United States District Court, W.D. Washington, Seattle
ORDER OF DISMISSAL
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Ali Hussien
Issak's objections (Dkt. No. 14) to the report and
recommendation of the Honorable Brian A. Tsuchida, United
States Magistrate Judge (Dkt. No. 12), as well as Issak's
subsequent amended complaint (Dkt. No. 15). For the reasons
explained herein, the report and recommendation (Dkt. No. 12)
and objections (Dkt. No. 14) are DISMISSED as moot, and the
amended complaint (Dkt. No. 15) is DISMISSED WITH PREJUDICE
for failure to state a claim upon which relief may be
Ali Hussien Issak is a state prisoner presently confined at
the King County Correctional Facility on charges of
shoplifting at a Barnes & Noble store. (Dkt. No. 15 at
2.) After his arrest, Issak sued Barnes & Noble, a
private company, and Joseph Wilder and Dustin Wade, private
citizens employed by Barnes & Noble. (Dkt. No. 1-1 at 1;
Dkt. No. 15 at 2.) He asserted claims of racial profiling,
defamation of character, falsified police report, unlawful
imprisonment, and emotional distress under 42 U.S.C. §
1983. (Dkt. No. 1-1 at 3.)
Tsuchida declined to serve the complaint because Issak failed
to state a claim upon which relief may be granted. (Dkt. No.
7 at 1.) Because Issak was pro se, Judge Tsuchida
granted him leave to file an amended complaint.
(Id.) In response, Issak moved for leave to file an
amended complaint under 42 U.S.C. § 1984. (Dkt. No. 8.)
This request was apparently due to a scrivener's error in
Judge Tsuchida's order declining service and granting
leave to amend. (See Dkt. No. 7 at 1; Dkt. No. 8 at
Issak did not identify a state actor and because Issak has a
state criminal trial currently pending, Judge Tsuchida
recommended that this action be dismissed with prejudice for
failure to state a claim. (Dkt. No. 12 at 1-2.) Issak
objected, stating that he was mistaken in his initial
complaint and reiterating that he meant to file his claim
under § 1984. (Dkt. No. 14 at 1.)
a week later, Issak submitted an amended complaint that 1)
reasserted his claims under § 1983; 2) named a state
actor, Seattle Police Department Officer Kennedy Elizabeth;
3) restated his claims against Barnes & Noble, Wilder,
and Wade; and 4) alleged that Defendants acted in concert.
(Dkt. No. 15 at 2-4.) The Court accepted this amended
pleading as the operative complaint going forward. (Dkt. No.
16 at 1.)
Report and Recommendation/Objections
Tsuchida's recommendation and Issak's objections
pertained to the earlier version of Issak's complaint,
where he did not name a state actor and mistakenly endeavored
to assert claims under § 1984. Given that the Court has
accepted Issak's amended complaint, which attempts to
address these issues, the Court DISMISSES the report and
recommendation (Dkt. No. 12) and the objections (Dkt. No. 14)
as moot and looks to Issak's amended complaint (Dkt. No.
15) to determine whether this case shall be maintained.
to the amended complaint, the Court finds that Issak fails to
state a claim upon which relief may be granted. See
28 U.S.C. § 1915(e)(2)(B)(ii). To sustain a § 1983
claim, Issak must show that (1) he suffered a violation of
rights protected by the Constitution or created by federal
statute and (2) the violation was proximately caused by a
person acting under color of state or federal law. See
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Moreover, the allegations in Issak's complaint must
suggest that the claim has “at least a plausible chance
of success.” In re Century Aluminum Co., 729
F.3d 1104, 1107 (9th Cir. 2013). Put differently, the
complaint must allege “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Judge Tsuchida's report and recommendation was mooted by
the amended complaint, his analysis is still relevant and
helpful to the Court's current analysis. First,
Issak's claims remain insufficiently pleaded against the
Defendants who are not state actors. Private citizens are
generally not liable under § 1983 because they do not
act under color of state law. Price v. Hawaii, 939
F.2d 702, 707-08 (9th Cir. 1991). An exception can be made if
the private citizen conspires with a state actor or is
jointly engaged with a state actor when undertaking a
prohibited action. Tower v. Glover, 467 U.S. 914,
920 (1984). Issak's amended complaint makes the
conclusory statement that Defendants acted “in
concert” but, beyond that, alleges no factual content
allowing the Court to reasonably infer liability as to the
private actors. This is not enough.
under the abstention doctrine set forth in Younger v.
Harris, 401 U.S. 37 (1971), it is inappropriate for this
Court to interfere with ongoing state criminal proceedings
absent extraordinary circumstances. This Court must abstain
when (1) state proceedings, judicial in nature, are pending;
(2) the state proceedings involve important state interests;
and (3) the state proceedings afford adequate opportunity to
raise constitutional issues. Id. at 43-54. As Judge
Tsuchida stated, “[t]here is no indication that Mr.
Issak does not have an adequate ...