Nakanwagi v. Cent. Ariz. Shelter Servs. Inc.

Sarah Nathreen Nakanwagi, Plaintiff, v. Central Arizona Shelter Services Incorporated, Defendant.

No. CV-16-03935-PHX-DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 30, 2017

ORDER

Pro se Plaintiff Sarah Nathreen Nakanwagi filed a complaint against Defendant Central Arizona Shelter Services, Inc. ("CASS") seeking various forms of relief for an alleged violation of her state, federal, and international rights. Doc. 1. Defendant has filed a motion for summary judgment. Doc. 17. In response, Plaintiff has filed a motion for judgment on the pleadings. Doc. 25. Neither party has requested oral argument. For the reasons set forth below, the Court will grant Defendant's motion for summary judgment.

I. Legal Standard.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

II. Analysis.

Plaintiff alleges that she was physically attacked by three CASS security guards while waiting to use the bathroom at a shelter.¹ She alleges physical and emotional injuries, and seeks a broad range of relief.

A. Federal Law Claims.

Plaintiff brings federal claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, 1988, 3617, and 28 U.S.C. § 1350.

1. Sections 1981, 1982, 1988.

Section 1981 guarantees "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." CBOCS W., Inc. v. Humphries, 553 U.S. 442, 458 (2008). Plaintiff has not alleged any facts indicating that Defendant's conduct or the conduct of the security guards interfered with her ability to make or enforce a contract. As a result, the Court will grant summary judgment as to Plaintiff's § 1981 claims.

Section 1982 provides for the recovery of compensatory and punitive damages for individuals who suffer intentional discrimination in employment. Plaintiff does not allege that she was employed by Defendant or was discriminated against as an employee. Thus, the Court will grant summary judgment as to Plaintiff's § 1982 claims.

Section 1988 does not provide a cause of action, but allows for an award of attorneys' fees and expert fees.

2. Section 1983.

"Section 1983 is a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials." Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015) (quotation marks and citation omitted). To state a claim under § 1983, a plaintiff must allege two distinct elements: (1) the violation of a right secured by the Constitution or laws of the United States, (2) by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Dismissal of a § 1983 claim "is proper if the complaint is devoid of factual allegations that give rise to a plausible inference of either element." Naffe, 789 F.3d at 1036.

A person acts under color of state law if he exercises "power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West, 487 U.S. at 49 (quotation marks omitted). This requirement generally limits § 1983 suits to claims against public officials. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) ("the under-color-of-state-law element of§ 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful") (quotation marks and citation omitted). A private party may be found to have acted under color of state law if his "offending conduct is fairly attributable to the state." Simeona v. United Airlines, Inc., 28 F.3d 108 (9th Cir. 1994) (citation and quotation marks omitted).

"The Supreme Court has articulated four tests for determining whether a private individual's actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental nexus test." Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002). Plaintiff has not alleged any connection between Defendant, the three CASS security guards, and the State. Rather, Plaintiff alleges that when a police officer arrived to the scene, "[h]e righted [the security guards'] unlawful and false arrest" and encouraged Plaintiff "to report" the incident. Doc. 1, ¶¶ 40, 42.This allegation does not make the Defendant or the security guards state actors. As a result, Plaintiff has not established state action under the first three tests, and no claim can be brought against Defendant under § 1983 unless the security guards were performing a public function.

Under the public function test, a private individual is acting under color of state law if he carries out a function "both traditionally and exclusively governmental." Lee v. Katz, 276 F.3d 550, 554-55 (9th Cir. 2002). "Courts have held that though security guards exercise powers that are traditionally a public function, they do not act under color of state law because that function is not exclusively public." Sayeg v. City of Anaheim, No. 8:13-CV-02009-SVW-AN, 2015 WL 12734785, at *5 (C.D. Cal. June 17, 2015); Wade v. Byles, 83 F.3d 902, 905-06 (7th Cir. 1996); Johnson v. LaRabida Children's Hosp., 372 F.3d 894, 898 (7th Cir. 2004); Stanley v. Goodwin, 475 F. Supp. 2d 1026, 1039 (D. Haw. 2006), aff'd, 262 F. App'x 786 (9th Cir. 2007). The Sixth Circuit has noted that "[w]here private security guards are endowed by law with plenary police powers such that they are de facto police officers, they may qualify as state actors under the public function test." Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 637 (6th Cir. 2005). Romanski contrasted such broad authority with "the common law shopkeeper's privilege," where a security guard carries out no public function. Id. Plaintiff makes no allegation that the security guards in this case were endowed by the law with plenary powers that effectively made them de facto police officers. To the contrary, Plaintiff alleges that their actions were overruled by a true police officer. Because Plaintiff has presented no evidence that Defendant or the three security guards were acting under color of state law, the Court will grant summary judgment on her § 1983 claim.

3. Sections 1985, 1986.

"[T]o state a claim for conspiracy under § 1985, a plaintiff must first have a cognizable claim under § 1983." Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 2004). Similarly, "a cause of action is not provided under 42 U.S.C. § 1986 absent a valid claim for relief under section 1985." Trerice v. Pedersen, 769 F.2d 1398,1403 (9th Cir. 1985). Because Plaintiff does not have a cognizable claim under § 1983, she does not have a cognizable claim under § 1985 or § 1986.

4. Section 3617.

Section 3617 is the Fair Housing Act's retaliation provision and provides that "[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title." Plaintiff has not alleged any facts suggesting that Defendant retaliated against her for exercising a right guaranteed to her by the Fair Housing Act.

5. Additional Federal Claims.

Plaintiff brings claims under several criminal statutes, including as 18 U.S.C. §§ 112 and 2333. Plaintiff has not shown that she has a private right of action under these statutes. Plaintiff also alleges violations of various broad congressional acts such as the Civil Rights Act, the Fair Housing Act, the Patriot Act, the Violence Against Women Reauthorization Act of 2013, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, and the Immigration and Nationality Act. But she provides no explanation of how these acts were violated, and no evidence to support any claim under these statutes.

6. Alien Tort Statute.

Invoking 28 U.S.C. § 1350, Plaintiff brings claims under the Alien Tort Statute ("ATS") for violations of international treaties. Doc. 1, 32-36. "[T]he ATS is a jurisdictional statute creating no new causes of action," but rather provides for federal courts to hear tort claims based on violations of international law. Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004). Thus, a plaintiff has brought a proper claim under the ATS when she (1) is an alien, (2) suing for a tort, (3) committed in violation of international law. Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980); Aldana v.Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246 (11th Cir. 2005); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995).

Not all violations of international law may be brought under the ATS, but only violations of those norms which are "specific, universal, and obligatory." Kiobel v. Royal Dutch Petroleum Co. (Kiobel II), 133 S. Ct. 1659, 1665 (2013); Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1019 (9th Cir. 2014). The Supreme Court has emphasized that courts should exercise "great caution" in...