Opinion
CV-02-894-ST
October 7, 2002
OPINION AND ORDER
On July 3, 2002, plaintiff filed a Complaint alleging conspiracy claims against defendants American Civil Liberties Union ("ACLU"), Nadine Shossen, the President of the ACLU in New York, and David Findanque, the Executive Director of the ACLU in Oregon. Plaintiff accuses defendants of conspiring with the State of Oregon and its agents of violating 42 U.S.C. § 1983, 1985, 1986, 1981, and 1982 based on their failure to assist plaintiff in his case pending in the Oregon Tax Court, Rivera v. Department of Revenue, et al, Case No. 4573, and in other legal matters from 1978 to the present based on plaintiff's race, color and national origin.
On July 19, 2002, Judge Robert. E. Jones dismissed the Complaint with leave to file an Amended Complaint within 30 days. Thereafter on July 31, 2002, all parties consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c).
Rivera did not file an Amended Complaint, but instead filed a slew of other motions, including an objection to the "imposter" Judge Jones and his "sham" order. On September 9, 2002, this court issued an Order to Show Cause, requiring plaintiff to appear on October 7, 2002, and show cause why this action should not be dismissed. At the hearing on October 7, 2002, Rivera appeared and stated that he had not filed an Amended Complaint as ordered by Judge Jones because Judge Jones was not the judge initially assigned to this case. He refused to accept this court's explanation of why Judge Jones had the authority to issue his order. However, he agreed that he would file an Amended Complaint in 30 days if this court ordered him to do so.
Because the Complaint is deficient for the following reasons, Rivera must file an Amended Complaint. First, the Complaint was filed in violation of the Order Containing Pre-Filing Review Order entered by Magistrate Judge Coffin on April 6, 1999, in Rivera v. State of Oregon, et al, Civil No. 98-6256-TC. That Pre-Filing Review Order applies to all actions filed by plaintiff in this court. It requires any complaint filed to include in the caption: "Subject to a Pre-Filing Order." It also requires the complaint to be accompanied by a copy of the Pre-Filing Review Order, and to contain a statement that plaintiff has not previously brought an action against the same defendants alleging the same operative allegations of fact. The Complaint fails to comply with all of these requirements.
Second, it is obvious from the allegations in the Complaint, that many of plaintiff's claims are time-barred. Because 42 U.S.C. § 1983 and most related federal civil statutes have no independent statute of limitations, the applicable limitation period is borrowed from the forum state. Wilson v. Garcia, 471 U.S. 261, 279 (1985). Actions filed pursuant to §§ 1981, 1983, and 1985 are characterized as personal injury actions for statute of limitations purposes. Goodman v. Lukens Steel Co., 482 U.S. 656, 660-61 (1987) (applying state personal injury limitations period to § 1981 actions); Harding v. Galceran, 889 F.2d 906, 907 (9th Cir 1989), cert denied, 498 U.S. 1082 (1991) (applying same to § 1985 actions); McDougal v. County of Imperial, 942 F.2d 668, 673 (9th Cir 1991) (applying same to § 1983 actions). In Oregon, this period is two years. ORS 12.110(1); Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir 1989). Since §§ 1981 and 1982 were enacted together as part of the Civil Rights Act of 1866 in order to eliminate the vestiges of slavery and racial discrimination, it logically follows that the limitations period of § 1982 would also be based on Oregon's personal injury limitations period.
§ 1981 deals with the rights of all citizens to enter into contracts, while § 1982 concerns the rights of all citizens to hold property.
However, § 1986 is subject to a more strict limitations period contained within the statute itself, which provides that "no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued." Therefore, plaintiff is barred from alleging claims for acts by defendants which occurred more than two years for claims alleging violations of §§ 1981-1985 and more than one year for claims alleging violations of § 1986.
Third, a plaintiff asserting a claim for relief under § 1983 must demonstrate compliance with the following factors: (1) a violation of rights protected by the Constitution or created by federal statute (2) proximately caused (3) by conduct of a person (4) acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir 1991). Accordingly, plaintiff is precluded from initiating a lawsuit under § 1983 against private parties. Because the ACLU and its employees are private parties, they do not act under color of state law and cannot be held liable under § 1983 absent evidence that they were state employees or conspired with state officials in deprive plaintiff of a federal right. Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir 1996).
Plaintiff alleges that the ACLU was acting under color of Oregon law because a conspiracy exists between the ACLU and the State of Oregon to deprive him of legal representation. However, to state a claim against a private entity on a § 1983 conspiracy theory, plaintiff must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act. Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2nd Cir 2002). A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 conspiracy claim against the private entity. Id. As plaintiff fails to provide this court with any factual allegation for his conspiracy theory between the ACLU and any state actor, he fails to state a valid § 1983 claim for pleading purposes.
Fourth, plaintiff must allege personal involvement on the part of all defendants in this action. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir 1989) ("Liability under section 1983 arises only upon a showing of personal participation by the defendant" in the alleged constitutional deprivation); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2nd Cir 2000) (plaintiff asserting a § 1981 claim must demonstrate affirmative link to causally connect the actor with the discriminatory action); Volk v. Coler, 845 F.2d 1422, 1432 (7th Cir 1988) (requiring defendants' personal involvement with respect to § 1985 claims). For the same reasons that personal involvement is required to state a valid § 1981 claim, plaintiff must also demonstrate personal involvement for his claim filed pursuant to § 1982, which, as discussed above, is the companion statute to § 1981.
In order to state a valid claim under § 1986, plaintiff must first prevail on his § 1985 claim. See 42 U.S.C. § 1986 (a person having knowledge of any wrongs to be committed under § 1985, and who is able to prevent those wrongs but neglects to do so, is liable if such a wrongful act is ultimately committed in violation of § 1985); Mian v. Donaldson, Lufkin Jenrette Securities Corp., 7 F.3d 1085, 1088 (2nd Cir 1993) (a § 1986 claim must be predicated upon a valid § 1985 claim). Given that § 1986 requires personal knowledge and is predicated on a valid § 1985 claim (which requires a showing of personal involvement), the court concludes that § 1986 also requires plaintiff to demonstrate personal involvement.
Throughout his Complaint, plaintiff refers to actions by the ACLU, but fails to identify how defendants Strossen and Fidanque personally participated in the constitutional deprivations he alleges. Due to the global application of the personal involvement requirement to plaintiff's claims, it is not enough for plaintiff to allege that the ACLU, as an organization, has deprived him of his federal rights. Instead, he must identify individuals and specifically describe how those individuals' actions violated his federal rights.
Finally, the court notes that plaintiff's claims are based on the ACLU's failure to provide him with legal representation, leading to the mishandling of his cases by the court system which resulted in numerous adverse consequences. Plaintiff has not shown any basis for his apparent contention that the ACLU owes him an absolute duty of legal representation.
ORDER
Because the Complaint (docket #1) has been dismissed, plaintiff has leave to file an Amended Complaint within 30 days from the date of this Order that cures the deficiencies noted above. Failure to timely file an Amended Complaint that cures these deficiencies will result in dismissal of this action with prejudice.
In addition, the following pending motions filed by plaintiff are DENIED AS MOOT:
1. Motion for Sanctions Against Attorney Michael H. Simon Defendants (docket #58);
2. Motion to Strike Defendants Response to Plaintiffs Motion for Judgment on the Pleadings (docket #61);
3. Ex Parte Motion for Entry of Default by the Clerk (docket #64);
4. Motion for Joinder of Real Parties in Interests (docket #69);
5. Motion to Strike Defendants Sham Response to Motion for Sanctions Against Attorney Simon (docket #72);
6. Second Motion for Judgment on the Pleadings (docket #85);