Case 2:21-cv-01645-MCS-PVC Document 30 Filed 05/06/22 Page 1 of 2 Page ID #:246

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CONSTANTINE S. ANANIADES, Case No. CV 21-1645 MCS (PVC) 12 Plaintiff,

ORDER ACCEPTING FINDINGS,

13 v. CONCLUSIONS AND

RECOMMENDATIONS OF UNITED

14 FRANK N. KENDALL III, Secretary, STATES MAGISTRATE JUDGE United States Department of the Air Force, 15 Defendant. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint 19 in the above-captioned matter, Defendant’s Motion to Dismiss, all the records and files 20 herein, the Report and Recommendation of the United States Magistrate Judge, and 21 Plaintiff’s Objections. After having made a de novo determination of the portions of the 22 Report and Recommendation to which Objections were directed, the Court concurs with 23 and accepts the findings and conclusions of the Magistrate Judge. 24 25 In the Objections, Plaintiff asserts that the First Amended Complaint can be 26 amended to assert a Fifth Amendment due process claim against Defendant, the current 27 Secretary of the United States Air Force, under 42 U.S.C. § 1983. (Obj. at 12). This 28 assertion reflects a fundamental misunderstanding of the scope of a § 1983 claim. As the

1 Case 2:21-cv-01645-MCS-PVC Document 30 Filed 05/06/22 Page 2of2 Page #:247

1 || Report and Recommendation explained, (R&R at 22), to state a claim under § 1983, “a 2 || plaintiff must allege the violation of a right secured by the [federal] Constitution . . . 3 || committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 4 || (1988) (emphasis added). Defendant is a federal employee and any actions he allegedly 5 || took arose under color of federal law, not state law. Therefore, based on the facts alleged, 6 || § 1983 does not apply to Plaintiff's claims and will not provide this Court with federal 7 || question jurisdiction under 28 U.S.C. § 1331. 9 IT IS ORDERED THAT: 10 ll 1. Defendants’ Motion to Dismiss (Dkt. No. 21) is GRANTED IN PART and 12 || DENIED IN PART. 13 14 2. The First Amended Complaint is DISMISSED, with leave to amend. If 15 || Plaintiff wishes to pursue his claims, he must file a Second Amended Complaint within 16 || thirty days of the date of this Order. 17 18 The Clerk shall serve copies of this Order on Plaintiff at his address of record and 19 || on counsel for Defendants. 20 21 IT IS SO ORDERED. 22 23 || DATED: May 6, 2022 44, 24 ake L b. Corba 25 UNITED STATES DISTRICT JUDGE 26 27 28