1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH HILL, No. 2:23-cv-00306-DAD-KJN 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS, DENYING

14 PEOPLEREADY, INC., PLAINTIFF’S MOTION TO AMEND THE

COMPLAINT, AND DISMISSING CERTAIN

15 Defendant. CLAIMS AND DEFENDANTS 16 (Doc. Nos. 7, 12) 17 18 Plaintiff Kenneth Hill is proceeding pro se in this civil action, which defendant removed 19 to this federal court on February 17, 2023. (Doc. No. 1.) This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On May 18, 2023, the assigned magistrate judge issued findings and recommendation 22 recommending that plaintiff’s motion for leave to file an amended complaint (Doc. No. 7) be 23 denied because both of plaintiff’s proposed additional claims would fail. (Doc. No. 12 at 4–5.) 24 First, the magistrate judge found that plaintiff’s proposed retaliation claim under Title VII would 25 not be cognizable because “he alleges defendant retaliated against him after [he] threatened to 26 report the company’s failure to pay wages to the Labor Department, and Title VII does not protect 27 against this kind of act.” (Id. at 4.) Second, as for plaintiff’s claim brought under 42 U.S.C. 28 § 1983 alleging that defendant violated his First Amendment free speech rights, the magistrate 1 judge found that plaintiff’s proposed clarifications would not save that claim from dismissal 2 because defendant PeopleReady is a private entity and was not acting under color of state law. 3 (Id. at 5.) Accordingly, the magistrate judge recommended that plaintiff’s § 1983 claim be 4 dismissed due to plaintiff’s failure to state a cognizable claim. (Id.) In addition, the magistrate 5 judge recommended that the Doe defendants be dismissed due to plaintiff’s failure to state a 6 claim. (Id.) The pending findings and recommendations were served on the parties and 7 contained notice that any objections thereto were to be filed within fourteen (14) days after 8 service. (Id. at 6.) On June 9, 2023, plaintiff filed objections to the pending findings and 9 recommendations. (Doc. No. 13.) Defendant filed a response thereto but did not file objections 10 of its own. (Doc. No. 14.) 11 In his objections, plaintiff states that the clarification he seeks to make in his complaint is 12 that his First Amendment claim is not “founded on” § 1983 but is rather based on the United 13 States Constitution. (Doc. No. 13.) This clarification does not save plaintiff’s claim from 14 dismissal, however, because defendant is a private entity, not a government actor, and thus 15 plaintiff cannot state a cognizable First Amendment free speech claim against defendant. See 16 Manhattan Cmty. Access Corp. v. Halleck, ___ U.S. ___, 139 S. Ct. 1921, 1926 (2019) (“The 17 Free Speech Clause of the First Amendment constrains governmental actors and protects private 18 actors.”). Accordingly, plaintiff’s objections provide no basis upon which to reject the pending 19 findings and recommendations. 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 21 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 22 objections and defendant’s response, the court concludes that the findings and recommendations 23 are supported by the record and by proper analysis. 24 Accordingly: 25 1. The findings and recommendations issued on May 18, 2023 (Doc. No. 12) are 26 adopted in full; 27 2. Plaintiff’s motion for leave to file an amended complaint (Doc. No. 7) is denied; 28 ///// 1 3. Plaintiff's § 1983 claim is dismissed without leave to amend due to plaintiff's 2 failure to state a cognizable claim; 3 4. The Doe defendants named in plaintiffs operative original complaint are 4 dismissed, without prejudice, due to plaintiff's failure to state a cognizable claim 5 against the Doe defendants; 6 5. This action proceeds on plaintiff's claim brought under California Labor Code 7 § 98.6 against defendant PeopleReady; and 8 6. This action is referred back to the assigned magistrate judge for further 9 proceedings. 10 IT IS SO ORDERED. Dated: _ June 20, 2023 Dal A. 2, pel 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28