1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES HENRY FLOURNOY, P00154293, Case No. 24-cv-02101-CRB (PR)

8 Plaintiff, ORDER OF DISMISSAL 9 v.

10 KATHRYN WADE, 11 Defendant(s).

12 Plaintiff, a pretrial detainee at the Marin County Jail (MCJ) facing state criminal charges in 13 Marin County Superior Court and other state county superior courts, and a frequent litigant in 14 federal court, has filed a pro se complaint for damages against Contra Costa County resident 15 Kathryn Wade alleging that Wade is “legally responsible for the loss in attorney fees plaintiff has 16 suffered as a direct and proximate result” of Ms. Wade’s failure to pay him for his legal services. 17 ECF No. 1 (Compl.) at 2. Plaintiff also seeks leave to proceed in forma pauperis (IFP) under 28

which the court will grant in an accompanying order based solely on his affidavit of 19 poverty. 20 DISCUSSION 21 A. Standard of Review 22 Federal courts “shall dismiss” a case brought IFP “at any time if the court determines” that 23 the case or appeal “is frivolous or malicious,” “fails to state a claim on which relief may be 24 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28

(e)(2). 26 B. Legal Claims 27 A state prisoner may bring a claim for damages under

based on a federal ] Constitution or laws of the United States was violated, and (2) that the alleged violation was 2 || committed by a person acting under the color of state law. West v. Atkins,

, 48 3 (1988). He also may bring a claim for damages that does not involve a federal question based on a 4 || federal court’s diversity jurisdiction if two conditions are met: (1) the parties are citizens of 5 different states or a citizen of a state and a subject of a foreign state, and (2) the amount in 6 || controversy exceeds $75,000.

(a). 7 Plaintiff's suit for damages against Ms. Ware for apparent breach of contract cannot 8 || proceed in federal court under either basis for federal court jurisdiction. First, plaintiff cannot 9 || proceed under § 1983 because his suit does not involve the violation of a federal right and because 10 || Ms. Wade is a private individual. It is well established that a private individual does not act under 1] color of state law, an essential element of a § 1983 action. See Gomez v. Toledo,

, 12 || 640 (1980). Private conduct, no matter how wrongful, is not covered under § 1983. See Van Ort 13 v. Estate of Stanewich,

(9th Cir. 1996); Quzts v. Maryland Nat'l Ins. Co., 505 14 || F.2d 547, 550 (9th Cir. 1974). Second, plaintiff cannot proceed under this court’s diversity 3 15 || jurisdiction because both he and Ms. Wade are citizens of California. See

(a). 16 || Plaintiffs suit for damages against Ms. Wade for apparent breach of contract must proceed in state i 17 court, if at all. 18 CONCLUSION 19 For the foregoing reasons, this action is DISMISSED under

(e)(2) for 20 || failure to state a claim on which relief may be granted. 21 The clerk is instructed to close the case and terminate all pending motions as moot. 22 IT IS SO ORDERED. 93 Dated: April 17, 2024 24 Lo K CHARLES R. BREYER 25 United States District Judge 26 27 28