1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 JOSEPH THOMAS, Case No. 18-cv-06409-LB

12 Plaintiff, ORDER DISMISSING PLAINTIFF’S 13 v. CLAIMS AGAINST DEFENDANT JEFFREY SCARCELLO 14 RANDALL SHAW, et al., Re: ECF No. 116, 117 15 Defendants. 16 17 INTRODUCTION 18 Plaintiff Joseph Thomas brings this suit against defendants Randall Shaw, Mwangi Mukami, 19 Jeffrey Scarcello, and Tenderloin Housing Clinic Inc.1 Mr. Thomas brings only one claim against 20 Mr. Scarcello: a putative claim for violation of “the Civil Rights Act of 1968[,] 18 USC 21 §5245(b)(2), the Violent Crime Control and Law Enforcement Act[,]

note sec. 22 280003.”2 Mr. Thomas alleges that Mr. Scarcello used “fighting words” and various epithets 23 24

25 1 [Second] Amend. Compl. (“SAC”) – ECF No. 46. Citations refer to material in the Electronic Case 26 File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. Mr. Thomas also sued defendants Balwantsinh D. Thakor, Kiransinh Thakor, and Shree Jalaram LLC, but 27 those defendants have been dismissed from the case. Order – ECF No. 82. 2 SAC – ECF No. 46 at 7. 1 against him and got into an altercation with him.3 (Mr. Scarcello, for his part, claims that Mr. 2 Thomas was the one who assaulted him and that Mr. Thomas broke his nose.4) 3 There is no such statute as

, and

and Section 280003 do not 4 create a private right of action. Because of this, on October 31, 2019, the court issued an order for 5 Mr. Thomas to show cause why his claims against Mr. Scarcello should not be dismissed.5 On 6 November 5, 2019, Mr. Thomas filed a response to the court’s order to show cause.6 Having 7 reviewed the response, the court finds that Mr. Thomas has not shown cause. The court dismisses 8 Mr. Thomas’s claims against Mr. Scarcello. The court grants Mr. Thomas leave to file an amended 9 complaint to replead against Mr. Scarcello. 10 11 STATEMENT7 12 Mr. Thomas moved into the National Hotel Budget Inn (“Hotel”) in San Francisco, California, 13 in November 2012.8 The Hotel “was overrun with bedbugs, roaches, mice, and rats. Every toilet 14 and shower leaked or was inoperable, the heat did not work properly, and windows were 15 missing.”9 16 In December 2016, the Tenderloin Housing Clinic (“THC”) took over the management of the 17 Hotel and converted it into “supportive housing.”10 Mr. Thomas alleges that the THC clients 18 brought “needles, sexual liaisons, bedbugs, roaches, noise, dogs, and visitors” to the Hotel and 19

20 3

(¶ 13). 21 4 Scarcello Answer – ECF No. 112 at 5. 22 5 Order to Show Cause – ECF No. 116. The court issued this order to show cause in part because Mr. Scarcello is pro se and might not understand how to file a motion to dismiss on his own and because a 23 review of Mr. Thomas’s complaint left the court with the view that he had not pleaded a cognizable claim against Mr. Scarcello. 24 6 Pl. Resp. – ECF No. 117. 25 7 Unless otherwise stated, the facts in the Statement are allegations from the SAC and are presumed to be true for the purposes of this order. 26 8 SAC – ECF No. 46 at 4 (¶ 6). 27 9

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(¶ 8). 1 turned it into a “safe-injection site.”11 Mr. Thomas asked THC “about housing in a building that 2 wasn’t ‘supportive housing;’ but THC never responded.”12 Mr. Thomas alleges that THC “has a 3 history of churning tenants in order to get higher rents” and that his “quiet enjoyment of the 4 premises” lasted one month before the THC clients moved in.13 5 On December 11, 2017, Mr. Thomas was awoken by “fighting words” at his door.14 Mr. 6 Thomas alleges that Jeffrey Scarcello, another resident of the Hotel, was uttering racial and 7 homophobic slurs at him through his door.15 According to Mr. Thomas, Mr. Scarcello “incited the 8 other tenants in the building by telling them the reason the heat wasn’t working properly is 9 because ‘management was retaliating against the building’ on account of [Mr. Thomas’s] advisory 10 to the tenants of their rights to safe and habitable living conditions.”16 Mr. Thomas alleges that: 11 When I left my room to see what was going on, most of the mob disappeared back into their rooms. Only Scarcello continued the tirade, completely flushed and 12 irrational. Scarcello repeatedly stood close enough so that spittle was sprayed into my face. This went on for what seemed forever. Half-asleep, and with my 13 adrenaline surging, all I remember is chasing him away from my room.17 14 15 ANALYSIS 16 A court may dismiss a plaintiff’s claims on its own initiative where the plaintiff does not state 17 a valid, legally cognizable claim. Reed v. Lieurance,

(9th Cir. 2017). Before 18 doing so, “the court must give notice of its intention to dismiss and afford plaintiff[] an 19 opportunity to at least submit a written memorandum in opposition to such motion.”

(internal 20 quotation marks omitted) (quoting cases). The court gave Mr. Thomas notice of its intention to 21 22

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24 12 Id. at 9 (¶ 18). 13 Id. at 4–5 (¶¶ 9–10). 25 14 Id. at 6 (¶ 13). 26 15 Id. 27 16 Id. 17 Id. 1 dismiss his claims against Mr. Scarcello and gave him an opportunity to submit a written 2 memorandum in opposition.18 3 Mr. Thomas brings a claim against Mr. Scarcello for violations of “18 U.S.C. § 5245” and 28

and Section 280003. Mr. Thomas’s claims against Mr. Scarcello are not cognizable 5 and must be dismissed. 6 First, there is no such statute as

. 7 Second,

simply empowers the U.S. Sentencing Commission to establish 8 sentencing guidelines, and Section 280003 is a direction to the Sentencing Commission regarding 9 sentencing enhancements for hate crimes. Neither

nor Section 280003 creates a 10 private right of action for a plaintiff like Mr. Thomas to bring a civil claim. Stevens v. Skolnik, No. 11 3:09-cv-00227-RCJ (RAM),

, at *3 (D. Nev. May 19, 2010) (report and 12 recommendation) (citing Linda R.S. v. Richard D.,

, 619 (1973)), adopted,

3119188 (D. Nev. Aug. 3, 2010). 14 To the extent Mr. Thomas is alleging that Mr. Scarcello violated criminal laws more generally, 15 “[a] private citizen may not sue under the federal criminal laws absent some language in the 16 statute that suggests a private right of action.” Bey v. City of Oakland, No. 14-cv-01626-JSC, 2014

, at *3 (N.D. Cal. Aug. 25, 2014) (citing Ou-Young v. Vasquez, No. 12-CV-02789- 18 LHK,

, at *4 (N.D. Cal. Nov. 9, 2012)). 19 Mr. Thomas says in his response to the court’s order to show cause that he had intended to sue 20 Mr. Scarcello under

for deprivation of his civil rights. Mr. Thomas has not 21 pleaded facts that can support a Section 1983 claim against Mr. Scarcello. Section 1983 allows 22 individuals to sue government officials who violate their civil rights while acting “under color of 23 any statute, ordinance, regulation, custom, or usage, of any State.”

. “The ‘under 24 color of state law’ requirement is an essential element of a § 1983 case, and it is the plaintiff’s 25 burden to establish this element.” Gatpandan v. Wilmington Sav. Fund Soc’y FSB, No. 17-cv- 26 04001-LB,

, at *2 (N.D. Cal. Nov. 28, 2017) (some internal quotation marks 27 1 omitted) (quoting Duenas v. Freitas, No. C 13-0836 SBA,

, at *5 (N.D. Cal. 2 June 28, 2013)). “‘Purely private conduct, no matter how wrongful, is not covered under § 1983.’” 3 Id. (quoting Duenas,

, at *5). Mr. Thomas does not cognizably plead that Mr. 4 Scarcello is a state actor (as opposed to a private individual), and he therefore cannot bring a 5 Section 1983 claim against Mr. Scarcello. 6 Mr. Thomas argues that “Defendant Scarcello violated Plaintiff Thomas’[s] civil rights by 7 colluding, conspiring, and cooperating with an entity that receives Federal funds, the Tenderloin 8 Housing Clinic.”19 This does not allow him to plead a Section 1983 claim against Mr. Scarcello. 9 First, Mr. Thomas’s assertions that Mr. Scarcello colluded, conspired, or cooperated with THC are 10 conclusory. Second, and more importantly, Mr. Thomas does not cognizably plead that THC is a 11 state actor either. That THC might have received federal funds, without more, does not make it a 12 state actor. Cf. Atterbury v. Sanchez, No. CV 11-4932 SI,

, at *6 (N.D. Cal. 13 Aug. 22, 2012) (“[N]umerous courts in this District have found that the receipt of HUD or other 14 federal funds is insufficient to establish that landlords acted under color of state law in making 15 housing decisions.”) (collecting cases). THC’s alleged involvement thus does not make Mr. 16 Scarcello a state actor and does not give Mr. Thomas an avenue to pleading a Section 1983 claim 17 against him. 18 19 CONCLUSION 20 The court dismisses Mr. Thomas’s claims against Mr. Scarcello. 21 The court gives Mr. Thomas leave to replead against Mr. Scarcello. Mr. Thomas may file an 22 amended complaint within fourteen days of the date of this order repleading claims against Mr. 23 Scarcello. (The court does not grant Mr. Thomas leave at this juncture to amend or add to his 24 claims against any defendants other than Mr. Scarcello or to add any new defendants.) If Mr. 25 Thomas does not timely file an amended complaint with valid, legally cognizable claims against 26 27 19 Pl. Resp. – ECF No. 117 at 2. 1 Mr. Scarcello, the court will dismiss Mr. Thomas’s claims against Mr. Scarcello with prejudice 2 || and dismiss Mr. Scarcello from the case.”° 3 4 IT IS SO ORDERED. 5 Dated: November 6, 2019 LAE 6 LAUREL BEELER 7 United States Magistrate Judge 8 9 10 11 12

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Z 18 19 20 21 22 23 _aJ__—wT_——— 2° Mr. Thomas should caption any new complaint he files the “Third Amended Complaint.” The court 24 || notes for Mr. Thomas’s benefit that an amended complaint wholly supersedes, as opposed to merely supplementing, an earlier complaint, so if he files a Third Amended Complaint, he cannot rely on his 25 earlier complaints and must reinclude all claims and factual allegations that he wishes to pursue in this case (including claims and factual allegations against the other defendants) in his Third Amended 26 || Complaint. The court also notes for Mr. Thomas’s benefit that his filing a Third Amended Complaint will reset the deadline for the other defendants to respond to his complaint (including by filing a 27 motion to dismiss). In light of this, Mr. Thomas may wish to consider whether he wants to file a new complaint or would rather continue with his current operative SAC against the defendants other than 28 Mr. Scarcello.