United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT
Gordon P. Gallagher United States Magistrate Judge
Plaintiff, Gregory Chambers, resides in Denver, Colorado. Mr. Chambers initiated this action by filing, pro se, a Complaint (ECF No. 1). He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Court construes the Complaint liberally because Mr. Chambers is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate. Hall, 935 F.2d at 1110. For the reasons stated below, Plaintiff will be directed to file an Amended Complaint.
I. The Complaint
In the Complaint, Mr. Chambers alleges that he entered a Safeway store in Denver, Colorado on September 16, 2015, paid for one item, exited the store and walked to the bus stop. Two Safeway security guards followed him to the bus stop and asked him for the pack of Solomons. Plaintiff responded that he did not have a pack of Solomons, told them to check the security camera, and showed the guards the receipt for the item he had purchased. The security guards returned to the store and came back a few minutes later advising Mr. Chambers that the pack of Solomons had been located. One of the security guards told Plaintiff that he was no longer welcome at that store, according to the store manager. Mr. Chambers thereafter called the District store manager to relay these events. Four days later, the security guards from the store called him to tell him that he “did nothing wrong” and that “staff members weren’t being honest with them.” (ECF No. 1 at 4). Mr. Chambers asserts that he was harassed and wrongfully targeted by Safeway employees because “he didn’t fit the store’s profile.” (Id.).
In the Jurisdiction section of the Complaint, Mr. Chambers asserts that the Defendant violated his constitutional rights. The Court liberally construes his claims as arising under § 1983.
Section 1983 provides a remedy for the deprivation of a right secured by the Constitution or federal statute, committed under color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). “Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Id. at 50 (quotation marks omitted).
Private conduct constitutes state action only if it “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). State action can be “present if a private party is a ‘willful participant in joint action with the State or its agents.’” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir.1995) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). “[C]onstitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
The Complaint is deficient because Mr. Chambers complains about purely private conduct. Safeway and its employees are private actors. Further, to the extent Plaintiff seeks to assert a claim against Safeway’s security guards, who are not named Defendants in the Complaint, he does not allege specific facts to show that those individuals were state actors, or that they acted jointly with one or more state actors to deprive him of his constitutional rights.
Furthermore, even if the conduct alleged by Plaintiff constituted state action, he nonetheless fails to state an arguable claim for relief under § 1983. Mr. Chambers asserts a violation of his Fourteenth Amendment due process rights. ''The Due Process clause of the Fourteenth Amendment protects against governmental deprivations of life, liberty, or property ''without due process of law.'' Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994) (quoting U.S. Const. amend. XIV, § 1). Plaintiff does not allege facts to show that he was deprived of a liberty or property interest.
Mr. Chambers also asserts a violation of the Ninth Amendment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. “[T]he Ninth Amendment has not been judged to be a source of individual rights for purposes of stating a claim.” Zhao v. United States, 91 Fed.Cl. 95, 99 n. 4 (Fed.Cl. 2010) (citations omitted). See also Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007) (“The Ninth Amendment is not an independent source of individual rights....”); Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir.1991) (Ninth Amendment does not confer substantive rights other than “those conferred by other portions of our governing law”).
Mr. Chambers will be afforded an opportunity to amend his Complaint to allege facts to show that the conduct of which he complains constitutes “state action, ” rather than merely private conduct, and to state an arguable claim for deprivation ...