Bell v. McNally, et al.

Filing 5

ORDER GRANTING 3 MOTION to PROCEED IN FORMA PAUPERIS filed by Paul Bell and DISMISSING COMPLAINT without prejudice. CASE CLOSED. Signed by Judge Robert E. Coyle on 11/1/05. (Keeler, P)

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Bell v. McNally, et al. Doc. 5 Case 1:05-cv-01357-REC-LJO Document 5 Filed 11/01/2005 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 TERRY McNALLY, et al., 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendant. vs. Plaintiff, PAUL BELL, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-05-1357 REC/LJO ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT PREJUDICE IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA On October 27, 2005, Paul Bell, proceeding in pro per, filed a "Complaint for Denial of a Jury Trial and Due Process of Law, and Motion for a Court Order Writ of Mandate". Named as defendants are Terry McNally, Kern County Superior Court Executive Officer, and Ed Jagels, Kern County District Attorney. The Complaint is accompanied by an application to proceed in forma pauperis. It appearing from the application to proceed in forma pauperis that plaintiff is unable to afford the costs of suit, the application to proceed in forma pauperis is granted. 1 Dockets.Justia.com Case 1:05-cv-01357-REC-LJO Document 5 Filed 11/01/2005 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A trial court may dismiss a complaint sua sponte where the plaintiff cannot possibly win relief. Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987); Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir. 1981). In his Complaint, plaintiff alleges that he is being denied his right to a jury trial for two infractions issued to him for conduct in violation of the California Vehicle Code, to wit for jaywalking in violation of California Vehicle Code 21955, and for failing to wear a seatbelt in violation of California Vehicle Code 27315(d). Plaintiff also alleges that a criminal complaint has not been issued by the District Attorney's Office in connection with one of the infractions. Plaintiff alleges that he appeared before Kern County Superior Court Judge Gary Witt on October 21, 2005 and "was denied a Criminal Complaint, the right to Demur to the charges, nor would a trial by jury be allowed." Finally, plaintiff alleges that California Vehicle Code 27315(d) does not apply to him because he is not subject to the federal Motor Vehicle Safety Act or licensed to participate in vehicular commerce. Plaintiff prays for: [A] Court Order, in the form of a Writ of Mandamus, to stop all unlawful proceedings in the Kern County Superior Court system against Paul Bell; and that the Superior Court provide him a Criminal Complaint and a trial by jury. Plaintiff also prays that this court grant to him expenses incurred by this litigation and what ever compensation and relief it deems proper. Pursuant to Younger v. Harris, 401 U.S. 37 (1971), a district court must abstain from exercising jurisdiction where: 2 Case 1:05-cv-01357-REC-LJO Document 5 Filed 11/01/2005 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (1) state judicial proceedings are pending; (2) the state proceedings involve important state interests; and (3) the state proceedings afford the federal plaintiff an adequate opportunity to litigate federal constitutional claims. See Weiner v. County of San Diego, 23 F.3d 263, 266 (9th Cir. 1994). Here, according to the allegations of the Complaint, the criminal proceedings against plaintiff are proceeding. In addition, the criminal proceedings against plaintiff involve important state interests. Finally, the state proceedings afford plaintiff an adequate opportunity to litigate federal constitutional claims because plaintiff can raise those claims on appeal and pursuant to California's writ procedures. Because the court concludes that all three factors support abstention pursuant to Younger v. Harris, the court dismisses this action without prejudice. IT IS SO ORDERED. Dated: 668554 November 1, 2005 /s/ Robert E. Coyle UNITED STATES DISTRICT JUDGE 3

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