Schambeck v. Flores

Filing 5

ORDER OF DISMISSAL This case is DISMISSED. The Application to Waive the Filing Fee, at docket 3 is DENIED as moot. Any further outstanding motions are DENIED. Signed by Judge Sharon L. Gleason on 07/15/2014. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

JOSETTE R. SCHAMBECK,
Plaintiff,
vs.
PATRISIA E. FLORES,
Defendant.

Case No. 3:14-cv-00118-SLG
ORDER OF DISMISSAL

Josette R. Schambeck, representing herself, has filed a Complaint under
42 U.S.C. § 1983, and an Application to Waive the Filing Fee under 28 U.S.C.
§ 1915. 1 Federal law requires that the Court must review the Complaint, and
must dismiss if the action “(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 2 In conducting its review, the Court is mindful
that it must liberally construe a self-represented plaintiff's pleadings and give the
plaintiff the benefit of the doubt. 3

1

Before the Court may dismiss Ms.

Dockets 1, 3.

2

28 U.S.C. § 1915(e)(2)(B); see also Lopez. v. Smith, 203 F.3d 1122, 1129 n. 10 (9th
Cir. 2000) ("It is true that 1915(e)(2)'s provision for dismissal for failure to state a claim
itself penalizes indigent non-prisoner plaintiffs for the alleged abuses of prisoner
plaintiffs. However, Congress inserted 1915(e)(2) into the in forma pauperis statute,
and we must follow this clear statutory direction.”).

3

See Hebbe v. Plier, 627 F.3d 338, 342 (9th Cir. 2010) (“[O]ur ‘obligation’ remains [after
Ashcroft v. Iqbal, 556 U.S. 662 (2009)], ‘where the petitioner is pro se, particularly in

Schambeck’s Complaint, the Court must provide her with a statement of the
deficiencies in the Complaint and an opportunity to amend, unless it is clear that
amendment would be futile. 4 In this case, amendment would be futile.
A.

The parties have been involved in state court litigation against each other.
Ms. Schambeck has brought suit against Patrisia E. Flores, identified as a

citizen of the State of Alaska, who is unemployed. 5 The Court takes judicial
notice 6 that Ms. Schambeck and Ms. Flores have been involved in the following
state court litigation:
On November 1, 2013, Ms. Schambeck filed a petition for an ex parte
stalking protective order and for a long term stalking protective order against Ms.
Flores, both of which were denied on that day. 7

civil rights cases, to construe the pleadings liberally and to afford the petitioner the
benefit of any doubt.’”) (citation omitted).
4

See Silva v. Di Vittorio, 658 F.3d 1090, 1105-06 (9th Cir. 2011) (“[Any] attempt to replead this claim would be futile. . . . The district court properly concluded that the
deficiencies in Silva's complaint could not be cured by an amendment. We therefore
affirm the district court's decision to dismiss [the] claim with prejudice and without leave
to amend.”).

5

Docket 1 at 1-2.

6

Judicial notice is “[a] court's acceptance, for purposes of convenience and without
requiring a party's proof, of a well-known and indisputable fact; the court's power to
accept such a fact.” Black’s Law Dictionary (9th ed. 2009); see also Headwaters Inc. v.
U.S. Forest Service, 399 F.3d 1047, 1051 n. 3 (9th Cir. 2005) (“Materials from a
proceeding in another tribunal are appropriate for judicial notice.”) (internal quotation
marks and citation omitted).
7

Schambeck v. Flores, 3AN-13-3274CI, http://www.courtrecords.alaska.gov/eservices.

3:14-cv-00118-SLG, Schambeck v. Flores
Order of Dismissal
Page 2 of 8

On January 23, 2014, Ms. Schambeck filed another petition for an ex parte
and a long term stalking order against Ms. Flores. 8 An ex parte order was initially
granted but, on February 18, 2014, Ms. Schambeck’s petition was denied. 9
On February 18, 2014, Ms. Flores filed a petition for an ex parte stalking
protective order and a long term protective stalking order and, on March 5, 2014,
the long term order was granted to Ms. Flores. 10

On April 7, 2014, Ms.

Schambeck appealed the decision of the Alaska District Court in that case to the
Superior Court. 11 Then, on May 10, 2014, Ms. Schambeck was charged with a
Class A misdemeanor, for the violation of a stalking protective order. 12 On May
23, 2014, a hearing addressing the long term protective order was held in the
state District Court civil case. Although the order was modified upon motions
filed by Ms. Schambeck, on June 3, 2014, the court denied her motion to
dissolve the long term order. 13

8

Schambeck v. Flores, 3AN-14-0221CI, http://www.courtrecords.alaska.gov/eservices.

9

Id. (1/23/14, 2/5/14, 2/10/14 and 2/18/14 docket notes).

10

Flores v. Schambeck, 3AN-14-0467CI, http://www.courtrecords.alaska.gov/eservices.

11

Schambeck v. Flores, 3AN-14-6087CI, http://www.courtrecords.alaska.gov/eservices.

12

State of Alaska v. Josette Rose Schambeck, 3AN-14-04116CR (AS 11.56.740(a)(2)),
http://www.courtrecords.alaska.gov/eservices.
13

3AN-14-00467CI (4/7/14, 5/14/14, 5/23/14, 5/30/14 and 6/3/14 events and docket
notes).

3:14-cv-00118-SLG, Schambeck v. Flores
Order of Dismissal
Page 3 of 8

Ms. Flores’s alleged actions in the state cases form the basis for Ms.
Schambeck’s claims in this case. In addition, Ms. Schambeck appears to have
brought at least some of her claims in her most recently-filed state case against
Ms. Flores. Ms. Schambeck asserts that, on May 30, 2014, she filed a complaint
in the District Court for the State of Alaska against Ms. Flores for “wrongful
imprisonment, stalking, harassment, tort, false reports [and] slander.” 14
B.

The current allegations pertain to the parties’ actions relating to their state
court proceedings.
In her first claim for relief in the current case, Ms. Schambeck alleges that

Ms. Flores violated Ms. Schambeck’s right to be free from cruel and unusual
punishment by harassing and bullying her, wrongful imprisoning her, and lying to
the state court to secure a restraining order against her. 15

Ms. Schambeck

alleges that Ms. Flores “used the courts for personal gain because [Ms.
Schambeck’s] significant other chooses not to be with Patrisia Flores. Every time
we have court[,] Patrisia Flores makes false reports[,] having the police or state
troopers pull [Ms. Schambeck] over. . . . [S]he has wrongfully had [Ms.
Schambeck] put in jail.” 16

14

Docket 1 at 6; see also Schambeck v. Flores, 3AN-14-7178CI (Ms. Flores filed an
answer on July 7, 2014); http://www.courtrecords.alaska.gov/eservices.
15

Docket 1 at 3.

16

Id.

3:14-cv-00118-SLG, Schambeck v. Flores
Order of Dismissal
Page 4 of 8

In her second claim, Ms. Schambeck alleges that Ms. Flores has engaged
in a “conspiracy to commit tort[s] or unlawful acts.” 17 Ms. Schambeck alleges
that “Patrisia Flores has posted all over the internet explicit photos sending them
to family and friends, making threats towards [Ms. Schambeck] saying she will
cause harm to [her], or have someone cause harm to [her,]” and “[t]hen [Ms.
Flores] went in[to] court [and] contradict[ed] her testimony over and over, which
the judge continued to [allow].” 18 Ms. Schambeck also alleges that Ms. Flores has
“slander[ed] [her] in public [and] all over the internet[,] and she thinks it’s okay
because the system never corrected it.

She has continually [posted on] the

internet calling [Ms. Schambeck] all kinds of names . . . She has falsely called the
police[,] having them harass [Ms. Schambeck] because she isn’t getting her
way.” 19
In her third claim, Ms. Schambeck alleges that Ms. Flores “had [Ms.
Schambeck] arrested. She called the police making false reports. . . . She made
false claims in the courts [and] Judge Rogers refused [to give Ms. Schambeck an
opportunity] to submit evidence.” 20 Ms. Schambeck wants Ms. Flores to be “held
responsible for the emotional anguish, the tort, the harassment, all the false
17

Id. at 4.

18

Id.

19

Id.

20

Id. at 5.

3:14-cv-00118-SLG, Schambeck v. Flores
Order of Dismissal
Page 5 of 8

claims, taking the time from the police force and the court’s time with her
unstable actions.” 21

Ms. Schambeck further requests that Ms. Flores be “held

responsible for all court fees, processing fees, police surcharges [and that] she
pay the jail charges for wrongful imprisonment.” 22
C.

Ms. Flores did not act “under color of state law” as required to state a claim
under 42 U.S.C. § 1983.
As a federal court, this is a Court of limited, as opposed to general,

jurisdiction; 23 it has authority to hear only specified classes of cases. As the
plaintiff, it is Ms. Schambeck's burden to show that the Court has jurisdiction to
hear her claims. 24 “Section 1983 . . . creates a private right of action to vindicate
violations of ‘rights . . . secured by the Constitution and laws’ of the United
States.

Under the terms of the statute,” the plaintiff must show that (1) a

defendant “act[ed] under color of state law”; to (2) “deprive [the plaintiff] of a
constitutional right.” 25

21

Id.

22

Id.

23

Black’s Law Dictionary (9th ed. 2009) (Jurisdiction is “[a] court's power to decide a
case or issue a decree.”).
24

See K2 America Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir. 2011)
(“We ‘presume[ ] that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.’”) (quoting
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)).
25

Rehberg v. Paulk,
quotations omitted).

U.S.

, 132 S.Ct. 1497, 1501 (2012) (citations and internal

3:14-cv-00118-SLG, Schambeck v. Flores
Order of Dismissal
Page 6 of 8

None of Ms. Schambeck’s allegations indicate that Ms. Flores is a state
actor; 26 to the contrary, Ms. Schambeck asserts that Ms. Flores is unemployed. 27
The Court of Appeals for the Ninth Circuit has “held that merely complaining to
the police does not convert a private party into a state actor. . . . Nor is execution
by a private party of a sworn complaint which forms the basis of an arrest enough
to convert the private party's acts into state action.” 28
Ms. Schambeck has failed to state a plausible claim for relief under 42
U.S.C. § 1983, 29 and without state action she cannot maintain a Section 1983
action in federal court against Ms. Flores. 30

Thus, this federal case will be

dismissed. 31

26

In addition, witnesses are absolutely immune from damages for making false or
defamatory statements in judicial proceedings. Burns v. Reed, 500 U.S. 478, 489-92
(1991).
27

Docket 1 at 2.

28

Collins v. Womancare, 878 F.2d 1145, 1155 (9th Cir. 1989) (“Where a “private party
. . . attempted to persuade the police to file charges, and swore out a complaint . . . the
Tenth Circuit held that this did not constitute joint action.”) (citations omitted); see also
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (“The Supreme Court
has articulated four tests for determining whether a private [party's] actions amount to
state action: (1) the public function test; (2) the joint action test; (3) the state compulsion
test; and (4) the governmental nexus test.”) (citation and internal quotations omitted).

29

Iqbal 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.”).
30

See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2008) (“Pro se complaints . . .
may be dismissed for failure to state a claim only where it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.”) (citations and internal quotations omitted).
3:14-cv-00118-SLG, Schambeck v. Flores
Order of Dismissal
Page 7 of 8

IT IS THEREFORE ORDERED that:
1.

This case is DISMISSED, under 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to

state a claim. This dismissal is without prejudice to the continued litigation of the
parties’ state court actions. 32
2.

The Application to Waive the Filing Fee, at Docket 3, is DENIED as moot.

3.

Any further outstanding motions are DENIED.

4.

The Clerk of Court is directed to enter a Judgment in this action.
DATED at Anchorage, Alaska, this 15th day of July, 2014.
/s/ SHARON L. GLEASON
United States District Judge

31

In addition, Ms. Schambeck cannot re-litigate the state court actions in federal court.
See Doe & Associates Law Offices v. Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001)
(“As courts of original jurisdiction . . . federal district courts lack jurisdiction to review the
final determinations of a state court in judicial proceedings.”); Worldwide Church of God
v. McNair, 805 F.2d 888, 890-91 (9th Cir. 1986) (The Court “has no authority to review
the final determinations of a state court in judicial proceedings . . . even where the
challenge to the state court decision involves federal constitutional issues.”) (citing, inter
alia, District of Columbia Court of Appeals v. Feldman, 460 U.S. 476 (1983)); Takahashi
v. Board of Trustees of Livingston Union Sch. Dist., 783 F.2d 848, 850-52 (9th Cir.),
cert. denied, 476 U.S. 1182 (1986) (“The [Supreme] Court rejected the argument that
Congress in enacting 42 U.S.C. § 1983 ‘intended to repeal or restrict the traditional
doctrines of preclusion.’”) (citations omitted).
32

See, e.g., Schambeck v. Flores, 3AN-14-7178CI, supra (May 30, 2014 complaint for
slander, libel and/or defamation); see also Docket 1 at 6 (describing 5/30/14 state case
as an action for “wrongful imprisonment, stalking, harassment, tort, false reports [and]
slander.”).
3:14-cv-00118-SLG, Schambeck v. Flores
Order of Dismissal
Page 8 of 8