Hughes v. AT&T et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JONATHAN CHARLES HUGHES,
Plaintiff,
vs.
AT&T, et al.,
Defendants.
Case No. 3:19-cv-00179-SLG-DMS
FINAL REPORT &
RECOMMENDATION
On June 25, 2019, Jonathan Charles Hughes, a self-represented prisoner,
filed a Civil Rights Complaint under 42 U.S.C. § 1983, a civil cover sheet, and an
Application to Waive the Filing Fee under 28 U.S.C. § 1915(a).1 	On August 27,
2019, Mr. Hughes filed an Amended Complaint.2 	This Court screened the
Amended Complaint in accordance with federal law and issued a Report and
Recommendation dismissing Mr. Hughes’s complaint for lack of jurisdiction and
failing to state a claim and granted leave to amend.3 	The District Court adopted
the report and recommendation and dismissed the complaint.4 However, between
the issuance of this Court’s Final Report and Recommendation and the District’s
1 Dockets 1-3.
2 Docket 5-6.
3 Docket 8.
4 Docket 10.
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Court’s Order adopting, Mr. Hughes filed a First Amended Complaint,5 which this
Court now considers.
In the caption of the First Amended Complaint, Mr. Hughes lists the Dimond
Center 	Mall, 	the 	AT&T 	Store, 	Drake 	Fontana, 	Rochelle 	Mucha, 	Saraiya
Commerford, and NANA Management.6 	In the body of the First Amended
Complaint, he additionally names three John Doe security guards at the Dimond
Mall.7
Mr. Hughes alleges that Rochelle Mucha and Saraiya Commerford, AT&T
employees, called security and falsely stated that he was the suspect in a prior
theft.8 	Mr. Hughes further alleges that Drake Fontana and Dimond Center Mall
security 	guards, 	named 	as 	John 	Does 	1-3, 	physically 	assaulted 	him 	with
unnecessary 	force, 	and 	unlawfully 	detained 	him 	until 	the 	Anchorage 	Police
Department arrived.9 He alleges that he was not charged with vandalism and the
theft case was dismissed on November 28, 2018.10 	Mr. Hughes alleges that the
5 Docket 9.
6 Docket 9 at 1.
7 Docket 9 at 2.
8 Docket 9 at 2-3.
9 Docket 9 at 3.
10 Docket 9 at 4-5.
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defendants violated his right to due process, assaulted him, caused him to be
maliciously prosecuted, and intentionally inflicted emotional distress.11
For relief, Mr. Hughes seeks (1) $25,000.00 in damages; (2) $25,000.00 in
punitive damages; (3) plaintiff’s costs; and (4) “any additional relief this court
deems just proper and equitable.”12 Mr. Hughes demands a jury trial.
SCREENING REQUIREMENTS
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented prisoner seeking a waiver of the prepayment
of the filing fee. In this screening, a court shall dismiss the case at any time if the
court determines that the action:
(i) 	is frivolous or malicious;
(ii) 	fails to state a claim on which relief may be granted; or
(iii) 	seeks monetary relief against a defendant who is immune
from such relief.13
To determine whether a complaint states a valid claim for relief, courts
consider whether the complaint contains sufficient factual matter that, if accepted
as true, “state[s] a claim to relief that is plausible on its face.”14 	In conducting its
11 Docket 9 at 5.
12 Docket 5 at 3.
13 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(a), (b).
14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In making this determination, a court may consider “materials
that are submitted with and attached to the Complaint.” United States v. Corinthian
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review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.15 Before a court may dismiss any portion
of a complaint for failure to state a claim upon which relief may be granted, the
court must provide the plaintiff with a statement of the deficiencies in the complaint
and an opportunity to amend or otherwise address the problems, unless to do so
would be futile.16
DISCUSSION
Mr. Hughes has filed a civil rights complaint with the federal district court.
However, Mr. Hughes has not plausibly alleged facts to support a civil rights claim.
Instead, Mr. Hughes has alleged individuals and facts that support tort claims,
likely best addressed in a state court proceeding for damages. 	Accordingly, the
federal district court does not have subject matter jurisdiction over Mr. Hughes’s
complaint. For the reasons discussed below, the Court recommends the dismissal
of Mr. Hughes’s action.
Colleges, 655 F.3d 984, 999 (9th Cir. 2011) (citing Lee v. L.A., 250 F.3d 668, 688 (9th
Cir. 2001)).
15 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773
F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)).
16 See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v.
Lund, 845 F.2d 193, 195 (9th Cir. 1988)).
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I. 	Subject Matter Jurisdiction
Jurisdiction is “[a] court's power to decide a case or issue a decree.”17 	A
court’s 	subject 	matter 	jurisdiction 	is 	its 	“statutory 	or 	constitutional 	power 	to
adjudicate a case.”18 	As a federal court, this Court has limited subject matter
jurisdiction. 	It possesses “only that power authorized by the Constitution and
statute.”19 This means that the Court has the authority to hear only specified types
of cases.20 	“In civil cases, subject matter jurisdiction is generally conferred upon
federal district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or
federal question jurisdiction, 28 U.S.C. § 1331.”21
Federal 	question 	jurisdiction 	provides 	a 	federal 	court 	the 	authority 	to
consider cases brought under the United States Constitution or federal statutes.22
In order for a plaintiff to establish federal question jurisdiction it must be (1) clear
on the face of the complaint an issue of federal law exists and (2) that federal law
17 Black’s Law Dictionary (9th ed. 2009) (definition of “jurisdiction”).
18 Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998).
19 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations
omitted); see also, e.g. A-Z Intern. V. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003).
20 See, e.g., United States v. Marks, 530 F.3d 779, 810 (9th Cir. 2008), citing
DaimlerChrysler v. Cuno, 547 U.S. 332, 342 (2006); United States v. Sumner, 226 F.3d
1005, 1010 (9th Cir. 2000).
21 Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005).
22 28 U.S.C. § 1331.
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created a cause of action for the plaintiff to seek relief.23 	The First Amended
Complaint alleges a violation of due process, but does not sufficiently allege facts
to support a violation of civil or constitutional rights.24 Because the First Amended
Complaint does not clearly describe a violation of the U.S. Constitution or a federal
statute that is redressable by a private citizen in federal court, this Court does not
have federal question jurisdiction over this case.
Alternatively, federal district courts have original jurisdiction of civil lawsuits
where the amount in controversy exceeds $75,000.00 and is between citizens of
different states or foreign states. Diversity jurisdiction requires that the plaintiff has
“citizenship which is diverse from that of every defendant” and an amount in
controversy greater than $75,000.25 This means that this Court could have subject
matter jurisdiction over a case (including one involving only state law issues) when
the plaintiff demonstrates that he is a citizen of a different state than the citizenship
of each of the defendants.26 	However, if any defendant is a citizen of the same
23 See Louisville & N.R.R. v. Mottley, 219 U.S. 467 (1911); American Well Works Co. v.
Layne & Bowler Co., 241 U.S. 257, 260 (1916); Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983).
24 See Docket 9 (see also
25 28 U.S.C. § 1332; See Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 722 (9th
Cir. 2008) (quoting Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996) (diversity
jurisdiction requires “complete diversity of citizenship”)).
26 Id. (quoting Kokkonen, 511 U.S. at 377).
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state as the Plaintiffs, then no diversity jurisdiction exists.27 	The First Amended
Complaint does not specify Mr. Hughes’s state of citizenship, nor the state
citizenship of each of his named defendants. However, from the facts plead in the
First Amended Complaint, the Court infers that it is likely that each of the named
defendants reside in Alaska. 	Moreover, Mr. Hughes has not alleged damages
above the $75,000.00 amount in controversy requirement. 	Because he has not
demonstrated 	diverse 	citizenship 	here, 	this 	Court 	does 	not 	have 	diversity
jurisdiction over his current complaint.
This Court has neither federal question jurisdiction nor diversity jurisdiction
over this case. 	Therefore, this Court has no subject matter jurisdiction over this
matter.
When a court determines “that it lacks subject matter jurisdiction, the court
must dismiss the action.”28 	In light of the foregoing, the Court recommends
dismissal of Mr. Hughes’s action for lack of subject matter jurisdiction.
II. Civil Rights Jurisdiction
Mr. Hughes cites to 28 U.S.C. § 1343(a)(3) as the basis for this Court’s
jurisdiction over his First Amended Complaint. 28 U.S.C. § 1343 was implemented
27 Id.
28 Fed. R. Civ. P. (12)(h)(3).
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as part of the Civil Rights Act of 1871,29 which was part of the original statute that
contained the civil rights cause of action, now known as 42 U.S.C. § 1983.
However, the Federal Question Jurisdiction Amendment Act of 1980 made 28
U.S.C. § 1343 unnecessary.30 Since 1980, civil rights claims are evaluated under
federal question jurisdiction and do not require an amount in controversy in order
to sufficiently plead a civil rights claim.31
42 U.S.C. § 1983 is the primary civil rights statutes used by litigants in order
to achieve relief from a constitutional violation committed by a person “acting under
the color of state law.” However as explained in the Court’s prior order, 42 U.S.C.
§ 1983 has specific requirements about who and how a civil rights claim may
proceed.32 To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must “plead
that (1) defendants acting under color of state law (2) deprived plaintiff of rights
secured by the federal Constitution or federal statutes.”33 	To act under color of
state law, a complaint must allege that the defendants acted with state authority
29 Pub. L. No. 42-22, 17 Stat. 13.
30 Pub. L. No. 98-486, 94 Stat. 2369 (removing the amount in controversy requirement
from 28 U.S.C. § 1331, thus allowing civil rights claims for even nominal damages to fall
under general federal question jurisdiction.).
31 Id.; See also 28 U.S.C. § 1331.
32 See Docket 8.
33 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
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as state actors.34 To be deprived of a right, the defendant’s action needs to either
violate rights guaranteed by the Constitution or an enforceable right created by
federal law.35 	Critically, a plaintiff must establish a causal link between the state
action and the alleged violation of his rights.36 These essential elements must be
pleaded in a § 1983 claim.
a. Private parties are not state actors
42 U.S.C. § 1983 also requires that a defendant must be “acting under the
color of state law.”37 	This essential element of the statute limits who may be a
proper defendant under § 1983 litigation. 	For instance, private citizens, state
governmental agencies, and states are not proper defendants for a § 1983
action.38 	The 	question 	of 	whether 	a 	person 	who 	has 	allegedly 	caused 	a
constitutional 	injury 	was 	acting 	under 	the 	color 	of 	state 	law 	is 	a 	factual
determination.39 A defendant has acted under color of state law where he or she
34 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.
299, 326 (1941)).
35 Buckley v. City of Redding, 66 F. 3d 188, 190 (9th Cir. 1995); Blessing v. Freestone,
520 U.S. 329, 340–41 (1997).
36 Preschooler II v. Clark Cty. Sch. Bd. Of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007)
(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
37 West, 487 U.S. at 49.
38 See 42 U.S.C. § 1983; Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007); Hale
v. Arizona, 993 F.2d 1387, 1398 (9th Cir. 1993) (en banc).
39 See Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002).
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has “exercised power ‘possessed by the virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’”40
Mr. Hughes’ allegations do not indicate that the acts of the Defendants meet
any of the criteria to be a state actor. 	Generally, a state actor works for, or on
behalf of, the state government. 	Individuals working for private businesses are
generally not state actors.41 	Generally, “a private security guard who works
independently from local police would not be a state actor.”42 	There is no
indication, from the allegations, that there was contact between any state actor
and any private actor regarding Mr. Hughes, other than the private actors calling
the police to the Dimond Mall.43 	Mr. Hughes alleges that he was mistaken for a
person who had committed a crime a month before; held in the mall by private
40 West, 487 U.S. at 49 (quoting Classic, 313 U.S. at 326); see also Tongol v. Usery,
601 F.2d 1091, 1097 (establishing that when state officials are administering a federal
funded program, the state officials are still acting under the color of state law).
41 See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).
42 See, e.g., Rabieh v. Paragon Systems Inc., 316 F.Supp.3d 1103, 1111 (N.D. Cal.
2018) (“[A] security guard that could patrol and eject unruly persons from a hospital, but
who could not carry a weapon and had to call the police when individuals became
belligerent was not a state actor. See Johnson v. LaRabida Children's Hospital, 372
F.3d 894, 896–97 (7th Cir. 2004). However, a casino security guard authorized by
Michigan statute to make arrests without a warrant was a state actor. Romanski [v.
Detroit Entertainment, L.L.C.], 428 F.3d [629,] 638 [6th Cir. 2005].”).
43 The Ninth Circuit has held that an individual making a citizen’s arrest or complaining
to the police is not a state actor under the joint action test. Collins v. Womancare, 878
F.2d 1145, 1154-56 (9th Cir. 1989); see also Radcliffe v. Rainbow Const. Co., 254 F.3d
772, 783 (9th Cir. 2001) (§ 1983 false arrest claim against private company dismissed in
absence of evidence that company conspired with the prosecutor to violate plaintiff’s
Fourth Amendment rights).
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employees who used excessive force and called the police. 	He makes no
allegation that any security guard was endowed by the law with powers that
effectively made that person a de facto police officer. Mr. Hughes alleges that the
police released him and the charges were later dismissed.44 	Accordingly, Mr.
Hughes has not plausibly allege facts that support that any of the defendants are
state actors acting under color of law.
b. State torts do not qualify as constitutional or federally protected rights
42 U.S.C. § 1983 does not confer constitutional or federal rights, but instead,
provides a mechanism for remedying violations of pre-existing constitutional or
federal rights.45 Constitutional rights are those conferred by the U.S. Constitution
to individual citizens. Section 1983 can be used as a mechanism for enforcing the
rights guaranteed by a particular federal statute only if (1) the statute creates
enforceable rights and (2) Congress has not foreclosed the possibility of a § 1983
remedy for violations of the statute in question.46 	Section 1983 does not provide
a cause of action for violations of state law.47 However, where a violation of state
44 Docket 9 at 4-5.
45 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
46 Blessing v. Freestone, 520 U.S. 329, 340–41 (1997); Dittman v. California, 191 F.3d
1020, 1027–28 (9th Cir. 1999).
47 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
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law is also a violation of a federal constitutional right, § 1983 may provide a cause
of action.48
Mr. Hughes does not plausibly allege a violation of either a protected
constitutional or federal right. Mr. Hughes alleges that his right to due process was
violated by the Defendants. However, the allegations do not describe a deprivation
of liberty or property by a state actor. 	Moreover, Mr. Hughes’s allegations of (1)
unlawful detention/false imprisonment, (2) malicious prosecution, (3) assault, and
(4) intentional infliction of emotional distress are tort claims. 	Tort claims, without
established diversity jurisdiction, should be brought in state court.49 	Mr. Hughes’
allegations may amount to a state tort claim, but they are not currently cognizable
in federal court. 	As previously advised, the two-year statute of limitations is
running,50 so if Mr. Hughes wishes to bring a case against any of the Defendants
in the state courts, he should do so immediately.
c. 	Mr. Hughes has not alleged required elements for a claim under 42
U.S.C. § 1983.
Mr. Hughes has not plausibly alleged a civil rights claim under 42 U.S.C. §
1983, or any other federal civil rights provision. 	Instead, Mr. Hughes may have
state law tort claims, which can only be litigated in state court. 	Accordingly, Mr.
48 Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996).
49 See generally 28 U.S.C. § 1332.
50 See AS 09.10.070.
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Hughes has not sufficiently alleged jurisdiction under either 28 U.S.C. § 1343 or
28 U.S.C. § 1331 (general federal question).
CONCLUSION
The federal district court does not have jurisdiction over Mr. Hughes’s
claims. 	Therefore, Mr. Hughes has failed to state a claim upon which relief may
be granted, and his case must be recommended for dismissal. A Court’s decision
to grant or deny leave to amend a complaint is discretionary.51 	Mr. Hughes may
have state law tort claims, but does not plausibly allege federal claims, making
amendment futile. As previously explained, Mr. Hughes to best protect his claims
he should his allegations in state court immediately.
IT IS THEREFORE ORDERED:
1. 	The action is recommended for DISMISSAL for failure to state a claim upon
which relief may be granted and without leave to amend. 	It is further
recommended that all pending motions be denied as moot.
2. 	Mr. Hughes has fourteen days (14) days from receiving this Report &
Recommendation to submit objections for review by the District Judge.52
51 Foman v. Davis, 371 U.S. 178, 182 (1962) (establishing that leave to amend a
complaint should be freely given unless to do so would be futile); see also Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (stating that “[a] district court should
not dismiss a pro se complaint without leave to amend unless it is absolutely clear that
the deficiencies of the complaint could not be cured by amendment.”).
52 Under 28 U.S.C. § 636(b)(1), a District Court may designate a magistrate judge to
hear and determine any pretrial matter pending before the Court. Under the same
provision, a District Court judge may reconsider any pretrial matter where it has been
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3. 	As Mr. Hughes likely has state law tort claims, the Court encourages Mr.
Hughes to file his claims in state court as soon as possible, because he risks
losing his claims due to the statute of limitations.
DATED at Anchorage, Alaska, this 27th day of February, 2020.
_/ Deborah M. Smith ______
DEBORAH M. SMITH
Chief United States Magistrate Judge
shown the magistrate judge’s order is clearly erroneous or contrary to law. Within
fourteen days after being served with a copy of a magistrate judge’s order, any party
may serve and file written objections. Objections and responses shall not exceed five
(5) pages in length and shall not merely reargue positions presented in motion
papers. Rather, objections and responses shall specifically designate the findings or
recommendations objected to, the basis of the objection, and the points and authorities
in support. A District Court judge may accept, reject, or modify, in whole or in part, the
magistrate judge’s order. Reports and recommendations are not appealable
orders. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until
entry of the district court’s judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir.
1986).
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