Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 KENNETH R. HENRY, Case No.: 3:26-cv-03922-CAB-JAC 14 Plaintiff, ORDER: 15 v. (1) GRANTING MOTION TO 16 CATHOLIC CHARITIES, PROCEED IFP, [Doc. No. 2]; and 17 Defendant. (2) DISMISSING COMPLAINT 18 WITHOUT LEAVE TO AMEND. 19 20 21 22 Before the Court is Plaintiff Kenneth R. Henry’s motion for leave to proceed in 23 forma pauperis (“IFP”). [Doc. No. 2.] Plaintiff filed his IFP motion in connection with a 24 complaint filed against Defendant Catholic Charities (“Catholic Charities”). [Doc. No. 1 25 (“Complaint”).] Plaintiff also names Antoinette Fallon (“Fallon”), Director of Catholic 26 Charities, in the body of the Complaint. [Id. at 2.] Plaintiff alleges that On January 28, 27 2026, at the Catholic Charities in El Centro, California, Fallon expelled Plaintiff from the 28 premises because he was playing rap music and called him a curse word (the “N-word”). 1 [Complaint at 6.] For the reasons discussed below, the Court GRANTS the motion to 2 proceed IFP and DISMISSES the Complaint without leave to amend. 3 I. REQUEST TO PROCEED IFP 4 All parties instituting any civil action, suit, or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $405.1 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the 7 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C. 8 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). To satisfy the 9 requirements of § 1915(a), “an affidavit [of poverty] is sufficient which states that one 10 cannot because of his poverty pay or give security for the costs . . . and still be able to 11 provide himself and [his] dependents with the necessities of life.” Adkins v. E. I. DuPont 12 de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted); see also 13 Escobedo v. Applebees, 787 F.3d 1226, 1229 (9th Cir. 2015). 14 Plaintiff has provided the Court with a sufficiently detailed application as required 15 by § 1915(a). [Doc. No. 2.] Plaintiff states that his total monthly income is $925 with 16 $900 coming from Supplemental Security Income and $25 from CalFresh benefits. [See 17 generally id. at 1–2.] Plaintiff also states his expenses include food, clothing, laundry, 18 transportation, motor vehicle insurance, and installment payments totaling $1060 per 19 month. [Id. at 4.] Therefore, Plaintiff has shown an inability to prepay fees and costs or 20 to give security for them. Accordingly, the Court GRANTS Plaintiff’s IFP motion under 21 28 U.S.C. § 1915(a) and proceeds to screen the Complaint. 22 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 23 The Court must screen the Complaint and sua sponte dismiss it to the extent that it 24 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 25 26 27 1 Civil litigants must pay an administrative fee of $55 in addition to the $350 filing fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 28 1 immune. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2 2000) (en banc). Section 1915(e)(2)(B) is not limited to prisoners; instead, it applies to all 3 cases in which the plaintiff proceeds IFP. See Calhoun v. Stahl, 254 F.3d 845, 845 (9th 4 Cir. 2001). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a complaint “contain sufficient 9 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). While 11 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a 12 cause of action, supported by mere conclusory statements, do not suffice” to state a claim. 13 Id. “[U]nadorned, the-defendant-unlawfully-harmed-me accusation[s]” fall short of 14 meeting this plausibility standard. Id. The Court considers Plaintiff’s position as a pro se 15 litigant at the pleading stage and construes the Complaint liberally. See Byrd v. Phoenix 16 Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018). 17 a. Plaintiff’s 42 U.S.C. § 1983 Claims 18 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation 19 of a right secured by the Constitution and laws of the United States, and (2) that the 20 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 21 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). “Action under color of state law 22 normally consists of action taken by a public agency or officer.” Taylor v. First Wyoming 23 Bank, N.A., 707 F.2d 388, 389 (9th Cir. 1983). A private party’s action, without something 24 more, is insufficient to characterize that party as a state actor. See id. However, “[a] 25 private action may constitute an action under color of state law if the private person 26 [willfully] participates in joint action with the state or its agents,” or “if it constitutes the 27 exercise of some power delegated to the private person by the state which is traditionally 28 1 associated with sovereignty or is traditionally exclusively reserved to the state.” Id. 2 (internal quotation marks and alterations omitted). 3 Plaintiff has not alleged a constitutional right to housing or that Catholic Charities 4 acted under color of state law. Plaintiff alleges that Catholic Charities provides housing or 5 shelter for persons experiencing homelessness and Catholic Charities denied him housing. 6 [Complaint at 4, 6.] However, Plaintiff does not allege, nor is there any information in the 7 Complaint leading the Court to reasonably conclude, that Catholic Charities is a public 8 agency or officer, that it acted jointly with a government entity, or that its actions constitute 9 exercise of some power traditionally associated with a governmental entity.2 Although 10 some courts have concluded that particular housing entities have acted under color of state 11 law in limited circumstances, those cases involved entities owned or substantially managed 12 by a government agency. E.g. Mendoza v. Frenchman Hill Apartments Ltd. P’ship, No. 13 2:03-CV-494-RHW, 2005 WL 6581642, at *2 (E.D. Wash. Jan. 20, 2005) (finding state 14 action pleaded where county agency was general management partner and participated in 15 the daily decisions of the housing complex); Guy v. Carson, No. 2:20-CV-01581-DDP- 16 SHK, 2020 WL 3884904, at *9 (C.D. Cal. June 22, 2020) (finding state action pleaded 17 where defendant was alleged to be a state-chartered public housing agency). Plaintiff has 18 failed to plead that a government agency is involved in ownership or management of 19 Catholic Charities. [See generally Complaint at 6.] Therefore, Plaintiff has failed to state 20 a § 1983 claim because Plaintiff failed to allege a constitutional right to housing or that 21 Catholic Charities acted under color of state law. 22 b. Plaintiff’s First Amendment Claim 23 The First Amendment provides that “Congress shall make no law . . . abridging the 24 freedom of speech . . . [.]” U.S. Const. amend. I (emphasis added). The Fourteenth 25 26 2 The Court notes that receipt of government funding or compliance with generally applicable laws, 27 without more, is insufficient to constitute state action. Heineke v. Santa Clara Univ., 965 F.3d 1009, 1013 (9th Cir. 2020); see also Kabbani v. Council House, Inc., 406 F. Supp. 2d 1189, 1193 (W.D. Wash. 2005) 28 1 Amendment makes the First Amendment applicable against the states: “No State shall 2 make or enforce any law which shall abridge the privileges or immunities of citizens of the 3 United States; nor shall any State deprive any person of life, liberty, or property, without 4 due process of law . . . [.]” U.S. Const. amend XIV, § 1 (emphasis added). “The text and 5 original meaning of those Amendments, as well as this Court’s longstanding precedents, 6 establish that the Free Speech Clause prohibits only governmental abridgment of speech. 7 The Free Speech Clause does not prohibit private abridgment of speech.” Manhattan Cmty. 8 Access Corp. v. Halleck, 587 U.S. 802, 808 (2019) (emphasis omitted). Mere verbal 9 harassment or abuse, including the use of racial epithets, does not violate the Constitution. 10 Shehee v. Perez, No. 1:16–cv–01346–AWI–BAM, 2018 WL 1083868, at *6 (E.D. Cal. 11 Feb. 28, 2018). 12 Plaintiff alleges that Fallon, a private party, called him the N-word while banning 13 him from the Catholic Charities’ premises for playing rap music and that these actions 14 violated his First Amendment rights. [Complaint at 6.] However, the First Amendment 15 does not protect Plaintiff from abridgment of speech by private parties. See Manhattan 16 Cmty. Access Corp. v. Halleck, 587 U.S. at 808. Furthermore, Fallon’s alleged use of the 17 N-word while banning Plaintiff from the premises is mere “verbal harassment or abuse” 18 which is insufficient to state a constitutional deprivation. See Oltarzewski v. Ruggiero, 830 19 F.2d 136, 139 (9th Cir. 1987). Therefore, Plaintiff has no cognizable First Amendment 20 claim upon which to pursue relief. 21 III. CONCLUSION 22 Accordingly, Plaintiff’s motion to proceed IFP is GRANTED and his Complaint is 23 DISMISSED without leave to amend. Because Plaintiff fails to allege state action or a 24 deprivation of a federally protected right, the Complaint is DISMISSED for failure to state 25 a claim. See Lopez, 203 F.3d at 1126–27. The dismissal is without leave to amend. See 26 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (a district court may dismiss a pro 27 se complaint without leave to amend where “it is absolutely clear that the deficiencies of 28 the complaint could not be cured by amendment.”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1 |} 1212 (9th Cir. 2012); see also Schmier v. U.S. Ct. of Appeals for Ninth Cir., 279 F.3d 817, 2 ||824 (9th Cir. 2002) (recognizing futility of amendment as a proper basis for dismissal 3 || without leave to amend). 4 It is SO ORDERED. 5 Dated: September 9, 2026 € 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28