# Banuelos v. Reyes

> District Court, E.D. California · July 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10020810

## Case

- **Court:** District Court, E.D. California
- **Decided:** July 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10020810

## How later opinions describe it (automated extraction)

- holding that a defendant must have acted “under color 9 of law” to be held liable under § 1983
- holding that a defendant must have acted “under color 9 of law” to be held liable under § 1983

## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 EASTERN DISTRICT OF CALIFORNIA
6
7 ROBERT BANUELOS, Case No. 1:19-cv-01328-DAD-BAM

8 Plaintiff,
SCREENING ORDER GRANTING
9 v. PLAINTIFF LEAVE TO FILE AN AMENDED
COMPLAINT
10 ANTHONY TONY REYES,

11 Defendant.

12
13 Plaintiff Robert Banuelos (“Plaintiff”), proceeding pro se and in forma pauperis, filed this
14 civil rights action on September 23, 2019. (Doc. No. 1.) Plaintiff’s complaint is currently before
15 the Court for screening.
16 I. Screening Requirement and Standard
17 The Court screens complaints brought by persons proceeding in pro se and in forma
18 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to
19 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be
20 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28
21 U.S.C. § 1915(e)(2)(B)(ii).
22 A complaint must contain “a short and plain statement of the claim showing that the
23 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
24 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
25 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
26 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as
27 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,
28 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
1 To survive screening, Plaintiff’s claims must be facially plausible, which requires
2 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
3 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret
4 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
5 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
6 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
7 II. Plaintiff’s Allegations
8 Plaintiff names Anthony Tony Reyes as a defendant. In his form complaint, Plaintiff
9 asserts a claim under 42 U.S.C. § 1983 for violation of his Eighth and Fourteenth Amendment
10 rights.
11 Plaintiff alleges that he and his son were forced out of his grandmother’s residence in
12 2007. Plaintiff was alleged to have a hit on him. Plaintiff was employed and reconciled with his
13 wife but went to prison due to domestic violence charges. He was poisoned and almost killed.
14 From 2010 to 2013 Plaintiff was homeless and slept on the sidewalk. Plaintiff was jumped and
15 suffered a cheek bone fracture and skull line fracture. In 2012, Plaintiff was assaulted by gang
16 members. From 2012 through 2016 Plaintiff’s son was placed in foster care. In 2014, Plaintiff
17 took care of his grandfather who passed away in 2016. From 2016 through 2019 Anthony Reyes
18 took over the property and verbally assaulted Plaintiff, threatened him, and was disrespectful. In
19 2019, the property was placed in probate and Plaintiff was wrongfully evicted. Plaintiff alleges
20 that he underwent pain and suffering and was left homeless without cause.
21 In his request for relief, Plaintiff requests $95,000.00 in monetary compensation and a
22 copy of a deed of ownership.
23 III. Discussion
24 Plaintiff’s complaint does not comply with Federal Rule of Civil Procedure 8 and fails to
25 state a cognizable claim for relief. As Plaintiff is proceeding pro se, he will be granted leave to
26 amend his complaint to cure the identified deficiencies to the extent he can do so in good faith.
27 To assist Plaintiff, the Court provides the pleading and legal standards that appear relevant to his
28 allegations.
1 A. Federal Rule of Civil Procedure 8
2 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain
3 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed
4 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
5 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
6 omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to
7 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
8 While factual allegations are accepted as true, legal conclusions are not. Id.; see also Twombly,
9 550 U.S. at 556–557.
10 As a basic matter, the complaint lacks clear factual allegations regarding the incident at
11 issue. Plaintiff alleges a chronology of events and circumstances from 2007 through 2019 but it
12 is unclear how, if at all, many of these allegations relate to Plaintiff’s claims. Plaintiff’s complaint
13 is confusing, convoluted, and fails to set forth the facts in a comprehensible manner. The
14 complaint does not clearly articulate the facts giving rise to Plaintiff’s claims and is instead filled
15 with opaque, scattershot, and seemingly unrelated factual allegations and generalized statements.
16 This is not permissible because it does not give the defendant “fair notice” of the claims against
17 which he must defend and the facts and legal theories that give rise to the claims. See Fed. R. Civ.
18 P. 8(a)(2).
19 Plaintiff is cautioned that any amended complaint must comply with Federal Rule of Civil
20 Procedure 8 by clearly and succinctly stating what happened, when it happened, and how the
21 defendant was involved.
22 B. Private Parties
23 Plaintiff alleges violation of his Eighth and Fourteenth Amendment rights pursuant to 42
24 U.S.C. § 1983. Although Anthony Tony Reyes is identified in the caption of the complaint, the
25 portion of the form complaint where Plaintiff was instructed to list the name, position, title, and
26 institution of each defendant is left blank. (See Doc. No. 1 at 2.)
27 It is not clear from the complaint whether the defendant was acting under color of state
28 law as is required for a claim pursuant to section 1983. See O'Guinn v. Lovelock Corr. Ctr., 502
1 F.3d 1056, 1060 (9th Cir. 2007) (allegation of state action is “necessary element of a § 1983
2 claim”). Generally, private parties do not act under color of state law for section 1983 purposes.
3 See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). Indeed, the law presumes that conduct
4 by private actors is not state action. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916,
5 922 (9th Cir. 2011). The ultimate issue in determining whether a person is subject to suit under a
6 federal civil rights action is whether the alleged infringement of federal rights is fairly attributable
7 to the government. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); see also Huffman v. Cty. of
8 L.A., 147 F.3d 1054, 1057 (9th Cir. 1998) (holding that a defendant must have acted “under color
9 of law” to be held liable under § 1983). Simply put, section 1983 “excludes from its reach merely
10 private conduct, no matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v.
11 Sullivan, 526 U.S. 40, 50 (1999) (citations and internal quotations omitted).
12 A private party may, under limited circumstances, act under the color of state law when
13 “he is a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S.
14 24, 27 (1980). The Ninth Circuit recognizes “at least four different criteria, or tests, used to
15 identify state action: ‘(1) public function; (2) joint action; (3) governmental compulsion or
16 coercion; and (4) governmental nexus.’” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)
17 (quoting Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999)).
18 “Satisfaction of any one test is sufficient to find state action, so long as no countervailing factor
19 exists.” Id. But under any of the four tests, “the central question remains whether the alleged
20 infringement of federal rights [is] fairly attributable to the government.” Id. at 1096 (internal
21 quotation marks omitted). Courts have held that an eviction by a private actor may become state
22 action only where police are involved “every step of the way.” Anderson v. Lomas, 2011 WL
23 5190044, at *4 (N.D. Cal. Oct. 31, 2011) (citation omitted); see also Howerton v. Gabica, 708
24 F.2d 380, 385 (9th Cir. 1983) (“A single request for the police to perform their peace-keeping
25 functions may not be sufficient to make a landlord a ‘joint actor’ with the state for section 1983
26 purposes.”).
27 Plaintiff has not stated any factually plausible allegations that the defendant was acting
28 under color of state law or that he engaged in any infringements of federal rights that are fairly
1 attributable to the government. As an initial matter, it is unclear that an eviction even took place
2 as there are no allegations in the complaint of a written agreement or lease or other facts
3 indicating that a landlord-tenant relationship existed between Plaintiff and the defendant.
4 Plaintiff also has not alleged any police involvement in the eviction process, much less that police
5 were involved “every step of the way” such that the defendant was proceeding under color of
6 state law. Accordingly, Plaintiff has failed to state a cognizable claim under section 1983 against
7 Anthony Tony Reyes.
8 C. Rooker-Feldman Doctrine
9 It is not clear from the allegations whether Plaintiff is challenging a state court judgment
10 in a probate or unlawful detainer action and/or the subsequent enforcement of the judgment
11 through a writ of possession. However, to the extent Plaintiff intends to bring such a challenge, he
12 may not do so.
13 This Court lacks subject matter jurisdiction to review the final determinations of state
14 court proceedings. See, e.g., Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th
15 Cir.1986) (“The United States District Court ... has no authority to review the final determinations
16 of a state court in judicial proceedings.”). Under the Rooker-Feldman doctrine, a federal district
17 court does not have subject-matter jurisdiction to hear an appeal from the judgment of a state
18 court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005); see also
19 Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity
20 Trust Co., 263 U.S. 413, 415 (1923). Therefore, under the Rooker–Feldman doctrine, the Court is
21 precluded from reviewing an unlawful detainer judgment and its execution. Busch v. Torres, 905
22 F. Supp. 766, 771 (C.D. Cal. 1995); see also Dang v. Oakland Police Dep’t, 2014 WL 793613, at
23 *7 (N.D. Cal. Feb. 26, 2014) (reasoning that Rooker-Feldman barred challenge to the writ of
24 possession issued by the state court fulling judgment in an unlawful detainer action); Drawsans v.
25 F.F. Props., L.L.P., 866 F.Supp.2d 1110, 1123 (N.D. Cal.2011) (holding that an attempt to
26 challenge adverse ruling in unlawful detainer proceeding is barred under Rooker-Feldman
27 doctrine); Reusser v. Wachovia Bank, N.A., 2006 WL 2334844 at *2–3 (D. Or. Aug. 10, 2006)
28 (finding that claims challenging the validity of state court foreclosure and eviction judgments
1 were barred by Rooker–Feldman doctrine).
2 Therefore, to the extent Plaintiff intends to challenge a state court order regarding his
3 eviction, his claims are barred by the Rooker-Feldman doctrine.
4 D. Eighth Amendment
5 Plaintiff’s complaint alleges that his constitutional rights arising under the Eighth
6 Amendment were violated. The Eighth Amendment's prohibition on cruel and unusual
7 punishment places restraints on the actions of prison officials against prisoners. See Farmer v.
8 Brennan, 511 U.S. 825 (1994); Hudson v. McMillian, 503 U.S. 1 (1992). “In the few cases where
9 the Court has had occasion to confront claims that impositions outside the criminal process
10 constituted cruel and unusual punishment, it has had no difficulty finding the Eighth Amendment
11 inapplicable.” Ingraham v. Wright, 430 U.S. 651, 667–68 (1977); see also Hawkins v. Comparet–
12 Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001).
13 Here, even construing the complaint liberally, it is difficult to discern from the complaint
14 which, if any, of Plaintiff’s rights arising under the Eighth Amendment were violated or what
15 affirmative act or omission each defendant committed to cause such a violation. While Plaintiff
16 alleges that he was incarcerated at some point, this period of incarceration does not appear to have
17 any relation to the eviction which appears to form the basis of his complaint. Plaintiff does not
18 allege any facts indicating the defendant caused him to suffer inhumane methods of punishment
19 or inhumane conditions of confinement while he was a prisoner. Plaintiff has therefore failed to
20 state a cognizable claim for violation of his Eighth Amendment rights pursuant to section 1983
21 against defendant Anthony Tony Reyes.
22 E. Fourteenth Amendment
23 Plaintiff additionally alleges a violation of his rights arising under the Fourteenth
24 Amendment. It appears that Plaintiff may be alleging a violation of his procedural due process
25 rights. However, the nature of this claim is unclear. Out of an abundance of caution, the Court
26 nevertheless provides Plaintiff with the standard for a procedural due process claim under the
27 Fourteenth Amendment.
28
1 The Due Process Clause of the Fourteenth Amendment guarantees that “[n]o State shall ...
2
deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend
3
XIV. Procedural due process claims are examined under a two-part analysis. Shapiro v. Suvorov,
4
2014 WL 1347180, at *4 (C.D. Cal. Apr. 4, 2014). First, the Court must determine whether the
5
interest at stake is a protected liberty or property right under the Fourteenth Amendment. Id. Only
6
after identifying such a right does the Court continue to consider whether the deprivation of that
7
interest contravened notions of due process. Id. (citing Kentucky Dep't of Corrs. v. Thompson,
8
490 U.S. 454, 460 (1989)). “Property interests are not created by the Constitution [.]” Id. (citing
9
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). Instead, “they are created and
10
their dimensions are defined by existing rules or understandings that stem from an independent
11
source such as state law[.]” Id. (quoting Cleveland Bd. Of Educ., 470 U.S. at 538).
12
Here, as discussed above, Plaintiff has failed to allege the existence of a conventional
13
relationship of landlord and tenant creating a protected property interest under the Fourteenth
14
Amendment. See Shapiro v. Willowbrook Home LLC, 2014 WL 3706703, at *6 (C.D. Cal. June
15
23, 2014) (finding that a plaintiff had failed to allege a procedural due process violation for
16
wrongful eviction where the complaint did not allege a conventional landlord and tenant
17
relationship); Martinez v. Sonoma–Cutrer Vineyards, 577 F.Supp. 454 (C.D.Cal.1983) (rejecting
18
plaintiffs' due process claim arising out of an eviction because “plaintiffs are unable to establish
19
the existence of a protected property interest” in the case of premises “remaining under the
20
supervision and control of the [alleged sublessor]”). As Plaintiff has not alleged the existence of a
21
protected property interest or that the defendant was acting under color of state law, he fails to
22
state a cognizable claim for a procedural due process violation under the Fourteenth Amendment.
23
IV. Conclusion and Order
24
Plaintiff’s complaint does not comply with Federal Rule of Civil Procedure 8 and fails to
25
state a cognizable claim for relief. As Plaintiff is proceeding pro se, the Court will grant Plaintiff
26
an opportunity to amend his complaint to cure the deficiencies to the extent he is able to do so in
27
good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
28
1 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what
2 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights or
3 otherwise harmed Plaintiff. Iqbal, 556 U.S. at 678-79. Although accepted as true, the “[f]actual
4 allegations must be [sufficient] to raise a right to relief above the speculative level . . ..” Twombly,
5 550 U.S. at 555 (citations omitted).
6 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated
7 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no
8 “buckshot” complaints).
9 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.
10 Lacey, 693 F.3d at 927. Therefore, Plaintiff’s amended complaint must be “complete in itself
11 without reference to the prior or superseded pleading.” Local Rule 220.
12 Based on the foregoing, it is HEREBY ORDERED that:
13 1. The Clerk’s Office shall send Plaintiff a complaint form;
14 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a
15 first amended complaint curing the deficiencies identified by the Court in this order or file a
16 notice of voluntary dismissal; and
17 3. If Plaintiff fails to file an amended complaint in compliance with this order,
18 the Court will recommend dismissal of this action, with prejudice, for failure to obey a
19 court order and for failure to state a claim.
20
IT IS SO ORDERED.
21

22 Dated: July 28, 2020 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10020810. Public record. Not legal advice.