Margareta Collin v. Michael D Zeff et al

Filing 7

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Andrew J. Wistrich. Because the complaint fails to state a federal claim on which relief can be granted, it is dismissed with leave to amend. Plaintiff has three option s: (1) Plaintiff may continue this action in this court by filing a document labeled First Amended Complaint" within twenty-one (21) days of the date of this order. To withstand dismissal, the amended complaint must attempt to correct the factua l and legal defects described below. (2) Plaintiff may file a Notice of Intent Not to Amend Complaint within twenty-one (21) daysof the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that p laintiff wishes to challenge dismissal of the complaint by seeking review of this order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiffs intent not to file an amended complaint, this action will be dism issed with prejudice, and plaintiff will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063- 1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). (3) Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by filing either a timely amended complaint or a timely notice of intent not to amend, plaintiff will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this order. See Edwards, 356 F.3d at 1063-1066. (mz)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 MARGARETA COLLIN, ) ) Plaintiff, ) ) v. ) ) MICHAEL D. ZEFF, et al., ) et al., ) ) Defendants. ) _____________________________________) Case No. CV12-8156 PSG (AJW) MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 17 Plaintiff, a non-prisoner proceeding pro se, paid the filing fee and filed this action pursuant to 42 18 U.S.C. §§ 1983, 1985, and 1986 against Michael D. Zeff (“Zeff), a private attorney; Ross M. Klein 19 (“Klein”), a California state court judge; and Patrick T. Madden (“Madden”), a California state court judge. 20 Defendants are sued in their individual and official capacities. [Complaint 1-3, 9]. 21 Because the complaint fails to state a federal claim on which relief can be granted, it is dismissed 22 with leave to amend. Plaintiff has three options: 23 (1) Plaintiff may continue this action in this court by filing a document labeled “First Amended 24 Complaint" within twenty-one (21) days of the date of this order. To withstand dismissal, the 25 amended complaint must attempt to correct the factual and legal defects described below. 26 (2) Plaintiff may file a “Notice of Intent Not to Amend Complaint” within twenty-one (21) days 27 of the date of this order. The timely filing of a notice of intent not to amend will be construed as an 28 1 indication that plaintiff wishes to challenge dismissal of the complaint by seeking review of this 2 order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiff’s 3 intent not to file an amended complaint, this action will be dismissed with prejudice, and plaintiff 4 will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063- 5 1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 6 (3) Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by 7 filing either a timely amended complaint or a timely notice of intent not to amend, plaintiff will be 8 deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the 9 Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this order. See 10 Edwards, 356 F.3d at 1063-1066. 11 Plaintiff’s allegations 12 The complaint and attached exhibits allege as follows. On August 3, 2012, plaintiff received a 13 “Notice” from “Superior Court of California, U.S. Bank National Association, John A. Clarke, [and] B. 14 James.” [Complaint 11]. Plaintiff does not allege the purpose or substance of the notice. However, plaintiff 15 alleges that she has not entered into a “loan application/agreement” or other agreement with “Superior Court 16 of California, U.S. Bank National Association, John A. Clarke, [or] B. James,”does not owe any money to 17 those entities or persons, and never enjoyed any benefits or services given or sold by them. [Complaint 11]. 18 On or about August 11, 2012, Zeff sent plaintiff a “demand letter” and a “summons.” Plaintiff does 19 not allege the substance of the demand letter or the summons. However, plaintiff alleges that she has not 20 entered into a “loan application/agreement” or other agreement with Zeff or with U.S. Bank National 21 Association, does not owe money to Zeff or to U.S. Bank National Association, and never enjoyed any 22 benefits or services given or sold by Zeff. [Complaint 3]. 23 Plaintiff alleges that she had a “reasonable expectation” that Klein and Madden should have known: 24 (1) “that the court did not have jurisdiction over the subject matter to hear the case”; (2) they were violating 25 clearly established law. [Complaint 3]. Plaintiff alleges that defendants were “acting under color of state 26 law” and violated plaintiff’s rights under the Sixth and Ninth Amendments and Article 6 of the United 27 States Constitution. [Complaint 3-4]. 28 In “Affidavits” attached as exhibits to the complaint, plaintiff states on August 29, 2012 and 2 1 September 19, 2012, she witnessed Klein and Madden, respectively, “commit perjury” against their oath 2 of office, deny plaintiff the right to be confronted with the “accuser/witness” against her, deny plaintiff 3 “provisions of the Constitution” they swore to uphold, and deny plaintiff “defense arguments.” The 4 affidavits also state: “The Court lacked jurisdiction over the subject matter to hear the case.” [Complaint 5 12-13]. The affidavits are notarized, but they are not executed under penalty of perjury. Plaintiff also has 6 attached similar affidavits from third parties to the complaint as exhibits. 7 Standard governing dismissal for failure to state a claim 8 A complaint may be dismissed on the court’s own motion for failure to state a claim upon which 9 relief can be granted. See Fed. R. Civ. P. 12(b)(6); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 10 2001). To survive dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state 11 a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual 12 content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct 13 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 570 (2007), and citing Twombly, 550 U.S. at 556). “Factual allegations must be enough to raise a right 15 to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even 16 if doubtful in fact).” Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted). The court 17 must accept as true all factual allegations contained in the complaint. That principle, however, “is 18 inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by 19 mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. A pro se complaint, however, is “to be 20 liberally construed,” and “however inartfully pleaded, must be held to less stringent standards than formal 21 pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (citing Estelle 22 v. Gamble, 429 U.S. 97, 106 (1976)); see Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)(stating that “we 23 continue to construe pro se filings liberally when evaluating them under Iqbal,” and “particularly in civil 24 rights cases, . . . to afford the [plaintiff] the benefit of any doubt”) (quoting Bretz v. Kelman, 773 F.2d 1026, 25 1027 n.1 (9th Cir. 1985) (en banc)). 26 Eleventh Amendment immunity 27 A suit against a governmental officer in his official capacity is equivalent to a suit against the 28 governmental entity itself. Gomez v. Vernon, 255 F.3d 1118, 1126 (9th Cir.), cert. denied, 534 U.S. 1066 3 1 (2001). Plaintiff’s damages claims against state court judges Madden and Klein in their official capacity 2 are claims against the State of California, which is immune from damages suits in federal courts absent a 3 valid abrogation of immunity by Congress or an express waiver of immunity by the state. See Idaho v. 4 Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-268 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 5 44, 53-54 (1996); Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). 6 Moreover, states, state agencies, and state officials sued officially are not “persons” subject to suit for 7 money damages under section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 65, 71 (1989). 8 Accordingly, plaintiff's damages claims against Madden and Klein in their official capacity are dismissed 9 under the Eleventh Amendment. 10 Absolute judicial immunity 11 Absolute judicial immunity shields a judge in his or her individual capacity from liability for 12 damages claims arising from judicial acts undertaken as the judicial officer presiding over the plaintiff’s 13 case, regardless of whether those actions occurred inside the courtroom or in the judge’s chambers. Mireles 14 v. Waco, 502 U.S. 9, 9-10 (1991); Dennis v. Sparks, 449 U.S. 24, 27 (1980); Franceschi v. Schwartz, 57 15 F.3d 828, 830 (9th Cir. 1995)(per curiam). Absolute judicial immunity “insulates judges from charges of 16 erroneous acts or irregular action, even when it is alleged that such action was driven by malicious or 17 corrupt motives, or when the exercise of judicial authority is flawed by the commission of grave procedural 18 errors.” In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002)(internal citations and quotation marks omitted); 19 see Stump v. Sparkman, 435 U.S. 349, 356 (1978); Mireles, 502 U.S. at 11. “Judicial immunity applies 20 however erroneous the act may have been, and however injurious in its consequences it may have proved 21 to the plaintiff.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986)(en banc)(quoting Cleavinger v. 22 Saxner, 474 U.S. 193, 199-200 (1985)). 23 A judge is protected if: (1) he performed a “judicial act,” and (2) he did not act in “clear absence of 24 jurisdiction.” Stump, 435 U.S. at 356-357, 360; see Mireles, 502 U.S. at 11-12; Moore v. Brewster, 96 F. 25 3d 1240, 1243-44 (9th Cir. 1996), cert. denied, 519 U.S. 1118 (1997). “A clear absence of all jurisdiction 26 means a clear lack of all subject matter jurisdiction.” Mullis v. United States Bankruptcy Court, 828 F.2d 27 1385, 1389 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988). An action taken by a judge in excess of his 28 or her authority “can not be said to have been taken in the absence of jurisdiction.” Mireles, 502 U.S. at 13. 4 1 Most of plaintiff's allegations are vague and conclusory. The few specific facts pleaded in the 2 complaint, such as the allegation that plaintiff was served with a summons, received a notice from the 3 Superior Court, and “witnessed” Madden and Klein “deny” plaintiff the right to confront her accuser or to 4 make “defense arguments,” indicate that plaintiff is complaining about judicial acts. See Crooks v. Maynard, 5 913 F.2d 699, 700 (9th Cir. 1990) (stating that judicial acts are determined by the nature of the act, “i.e., 6 whether it is a function normally performed by a judge,” and by the parties’ expectations, “i.e., whether they 7 dealt with the judge in his judicial capacity”) (quoting Stump, 435 U.S. at 362); Ashelman, 793 F.2d at 1076 8 (stating that the relevant “factors are to be construed generously in favor of the judge and in light of the 9 policies underlying judicial immunity”). 10 Plaintiff's allegations that defendants acted “outside the scope of their jurisdiction and authority,” 11 and that “the Court lacked subject matter jurisdiction” are wholly conclusory. Jurisdiction is construed 12 broadly where the issue is the immunity of a judge. Crooks, 913 F.2d at 700 (citing Stump, 435 U.S. at 356); 13 see also Ashelman, 793 F.2d at 1076 (stating that “[w]here not clearly lacking subject matter jurisdiction, 14 a judge is entitled to immunity,” and that “[j]urisdiction should be broadly construed to effectuate the 15 policies supporting immunity”). Plaintiff alleges that she received a summons and a notice from the 16 Superior Court. The complaint is devoid of specific supporting facts plausibly suggesting that Madden or 17 Klein acted in “the clear absence of all subject matter jurisdiction.” Mullis v. U. S. Bankr. Ct., 828 F.2d 18 1385, 1389 (9th Cir. 1987) (holding that where a bankruptcy judge had jurisdiction over the plaintiff's 19 bankruptcy petition, the judge's denial of a motion to remove a bankruptcy trustee and other alleged errors 20 were, at most, “acts in excess of jurisdiction, not acts in the clear absence of all jurisdiction”) (citing O'Neil 21 v. City of Lake Oswego, 642 F.2d 367, 369 (9th Cir.1981), cert. denied, 486 U.S. 1040 (1988)); see 22 generally Twombly, 550 U.S. at 555 ( “[A] plaintiff's obligation to provide the grounds of his entitlement 23 to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 24 action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, 25 on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”) (internal 26 quotation marks and ellipsis omitted). 27 Plaintiff’s allegations are mere than “labels and conclusions” that demonstrate no more than a 28 speculative right to relief. Her claims against Madden and Klein therefore are dismissed on the grounds of 5 1 absolute judicial immunity. 2 Color of law 3 Plaintiff cannot sue Zeff, a private attorney, under section 1983 because nothing in the complaint 4 indicates that he was acting “under color of state law” for purposes of a section 1983 claim. See Simmons 5 v. Sacramento County Super. Ct., 318 F.3d 1156, 1161 (9th Cir. 2003) (holding that the plaintiff could not 6 sue a private opposing counsel under section 1983 because “he is a lawyer in private practice who was not 7 acting under color of state law”). There is no authority that a private attorney acts under color of state law 8 merely because he is licensed by the state bar to practice law, and conclusory allegations of state action are 9 insufficient. See Simmons, 318 F.3d at 1161 (citing Price v. Hawaii, 939 F.2d 702, 707-708 (9th Cir.1991) 10 (“[P]rivate parties are not generally acting under color of state law, and . . . conclusionary allegations, 11 unsupported by facts, will be rejected as insufficient to state a claim under the Civil Rights Act.”) (internal 12 alterations and quotation marks omitted). Plaintiff’s section 1983 claims against Zeff are dismissed. 13 Sixth Amendment 14 Plaintiff alleges that defendants violated her Sixth Amendment right “to be confronted with the 15 witness against her . . . .” [Complaint 4]. “The Sixth Amendment provides that “[i]n all criminal 16 prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Giles v. 17 California, 554 U.S. 353, 357-358 (2008) (ellipsis omitted). “[T]he Sixth Amendment Confrontation 18 Clause by its own terms applies only to “criminal prosecutions.” United States v. Barraza, 318 F.Supp.2d 19 1031, 1035 (S.D. Cal. 2004) (citing Hyser v. Reed, 318 F.2d 225, 237 (D.C.Cir.1963)). Nothing in the 20 complaint suggests the state court case alluded to in her complaint is a criminal prosecution in which her 21 Sixth Amendment Confrontation Clause rights would apply. 22 Ninth Amendment 23 Plaintiff alleges that defendants violated her Ninth Amendment rights. [Complaint 4]. 24 The Ninth Amendment, which states that “[t]he enumeration in the Constitution of certain rights, 25 shall not be construed to deny or disparage others retained by the people,” “has not been interpreted as 26 independently securing any constitutional rights for purposes of making out a constitutional violation.” 27 Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) (holding that the plaintiff's argument that 28 his discharge from the Navy on the ground that he was bisexual violated the Ninth Amendment was 6 1 “meritless”); accord, San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir.1996) 2 (holding that “the Ninth Amendment does not encompass an unenumerated, fundamental, individual right 3 to bear firearms”). 4 Section 1985 5 The complaint fails to state a section 1985 conspiracy claim because “[t]he absence of a section 6 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations.” 7 Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005). 8 Section 1986 9 The complaint does not state a claim under section 1986. See Karim-Panahi v. Los Angeles Police 10 Dep't, 839 F.2d 621, 626 (9th Cir. 1988) (“Section 1986 imposes liability on every person who knows of 11 an impending violation of section 1985 but neglects or refuses to prevent the violation. A claim can be 12 stated under section 1986 only if the complaint contains a valid claim under section 1985.”). 13 Conclusion 14 “Leave to amend should be granted unless the pleading ‘could not possibly be cured by the 15 allegation of other facts,’ and should be granted more liberally to pro se plaintiffs.” Ramirez v. Galaza, 334 16 F.3d 850, 861 (9th Cir. 2003) (citing Lopez v. Smith, 203 F.3d 1122, 1130, 1131 (9th Cir.2000) (en banc)), 17 cert. denied, 541 U.S. 1063 (2004)). It is not absolutely clear that plaintiff cannot remedy any of the factual 18 defects in her complaint. Any additional facts, however, “must not be inconsistent with those already 19 alleged, and must be sufficient specific to satisfy Iqbal.” Lacey v. Maricopa County, ---- F.3d ----, 2012 WL 20 3711591, at *32 (9th Cir. 2012) (citing Reddy v. Litton Indus., Inc., 912 F.3d 291, 296-297 (9th Cir. 1990)). 21 Accordingly, plaintiff’s complaint is dismissed with leave to amend pursuant to the instructions set 22 forth at the beginning of this memorandum and order. 23 24 25 26 September 25, 2012 ANDREW J. WISTRICH United States Magistrate Judge 27 28 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?