United States District Court, D. Idaho
INITIAL REVIEW ORDER
Lynn Winmill U.S. District Court Judge.
Clerk of Court conditionally filed Plaintiff Michael
Hunter's Complaint because of Plaintiff's request to
proceed in forma pauperis. Now before the Court are
Plaintiff's Application to Proceed Without Payment of
Fees (Dkt. 1), Plaintiff's Motion for Temporary
Restraining Order (Dkt. 3) and Plaintiff's Amended
Complaint (Dkt. 5). Initially, the Court must screen
Plaintiff's complaint as required by 28 U.S.C. §
1915(e)(2). For the reasons explained below, the Court finds
that Plaintiff has not plausibly alleged colorable claims
under 42 U.S.C. § 1983, and will therefore dismiss the
case, and deny Plaintiff's remaining motions as moot.
Court is required to screen complaints brought by litigants
who seek in forma pauperis status. See 28 U.S.C.
§ 1915(e)(2). Plaintiff's Complaint, or a portion
thereof, will be dismissed if it: (1) is frivolous or
malicious; (2) fails to state a claim upon which relief can
be granted; or (3) seeks monetary relief from a defendant who
is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(i-iii). To state a claim upon which relief can
be granted, plaintiff's complaint must include facts
sufficient to show a plausible claim for relief. See
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). To state
a claim under § 1983, a plaintiff must allege a
violation of rights protected by the Constitution or created
by federal statute proximately caused by conduct of a person
acting under color of state law. Crumpton v. Gates,
947 F.2d 1418, 1420 (9th Cir.1991)
this initial review, courts generally construe pro se
pleadings liberally, giving pro se plaintiffs the benefit of
any doubt. See Resnick v. Hayes, 213 F.3d 443, 447
(9th Cir. 2000). Additionally, if amending the complaint
would remedy the deficiencies, plaintiffs should be notified
and provided an opportunity to amend. See Jackson v.
Carey, 353 F.3d 750, 758 (9th Cir. 2003).
Michael Hunter brings a civil rights action under 42 U.S.C.
§ 1983 to “redress the deprivation” of his
First Amendment rights under the color of state law by the
Defendants identified as Deputy Odegnko, Deputy Hoan,
Kootenai County Sheriff, and Walmart, Inc. Dkt. 5 at 2-3. Mr.
Hunter alleges that the Defendants are “using a state
law and overbroad [sic] to reach and punish his
freedom of speech” and that “law requires he can
solicit for funds both business [sic] and for his
own needs.” Id.; Dkt. 3-1 at 2. The Amended
Complaint alleges that Defendants-presumably the two
sheriff's deputies named as defendants-“wrote a
$61.00 ticket punishment” while he was attempting to
“visit to Walmart to pay a $74.00 debt.” Dkt. 5
at 4. Plaintiff appears to include Walmart as a defendant
because Walmart “told police for no valid or justified
excuse plaintiff was not permitted on property and this was
purposed to aid police illegal actions and damaged plaintiff
so he could not repair his car.” Id.
Plaintiff filed an Amended Complaint to include the names of
the specific sheriff's deputies who issued him the
ticket, he has not alleged sufficient facts to state a
plausible claim for relief. To state a claim for relief under
§ 1983 a plaintiff must allege: “(1) a violation
of rights protected by the Constitution or created by federal
statute, (2) proximately caused (3) by conduct of a
‘person' (4) acting under color of state
law.” Crumpton, 947 F.2d at 1420. Or, more
simply, courts have required plaintiffs to “plead that
(1) the defendants acting under color of state law (2)
deprived plaintiffs of rights secured by the Constitution or
federal statutes.” Gibson v. United States,
781 F.2d 1334, 1338 (9th Cir. 1986).
Defendant Walmart, Inc.
Court first notes that Mr. Hunter cannot state a claim for
relief under § 1983 against Walmart, Inc. Walmart is a
private corporation, and Mr. Hunter's Amended Complaint
does not allege that Walmart is in any way a state actor.
“Only in rare circumstances can a private party be
viewed as a ‘state actor' for section 1983
purposes.” Price v. Hawaii, 939 F.2d 702,
707-08 (9th Cir.1991) (holding private parties are not
generally acting under color of state law). Because Mr.
Hunter has not alleged that Defendant Walmart, Inc. acted
under color of state law, the Court will dismiss the claims
Law Enforcement Defendants
Hunter also names two Kootenai County Sheriff's Deputies
and the Kootenai County Sheriff as Defendants. Dkt. 5 at 1.
But Mr. Hunter's Amended Complaint fails to state a claim
for relief against these Defendants as well. To state a claim
for relief under § 1983 for deprivation of a
constitutional right, a plaintiff must allege that the
Defendant “does an affirmative act, participates in
another's affirmative act, or omits to perform an act
which he is legally required to do that causes the
deprivation of which complaint is made.'”
Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479
F.3d 1175, 1183 (9th Cir. 2007). If a plaintiff brings a
claim against a supervisor, as the Court assumes Mr. Hunter
does against the Sheriff, the plaintiff must allege
“the supervisor participated in or directed the
violations, or knew of the violations and failed to act to
prevent them. There is no respondeat superior liability under
[§] 1983.” Taylor v. List, 880 F.2d 1040,
1045 (9th Cir. 1989).
the alleged violation of First Amendment rights occurred when
Defendants Deputy Odegnko and Deputy Hoan wrote Mr. Hunter a
$61.00 ticket sometime in June, 2019. Dkt. 5 at 3-4.
“[T]o demonstrate a First Amendment violation, a
plaintiff must provide evidence showing that ‘by his
actions [the defendant] deterred or chilled [the
plaintiff's] political speech and such deterrence was a
substantial or motivating factor in [the defendant's]
conduct.'” Lacey v. Maricopa Cty., 693
F.3d 896, 916 (9th Cir. 2012). Mr. Hunter need not show his
“speech was actually inhibited or suppressed”
Id. Rather, the Court considers “whether an
official's acts would chill or silence a person of
ordinary firmness from future First Amendment
activities.” Id. Mr. Hunter's Amended
Complaint does not allege any facts describing the basis for
the ticket, the authority the Defendants cited in the ticket,
or how the ticket burdens Mr. Hunter's First Amendment
rights. Id. at 4-5. Without more, the Court has no
way to evaluate whether the Deputies' actions- whatever
they may have ...