in the back of the restaurant gambling in case she was able to make it. He went into the restaurant and gave his ID to the waitress, who escorted him to the back. There, Lindsey gambled for about two hours with $25. When he was out of money, the waitress escorted him out of the restaurant.
After Lindsey returned to his vehicle, he waited about ten minutes for Debbie, and then heard a knock, like someone was hammering on his door. When Lindsey questioned who was knocking on his door, the security guard, John, responded, “It's security, you need to leave right now. You have been in this motor home for the last two hours.” Lindsey replied, “That's a lie, I've been in Sh[a]ri's restaurant gambling the last two hours.” When John responded that he had seen Lindsey in the motor home during that time, Lindsey replied, “No, you're full of shit, now I know you're lying. Sir, I'm not going to argue with you but I would like your business card because I feel you are harassing me.” John responded, “Oh you want my business card, huh?”
At the time Lindsey was speaking, his door was cracked, but not fully open because he was afraid of John's tone. John gave him a card, and Lindsey told John that he would “get a hold of his higher ups.” Lindsey also shut his door, telling John that he didn't like how he was being treated. Lindsey's door was not locked. As he looked at the card, John shouted “I gave you the wrong fucking card!” John had given Lindsey his security card instead of a business card. Lindsey could not hear John clearly and asked him to repeat himself, to which John responded “you heard me! Give me back my fucking card.” John then opened the door of Lindsey's motor home and entered without permission. He swung his fist toward Lindsey and grabbed the card from Lindsey's hand, striking Lindsey's fist in the process. John exited the motor home and walked away.
Lindsey waited in his motor home for a time, fearful for his safety, then cracked the door to see that John had gone. At this time, Lindsey noticed that the other security guard, Torres, was standing near his vehicle. When Lindsey asked what he had done to deserve that treatment, Torres responded, “I want to apologize for my coworker's actions, and you didn't do anything wrong, and to be honest with you he trespassed when he opened the door without permission and told me he was going to ‘fuck with you.'” Torres said he would be willing to testify on Lindsey's behalf, and gave him his phone number.
After that conversation, Lindsey returned to Shari's restaurant to tell the waitress what had happened. He also went to a nearby WinCo, where he stated that he would like to file an incident report and asked them to save security footage of the incident. Lindsey left the parking lot and called the police to make a report. He informed Officer Sarah Taylor of the incident, explaining that he had been in Shari's as a customer and that he had pain in his hand but had not seen a doctor. Officer Taylor “said that she would charge John with harassment, but not assault” because “even if someone strikes another person, it wouldn't reach the legal threshold for assault.” Lindsey told her that he intended to file an incident report with WinCo and Shari's restaurant, and requested that she get the video footage form WinCo, which she agreed to do.
When Lindsey followed up a week later, Officer Taylor said that she needed more time to finish the report and had not requested the security footage. He began seeking an attorney to help with this case, which was difficult without a police report or video footage. As a homeless, 57-year-old Black man with no money or job, Lindsey felt neglected and unprotected by the legal system. He never received a copy of a police report and, unsure how to proceed, filed this action.
LEGAL STANDARD
Federal law authorizes federal courts to review cases filed in forma pauperis to determine if a claim is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B). Dismissal of a pro se complaint for failure to state a claim “is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). The court construes pro se pleadings liberally and affords the plaintiff “the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). “Unless it is absolutely clear that no amendment can cure” defects in the complaint, “a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).
DISCUSSION
Lindsey's amended allegations provide more factual detail to support his claims, and the court is sympathetic to his experience during the above-described incident. As explained below, however, the court must recommend dismissal of this action because Lindsey's new allegations do not establish a basis for this court to exercise subject matter jurisdiction over his claims.
The United States Constitution and federal law allow only certain kinds of cases in federal court. That limited authority of a federal court is known as its subject matter jurisdiction, and, if a federal court does not have subject matter jurisdiction for a case, the court must dismiss it (in other words, put the case out of its consideration). See Adkison v. C.I.R., 592 F.3d 1050, 1055 (9th Cir. 2010) (Subject matter jurisdiction “refers to a tribunal's power to hear a case.”). The two kinds of cases for which a federal court has jurisdiction are (1) “federal question” cases and (2) “diversity of citizenship” cases. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). This limited jurisdiction is different from Oregon circuit courts, which have subject matter jurisdiction over all actions unless a statute or law divests them of jurisdiction. Owen v. City of Portland, 368 Or. 661, 684 (2021) (“Oregon circuit courts ‘ha[ve] general jurisdiction, to be defined, limited, and regulated by law in accordance with th[e Oregon] Constitution.' Or. Const, Art VII (Original), § 1.”).)
To establish federal question jurisdiction, a plaintiff must plead that defendants have violated a federal constitutional or statutory provision. 28 U.S.C. § 1331; In re Ford Motor Co./Citibank (S. Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001) (The “party asserting federal jurisdiction bears the burden of proving the case is properly in federal court.”). Lindsey alleges that John harassed and assaulted him and that racial bias played a role. However, it is not clear to the court that his allegations raise a federal question, or in other words, assert a violation of a federal law or Constitutional provision.
To the extent that Lindsey attempts to assert claims against John under 42 U.S.C. § 1983, he has not alleged that (1) John deprived him of a federal constitutional right; or that (2) John was acting under color of state law. Stein v. Ryan, 662 F.3d 1114, 1118 (9th Cir. 2011) (listing elements of § 1983 claim). Lindsey does not specify which of his federal constitutional rights were allegedly violated, and because John is alleged to be a private actor, the court cannot infer that his actions were taken under color of state law. Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir. 1999) (explaining that, when a constitutional claims is asserted against a private actor, the plaintiff must show that some government action is “fairly attributable” to the private defendant). Thus, Lindsey has not established federal jurisdiction.
Section 1983 is a federal statute that provides a cause of action for those whose constitutional rights have been violated by a person acting “under color of any statute, ordinance, regulation, custom, or usage” of state law. 42 U.S.C. § 1983; Albright v. Oliver, 510 U.S. 266, 271 (1994) (explaining that § 1983 “is not itself s source of rights, but merely provides a method for vindicating federal rights elsewhere conferred”).
Likewise, Lindsey does not properly assert diversity of citizenship jurisdiction. To establish diversity jurisdiction, a plaintiff must plausibly allege that damages are more than $75,000, that he is a citizen of one state, and that all the defendants are citizens of other states. 28 U.S.C. § 1332(a); Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1199 (9th Cir. 2015) (plaintiff “bears the burden to show that its estimated amount in controversy relies on reasonable assumptions”). Satisfaction of that $75,000 damages threshold-which is also known as the “amount in controversy” requirement-must be “facially evident” from the complaint and cannot be supported by simple conclusory allegations. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090-91 (9th Cir. 2003). An issue is “facially evident” if it can be understood and reasonably determined simply by reading the complaint.
Lindsey does not specify the damages that he seeks. Additionally, his allegations do not provide any details from which the court could infer that Lindsey and the defendants are of diverse citizenship. Thus, he has not plausibly established diversity jurisdiction.
CONCLUSION
Lindsey previously was provided an opportunity to correct the deficiencies in his complaint. In its Order to Amend, the court explained that his complaint failed to state plausible claims and failed to establish a basis for this court's jurisdiction. Although Lindsey has filed an amended complaint that provides more factual detail regarding his claims, those new facts do not establish a basis on which the court could exercise subject matter jurisdiction over his claims. The court concludes that additional factual details would not be sufficient to establish subject matter jurisdiction necessary to bring this action in federal court and that leave to amend would be futile. Accordingly, the court recommends that Lindsey's amended complaint (ECF No. 12) be DISMISSED without leave to amend and that any pending motions be denied as MOOT.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.