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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DOUGLAS FLAUGHER,

Plaintiff,

v.

SAN FRANCISCO HOUSING,

Defendant.

Case No. 17-cv-00727-DMR 

ORDER DISMISSING ACTION 

WITHOUT PREJUDICE 

Re: Dkt. No. 12 

Plaintiff Douglas Flaugher filed this suit along with an application to proceed in forma 

pauperis (“IFP”) and a motion to appoint counsel. [Docket Nos. 1, 2, 4]. The court granted 

Plaintiff’s IFP application, dismissed the complaint with leave to amend, and denied the motion to 

appoint counsel. [Docket No. 6]. On April 17, 2017, the court construed Plaintiff’s “Motion for 

Discovery” as a first amended complaint and dismissed the case once again, but granted leave to 

file a second amended complaint by May 5, 2017. [Docket No. 11]. On May 3, 2017, Plaintiff 

filed a motion for leave to file an amended complaint. [Docket No. 12]. Since Plaintiff did not 

file any other document by May 5, 2017, the court construes Plaintiff’s motion for leave as his 

second amended complaint (“SAC”). The court now dismisses the action without prejudice. 

I. DISCUSSION 

The SAC is very sparse. In order to fully understand Plaintiff’s case, the court will 

consider the allegations in the original complaint to provide context for the allegations in the SAC. 

In his original complaint, Plaintiff brought Eighth Amendment claims against various 

defendants arising out of their denial of his applications for affordable housing. Plaintiff alleged 

that he is a mentally disabled individual who is and/or was homeless. See Compl. at 6. Plaintiff 

named Community Housing Partnership as a defendant. It is an organization that provides 

affordable housing to homeless individuals and is based in San Francisco, California. Plaintiff 
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United States District Court

Northern District of California

also named four DOE defendants whom Plaintiff describes as individuals who either worked at the 

Community Housing Partnership, or are “leaders or representatives” of unnamed organizations 

that provide affordable housing to homeless and/or mentally disabled individuals in San Francisco. 

See Compl. at 4-5. Plaintiff alleged that the Doe Defendants abandoned and denied his 

applications for affordable housing for prejudicial and discriminatory reasons, and that the Doe 

Defendants kept him homeless by approving drug addicts, alcoholics, and undocumented 

immigrants for affordable housing instead of Plaintiff. See Compl. at 4-5. 

The court dismissed the Eighth Amendment claims in the original complaint with 

prejudice, but gave Plaintiff an opportunity to amend his complaint to plead allegations showing 

that the defendants were state actors under 42 U.S.C. § 1983, and that he was subjected to 

discriminatory conduct in violation of the Fourteenth Amendment and the Fair Housing Act. See 

Docket No. 6. 

In the SAC, Plaintiff requests that this court “recognize” his claims against the Doe 

Defendants and alleges that the Doe Defendants (1) abandoned his housing applications with 

deceit, lies and contempt; and (2) approved affordable housing applications for drug addicts, 

alcoholics, and illegal immigrants with taxpayer money. Given Plaintiff’s prior pleadings, the 

court assumes that the Doe Defendants described in the second amended complaint are the same 

Doe Defendants described in the original complaint. 

The allegations in the SAC are essentially the same as those raised in the original 

complaint, with the exception of new allegations asserting deceit, lies and contempt. Compare

Compl. at 4-5 [Docket No. 1] (alleging that the Doe Defendants kept Plaintiff homeless by 

approving drug addicts, alcoholics, and undocumented immigrants for affordable housing instead 

of Plaintiff) with SAC at 1 (Doe Defendants “abandoned applications for housing opportunities 

with “deceit, lies [and] contempt,” and instead provided housing for addicts and alcoholics using 

taxpayer dollars). 

The SAC continues to fail to state a claim for the reasons that the court has previously 

provided. As explained in the court’s March 13, 2017 order dismissing his original complaint, 

private individuals are generally not liable under 42 U.S.C. § 1983 for “merely private conduct.” 
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United States District Court

Northern District of California

I.H. by & through Hunter v. Oakland Sch. for the Arts, No. 16-CV-05500-SI, 2017 WL 565069, at 

*3 (N.D. Cal. Feb. 13, 2017) (explaining that “[g]enerally, private individuals and entities cannot 

be held liable under section 1983, because this section ‘excludes from its reach merely private 

conduct, no matter how discriminatory or wrongful’”) (quoting Am. Mfrs. Mut. Ins. Co. v. 

Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citation omitted)). Thus, the Doe

Defendants are not liable under section 1983 simply for denying Plaintiff’s affordable housing 

applications. However, private individuals can “be liable under section 1983 if [they] conspired or 

entered joint action with a state actor.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002). Here, 

Plaintiff has not provided any facts showing that the Doe Defendants either conspired or entered 

into joint action with a state actor. Nor can the court glean the existence of any such facts even 

considering Plaintiff’s prior documents. Therefore, the court dismisses Plaintiff’s second 

amended complaint for failure to state a claim. 

Despite having been given two opportunities to amend his complaint to plead a federal 

claim, see Docket Nos. 6 and 11, it does not appear that Plaintiff can plead a federal claim 

establishing this court’s subject matter jurisdiction, even liberally construing Plaintiff’s 

allegations. See Clarkes v. Hughes, No. 17-CV-00961 (JMA)(AYS), 2017 WL 1843108, at *3 

(E.D.N.Y. May 5, 2017) (“Although courts hold pro se complaints to less stringent standards than 

formal pleadings drafted by lawyers . . . pro se litigants must establish subject matter 

jurisdiction.”) (citation and internal quotation marks omitted). Therefore, the court dismisses 

Plaintiff’s action without prejudice. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any 

time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); see also 

Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (explaining a district court 

may deny leave to amend if “the plaintiff had several opportunities to amend its complaint and 

repeatedly failed to cure deficiencies”). 

The court issues no opinion on whether Plaintiff could bring a state law claim for fraud in 

state superior court based on the new allegations of deceit, lies, and contempt in the SAC. See, 

e.g., Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990, 102 P.3d 268, 274 (2004) 

(setting forth the elements of fraud claim under California law as “(1) a misrepresentation (false 
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Northern District of California

representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to 

defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage”). 

II. CONCLUSION 

In sum, the court dismisses Plaintiff’s action without prejudice. The clerk is directed to 

close the case. 

IT IS SO ORDERED.

Dated: May 31, 2017

______________________________________

Donna M. Ryu

United States Magistrate Judge

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORN

I

A

IT IS SO ORDERED

Judge Donna M. Ryu