Gamez v. Greystar Real Estate Partners LLC

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 May 12, 2023 3 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON GABRIEL GAMEZ, No. 2:23-CV-0015-TOR 8 Plaintiff, ORDER OF DISMISSAL 9 v. GREYSTAR REAL ESTATE PARTNERS, LLC., et al., Defendants.

14 BEFORE THE COURT are Plaintiff’s untimely Verified Amended Complaint, Proofs of Service, and Response to Order to Show Cause. ECF Nos. 18, 20, and 21. The Court issued an Order to Show Cause on April 28, 2023 directing Plaintiff to “show cause, on or before May 8, 2023, why this case should not be dismissed for: (1) failure to properly serve each Defendant; and (2) failure to establish the subject matter jurisdiction of this Court over this suit.” ECF No. 17. The Court has reviewed the record and files herein and is fully informed.

1 DISCUSSION 2 First, Plaintiff has filed an Amended Complaint without leave of Court and not timely as provided by Federal Rule of Civil Procedure 15(a). Accordingly, the Amended Complaint is a nullity. Even if the Court considered the Amended Complaint, it is insufficient to establish this Court’s subject matter jurisdiction over the dispute. Pursuant to Federal Rule of Civil Procedure 12(h)(3), the court must dismiss the action if it determines that it lacks subject-matter jurisdiction.

8 Next, Plaintiff filed Proofs of Service. According to Federal Rule of Civil Procedure 4(e), Plaintiff has not properly served the Summons and Complaint upon each Defendant. When serving an individual within a judicial district of the United States, service is made by 12 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is 13 located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the 14 individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and 15 discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of 16 process.

17 Fed. R. Civ. P. 4(e). Washington law allows a party to serve an individual by providing a copy of the complaint and summons to the defendant personally or “by leaving a copy of the summons at the house of [the defendant’s] usual abode with some person of suitable age and discretion then resident therein;” RCW 4.28.080(16); however, it does not permit service by leaving a copy of the complaint and summons at the person’s place of employment, RCW 4.28.080(17); Dolby v. Worthy, 141 Wash. App. 813, 817 (2007) (“An individual defendant cannot be served by serving an employee at defendant’s place of business.”).

5 Leaving “the summons” with “Kristin at the administrative office front desk”, “Megan front desk Secretary”, “deputy G. Pratt Sheriff Office front desk”, or “A deputy clerk at Spokane County Superior Court Front desk” does not properly effectuate service on the named Defendants. Accordingly, the case will be dismissed for improper and untimely service of process. Thus, no “good cause” has been shown to extend the time for service.

11 Next, Plaintiff has not shown that this Court has subject matter jurisdiction over the dispute. To state a claim under § 1983, a plaintiff must establish (1) the defendant is a person acting under the color of state law, and (2) the defendant’s conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Anderson v. Warner, 451 16 F.3d 1063, 1067 (9th Cir. 2006). Private citizens and entities generally cannot be sued for violation of constitutional rights because they are not acting under color of state law. See 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”) (internal quotations omitted).

1 Judges are absolutely immune from civil liability for damages for their judicial acts. See Mullis v. U.S. Bankr. Ct. for Dist. of Nev., 828 F.2d 1385, 1388 (9th Cir. 1987). Absolute judicial immunity also extends to nonjudicial officers for all claims relating to the exercise of judicial functions (carrying out orders of the court). See Curry v. Castillo, 297 F.3d 940, 947, 952 (9th Cir. 2002).

6 Finally, Plaintiff alleges a conspiracy but provides no basis for such allegations. To establish a conspiracy claim under Section 1983, a plaintiff must show “(1) the existence of an express or implied agreement among the defendant officers to deprive him of his constitutional rights, and (2) an actual deprivation of those rights resulting from that agreement.” Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). “Such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants.” Crow v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (citation omitted). However, to be liable, “each participant must at least share the common objective of the conspiracy.” Id. 16 Plaintiff’s conspiracy allegations are conclusory and vague. They do not meet the pleading requirement of Rule 8.

18 Moreover, Plaintiff cannot initiate criminal charges, only the government may prosecute crimes. See Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973).

20 Criminal actions in district court must be brought by the United States Attorney. 28 U.S.C. § 547(1); United States v. Batchelder, 442 U.S. 114, 124 (1979).

2 Unless it is absolutely clear that amendment would be futile, a pro se litigant 3|| must be given the opportunity to amend his complaint to correct any deficiencies.

4|| Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute, 28 5|| U.S.C. § 1915(e)(2), as recognized in Aktar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 6|| 2012). The Court finds that it is absolutely clear that no amendment will cure the 7\| deficiencies in Plaintiff's Complaint. Therefore, the Court dismisses Plaintiff's || Complaint with prejudice.

ACCORDINGLY, IT IS HEREBY ORDERED: 10 1. All claims and causes of action in this matter are DISMISSED with 11 prejudice for: (1) failure to properly serve each Defendant; and (2) 12 failure to establish the subject matter jurisdiction of this Court over this 13 suit.

14 2. Defendant’s unopposed Motion to Dismiss, ECF No. 8, is GRANTED.

15 The District Court Executive is directed to enter this Order and judgment 16|| accordingly, furnish copies to counsel and Plaintiff at his last known address, and 17|| CLOSE the file.

18 DATED May 12, 2023.

gp aes fino 0. ee 20 On Xe THOMAS O. RICE <> United States District Judge