McCullough v. Lithia Kia of Anchorage et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DWIGHT JUNIOR MCCULLOUGH,
Plaintiff,
v.
LITHIA KIA OF ANCHORAGE and
AMERICAN CREDIT
ACCEPTANCE,
Defendants.
Case No. 3:20-cv-00237-RRB
ORDER OF DISMISSAL
On September 24, 2020, Dwight Junior McCullough, a self-represented
prisoner, filed a Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, along with a
Prisoner’s Application to Waive the Filing Fee.1
Mr. McCullough alleges that Lithia Kia of Anchorage has committed unfair
and deceptive business practices and inflicted intentional emotional distress.2 He
further alleges that Lithia Kia of Anchorage and American Credit Acceptance has
violated the Equal Credit Opportunity Act.3 	In brief summary, Mr. McCullough
alleges that on April 10, 2020, he entered into a sales contract with Lithia Kia of
1 Dockets 1-2.
2 Docket 1 at 3, 6–7.
3 Docket 1 at 4–5.
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Anchorage for a 2019 Dodge Durango.4 	He alleges that he submitted a down
payment and attempted to finance the balance due, but was denied a line of credit
by American Credit Acceptance.5 	Mr. McCullough alleges that Lithia Kia of
Anchorage 	and 	American 	Credit 	Acceptance 	discriminated 	against 	him 	by
“charging me so much for financing and for never telling me what my payment was
going to be,” and Lithia Kia of Anchorage had him sign someone else’s credit
report.6 Mr. McCullough alleges that the vehicle was repossessed without notice
in violation of the delivery agreement and that he returned the keys, but never
received his deposit back.7 He also alleges these events resulted in his arrest for
theft, humiliation, and loss of employment.8 	The Court takes judicial notice of
Mr. McCullough’s 	pending 	criminal 	case 	in 	state 	court, 	State 	of 	Alaska 	v.
McCullough, Case No. 3AN-20-03457CR.9 The Court also takes judicial notice of
4 Docket 1 at 3.
5 Docket 1 at 3–5.
6 Docket 1 at 4–5.
7 Docket 1 at 3–7.
8 Docket 1 at 6–7.
9 Judicial notice is the “court’s acceptance, for purposes of convenience and without
requiring a party’s proof, of a well-known and indisputable fact; the court’s power to accept
such a fact.” BLACK’S LAW DICTIONARY (11th ed. 2019); see also Headwaters Inc. v. U.S.
Forest Service, 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in
another tribunal are appropriate for judicial notice.”) (internal quotation marks and citation
omitted); see also Fed. R. Evid. 201.
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Mr. McCullough’s state court civil action against Lithia Kia of Anchorage, Case
No. 3AN-20-084134CI.10
For 	relief, 	Mr. 	McCullough 	requests 	(1) 	$950,000.00 	in 	damages;
(2) $1,250,000.00 in punitive damages; and (3) an order that “defendants drop all
pending cases.”11
SCREENING REQUIREMENT
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.12
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.”13 	In conducting its
10 Supra note 9.
11 Docket 1 at 10.
12 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(a), (b).
13 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
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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.14 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.15
DISCUSSION
Mr. 	McCullough 	alleges 	claims 	against 	Lithia 	Kia 	of 	Anchorage 	and
American Credit Acceptance, pursuant to 42 U.S.C. § 1983.16 	42 U.S.C. § 1983
is a federal statute that “is not itself a source of substantive rights,” but provides “a
method for vindicating rights [found] elsewhere.”17 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
are submitted with and attached to the Complaint.” United States v. Corinthian Colleges,
655 F.3d 984, 999 (9th Cir. 2011) (citing Lee v. L.A., 250 F.3d 668, 688 (9th Cir. 2001)).
14 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)).
15 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)).
16 See Docket 1.
17 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
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federal statutes.”18 	To act under color of state law, a complaint must allege that
the defendants acted with state authority as state actors.19 	To be deprived of a
right, the defendant’s action needs to either violate a right guaranteed by the
Constitution or an enforceable right created by federal law.20 	These essential
elements must be pleaded in a § 1983 claim.
A. 	Private parties are not generally held liable under 42 U.S.C. § 1983; liability
requires the violation of an enforceable right by a “state actor”.
Private citizens or entities are not proper defendants for a § 1983 action.21
A defendant has acted under color of state law when he or she 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.’”22
A private party can be subject to suit under § 1983 for violating a plaintiff's
civil rights only in narrow circumstances. For a private party, “state action may be
18 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
19 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
20 Buckley v. City of Redding, 66 F. 3d 188, 190 (9th Cir. 1995); Blessing v. Freestone,
520 U.S. 329, 340–41 (1997).
21 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); see generally Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922 (1982) (analyzing whether a corporation’s actions
that resulted in the loss of the petitioner’s property were under color of state law.).
22 West, 487 U.S. at 49 (quoting Classic, 313 U.S. at 326); see also Tongol v. Usery, 601
F.2d 1091, 1097 (9th Cir. 1979) (establishing that when state officials are administering a
federal funded program, the state officials are still acting under color of state law).
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found if, though only if, there is such a close nexus between the State and the
challenged action that seemingly private behavior may be fairly treated as that of
the State itself.”23 	The Ninth Circuit, following the United States Supreme Court,
explains that, “[s]pecifically, a plaintiff must show that ‘the conduct allegedly
causing the deprivation of a federal right [was] fairly attributable to the State.’”24
A corporation is a legal entity created, usually for business purposes, in
order to act independently of its shareholders.25 	Lithia Kia of Anchorage is a
business entity organized for the sale of consumer vehicles and vehicle services,
under the corporate umbrella of Lithia Motors.26 While organized as a legal entity,
Lithia Kia of Anchorage does not act with the virtue or authority of state law, and
therefore, is not a state actor. Similarly, American Credit Acceptance is a subprime
credit lender that offers vehicle loans to consumers, most often through car
dealerships.27 	Mr. McCullough has not plausibly alleged any facts that would
support 	a 	finding 	that 	either 	Lithia 	Kia 	of 	Anchorage 	or 	American 	Credit
23 Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)
(citation and internal quotation marks omitted).
24 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (quoting Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)).
25 BLACK’S LAW DICTIONARY (11th ed. 2019).
26 Lithia Kia of Anchorage, https://www.lithiakiaanchorage.com/dealership/about.htm (last
visited Dec. 15, 2020).
27 American Credit Acceptance, https://americancreditacceptance.com/about-us/ (last
visited Dec. 15, 2020).
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Acceptance is a state actor. Mr. McCullough has not sufficiently pled an essential
element of a claim pursuant to 42 U.S.C. § 1983.
B. 	A state actor must violate a pre-existing constitutional or federal right.
42 U.S.C. § 1983 does not confer constitutional or federal rights. Instead, it
provides a mechanism for remedying violations of pre-existing constitutional or
federal rights.28 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.29 	Section 1983 does not provide
a cause of action for violations of state law.30
Mr. McCullough alleges unfair and deceptive business practices, intentional
infliction 	of 	emotional 	distress, 	and 	discrimination 	under 	the 	Equal 	Credit
Opportunity Act. 	Consumer protection and intentional infliction of emotional
distress are not found in the U.S. Constitution, nor as a federal statutory right.
Instead, these claims are common law torts or state consumer protection laws and
best addressed in Alaska state court. The statute of limitations of personal injury
28 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
29 Blessing v. Freestone, 520 U.S. 329, 340–41 (1997); Dittman v. California, 191 F.3d
1020, 1027–28 (9th Cir. 1999).
30 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
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tort claims is two years.31 	The Equal Credit Consumer Opportunity Act prohibits
discrimination in credit lending on the basis of basis of race, color, religion, national
origin, sex, marital status, age, receipt of public assistance, or good faith exercise
of any rights under the Consumer Credit Protection Act.32 	Mr. McCullough’s
allegations do not describe prohibited discrimination on any of the protected bases.
Moreover, the Equal Credit Opportunity Act provides a cause of action separate
from 42 U.S.C. § 1983. 	Therefore, Mr. McCullough has not alleged the required
element of a federal constitutional or statutory right.
A 	Court’s 	decision 	to 	grant 	or 	deny 	leave 	to 	amend 	a 	complaint 	is
discretionary.33 	With these parties and allegations, Mr. McCullough cannot meet
the requirements of 42 U.S.C. § 1983 or another cognizable federal claim.
CONCLUSION
Mr. McCullough has not alleged the required elements of a claim under
42 U.S.C. § 1983; amendment is futile.
31 Alaska Stat. § 09.10.070.
32 See 15 U.S.C. §§ 1691–1691f.
33 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.”).
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IT IS THEREFORE ORDERED:
1. The action is DISMISSED for failure to state a claim upon which relief may be
granted.
2. All pending motions are DENIED AS MOOT.
3. This dismissal is a strike as required by 28 U.S.C. § 1915(g) and Lomax v.
Ortiz-Marquez, et al., 590 U.S. ___ (2020).34
4. The Clerk of Court is directed to enter a final judgment.
DATED this 16th day of December, 2020 at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
34 28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals
in any federal court in the United States which are dismissed as frivolous or malicious or
for failure to state a claim upon which relief may be granted, from bringing any other
actions without prepayment of fees unless the prisoner can demonstrate that he or she is
in “imminent danger of serious physical injury.”
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