Ausbie et al v. Vega et al
Filing
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FINDINGS and RECOMMENDATIONS recommending Denying Plaintiffs' Motions to Proceed In Forma Pauperis and Dismissing the Complaint Without Leave to Amend, signed by Magistrate Judge Jennifer L. Thurston on 12/23/2015. Referred to District Judge Anthony W. Ishii. Objections to F&R due within 14 days. (Hall, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL AUSBIE, et al.,
Plaintiffs,
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v.
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JUDGE LOUIE VEGA, et al.
Defendants.
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Case No.: 1:15-cv-01784 - AWI - JLT
FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFFS’ MOTIONS TO
PROCEED IN FORMA PAUPERIS AND
DISMISSING THE COMPLAINT WITHOUT
LEAVE TO AMEND
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Plaintiffs Michael Ausbie and Kamela Nichols seeks to proceed pro se and in forma pauperis
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with an action against Judge Louie Vega; social workers Tiffany Shaw, Carrie Burton, and Dena
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Murphy; public defenders Kathy Furlong and Peter Kang; County Counsel Theresa Goldner; and
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Deputy County Counsel Jennifer Feige. (Doc. 1) Because Plaintiffs are unable to state claim upon
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which relief may be granted by this Court, it is recommended that Plaintiffs’ motions to proceed in
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forma pauperis be DENIED and the complaint be DISMISSED without leave to amend.
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I.
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Motion to Proceed In Forma Pauperis
As a general rule, all parties instituting any civil action, suit or proceeding in a United States
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District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the
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commencement of an action “without prepayment of fees and costs of security therefor, by a person
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who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” 28
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U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if
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leave to proceed in forma pauperis (“IFP”) is granted by the Court. See Rodriguez v. Cook, 169 F.3d
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1178, 1177 (9th Cir. 1999).
The Ninth Circuit has held “permission to proceed in forma pauperis is itself a matter of
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privilege and not a right; denial of an informa pauperis status does not violate the applicant’s right to
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due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314
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F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to
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proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In
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making a determination, the court “must be careful to avoid construing the statute so narrowly that a
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litigant is presented with a Hobson’s choice between eschewing a potentially meritorious claim or
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foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).
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Here, the Court recommends Plaintiffs’ applications to proceed IFP be denied because, as
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discussed below, the complaint fails to state a claim upon which relief may be granted. See 28 U.S.C.
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§ 1915(e)(2).
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II.
Screening Requirement
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When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, and
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shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the
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action or appeal is “frivolous, malicious or fails to state a claim on which relief may be granted; or . . .
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seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 1915(e)(2). A
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claim is frivolous “when the facts alleged arise to the level of the irrational or the wholly incredible,
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whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez,
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504 U.S. 25, 32-33 (1992).
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III.
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Pleading Standards
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A
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pleading stating a claim for relief must include a statement affirming the court’s jurisdiction, “a short
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and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief
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sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).
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The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to “less stringent
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standards” than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).
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A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and
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succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). Further, a
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plaintiff must identify the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534
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U.S. 506, 512 (2002). The Supreme Court noted,
Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted).
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Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d
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266, 268 (9th Cir. 1982). The Court clarified further,
[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. [Citation]. 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. [Citation]. Where a complaint pleads
facts that are “merely consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’
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Iqbal, 556 U.S. at 678 (citations omitted). When factual allegations are well-pled, a court should
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assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal
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conclusions in the pleading are not entitled to the same assumption of truth. Id.
The Court has a duty to dismiss a case at any time it determines an action fails to state a claim,
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“notwithstanding any filing fee that may have been paid.” 28 U.S.C. § 1915e(2). Accordingly, a court
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“may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a
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claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal
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Practice and Procedure, § 1357 at 593 (1963)). However, leave to amend a complaint may be granted
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to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d
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1122, 1127-28 (9th Cir. 2000) (en banc).
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IV.
Plaintiff’s Allegations and the Relief Requested
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Plaintiffs allege arguing that the state court erred in removing the children from their care on
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July 6, 2014. (Doc. 1 at 2) According to Plaintiffs, Mr. Ausbie is “a Secured party Creditor” under
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the state of Colorado, and the defendants “did not provide evidence of law under penalty of perjury
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that gave the Court authority to subject [his] person /and property . . . to be prosecuted in their court.”2
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(Id. at 1) Further, Plaintiffs contend that unidentified “[d]ocumetns were not signed by a Judge [o]r
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Referee so that makes them not legally binding, valid, or enforceable.” (Id.) Plaintiffs seek the return
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of their children, as well as an award of $20 million dollars for public embarrassment, mental anguish,
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pain and suffering. (Id. at 2)
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V.
Discussion and Analysis
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Plaintiffs challenge the ability of the state court to remove their children from their care and
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seek judicial review of that decision. Importantly, however, under the Rooker-Feldman doctrine, a
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party may not seek appellate review in federal court of a decision made by a state court. See Rooker v.
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Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). The
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Ninth Circuit explained,
Typically, the Rooker-Feldman doctrine bars federal courts from exercising subjectmatter jurisdiction over a proceeding in which a party losing in state court seeks what in
substance would be appellate review of the state judgment in a United States district
court, based on the losing party's claim that the state judgment itself violates the losers’
federal rights.
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Doe v. Mann, 415 F.3d 1038, 1041-42 (9th Cir. 2005); see also Exxon Mobil Corp. v. Saudi Basic
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Indus. Corp., 544 U.S. 280, 284 (2005) (the Rooker-Feldman doctrine precludes a district court from
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appellate review of “cases brought by state-court losers complaining of injuries caused by state-court
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judgments rendered before the district court proceeding commenced . . .”). Accordingly, the district
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court lacks jurisdiction over “claims . . . ‘inextricably intertwined’ with the state court’s decision such
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that the adjudication of the federal claims would undercut the state ruling.” Bianchi v. Rylaarsdam, 334
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F.3d 895, 898 (9th Cir. 2003) (citing Feldman, 460 U.S. at 483, 485)).
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The Ninth Circuit has determined that the Rooker-Feldman doctrine bars federal review of state
court decisions regarding children, including custody decisions and child dependency proceedings.
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The Court notes that in recent weeks, Mr. Ausbie has filed other lawsuits based, primarily, upon on these same grounds.
Ausbie v. T.R. Merickel, et al., Case No., 1:15-cv-01785-AWI-JLT; Ausbie v. Bakersfield Municipal Court, Traffic
Division, Case No. 15-cv-01784. The Court has found these claims to be frivolous. Plaintiff is advised that if he continues
to file frivolous claims, the Court will declare him to be a vexatious litigant and bar him from proceeding in this Court
unless he prepays the Court fees.
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See, e.g., Moore v. County of Butte, 547 Fed. Appx. 826, 829 (9th Cir. 2013) (finding a plaintiff’s
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claims challenging the outcome of her child custody proceedings were properly dismissed); Lacy-Curry
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v. Alameda Cnty Soc. Servs. Agency, 262 Fed. Appx 9, 10 (9th Cir. 2007) (where all of the plaintiff’s
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claims against a county social services agency, its workers, and a state court “relate[d] to a series of
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state court child dependency proceedings,” the Rooker-Feldman doctrine precluded review of claims
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related to the proceedings because the plaintiff was “clearly a state court loser complaining of injuries
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caused by state-court judgments rendered before the district court proceedings commenced, and she
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[was] inviting district court review and rejection of those judgments”); see also Ignacio v. Judges of
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U.S. Court of Appeals, 453 F.3d 1160, 1165-66 (9th Cir. 2006) (affirming the district court’s dismissal
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of the case “because the complaint is nothing more than another attack on the California superior
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court’s determination in [the plaintiff’s] domestic case”). Accordingly, the Court is unable to grant
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Plaintiffs the relief requested under the Rooker-Feldman doctrine.
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VI.
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Findings and Recommendations
A plaintiff should be granted leave to amend when the deficiencies of the complaint can be
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cured by amendment. Lopez, 203 F.3d at 1130. In light of the Rooker-Feldman doctrine, Plaintiffs are
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unable to state a claim upon which relief can be granted. Accordingly, leave to amend to amend would
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be futile. Lopez, 203 F.3d at 1130 (dismissal of a pro se complaint for failure to state a claim is proper
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where it is obvious that the plaintiff cannot prevail on the facts alleged).
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Based upon the foregoing, IT IS HEREBY RECOMMENDED:
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Plaintiffs’ motions to proceed in forma pauperis (Docs. 3 and 4) be DENIED;
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Plaintiffs’ Complaint be DISMISSED WITHOUT LEAVE TO AMEND; and
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The Clerk of Court be DIRECTED to close the action.
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These findings and recommendations are submitted to the United States District Judge assigned
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to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of
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Practice for the United States District Court, Eastern District of California. Within fourteen days after
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being served with these findings and recommendations, Plaintiffs may file written objections with the
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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Plaintiffs are advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
December 23, 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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