Ausbie v. TR Merickel et al
Filing
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ORDER DIRECTING the Clerk to Assign a United States District Judge to the Action; FINDINGS and RECOMMENDATIONS to Deny Plaintiff's 2 Motion to Proceed In Forma Pauperis and to Dismiss the 1 Complaint without Prejudice signed by Magistrate Judge Jennifer L. Thurston on 12/9/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/28/2015. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL AUSBIE,
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Plaintiff,
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v.
TR MERICKEL, et al.,
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Defendants.
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Case No.: 1:15-cv-001785 - --- - JLT
ORDER DIRECTING THE CLERK TO ASSIGN A
UNITED STATES DISTRICT JUDGE TO THE
ACTION
FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S MOTION TO PROCEED
IN FORMA PAUPERIS AND DISMISSING THE
COMPLAINT WITHOUT PREJUDICE
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Plaintiff Michael Ausbie seeks to proceed pro se and in forma pauperis with this action,
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asserting that the state court erred in sentencing him to probation because he is “a Secured Party
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Creditor.” (Doc. 1) Because Plaintiff is in custody pursuant to a judgment of a state court and
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removal of the action is improper, the Court recommends Plaintiff’s motion to proceed in forma
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pauperis be denied and the complaint be dismissed without prejudice.
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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).
If a plaintiff seeks to proceed in forma pauperis, the Court is required to review the complaint,
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and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or
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the 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).
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A 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); see also Neitzke v. Williams, 490 U.S. 319, 325, 328 (1989) (finding claims
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may be dismissed as “frivolous” where the allegations are “fanciful” or “describe[e] fantastic or
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delusional scenarios”).
Here, the Court recommends Plaintiff’s application to proceed be denied because, as discussed
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below, Plaintiff fails to state a claim upon which relief may be granted by this Court.
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II.
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Pleading Requirements
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A
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complaint must include a statement affirming the court’s jurisdiction, “a short and plain statement of
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the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may
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include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a). The Federal Rules
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adopt a flexible pleading policy, and pro se pleadings are held to “less stringent standards” than those
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drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).
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A complaint must state the elements of the plaintiff’s claim in a plain and succinct manner.
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Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of a complaint
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is to give the defendant fair notice of the claims against him, and the grounds upon which the
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complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,
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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). If factual allegations are well-pled, a court should assume
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their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the
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pleading are not entitled to the same assumption of truth. Id.
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III.
Plaintiff’s Allegations and the Relief Requested
Plaintiff filed a “notice of removal from the Superior Court of California, County of Kern,”
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arguing that he was placed on probation unlawfully and the defendants have violated his civil rights
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pursuant to 42 U.S.C. §1983.1 (Doc. 1 at 1) According to the docket of the Kern County Superior
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Court, Plaintiff was placed on probation for four years in Case No. BF155898A. Plaintiff was
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arraigned for a violation of probation on November 2, 2015, and a formal revocation hearing is
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scheduled to occur on December 15, 2015.
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According to Plaintiff, he has registered as a “Secured Party Creditor” with the State of
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Colorado2, and the defendants “[d]id not provide evidence … certified under penalty of perjury” that
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Plaintiff was able to be placed under probation. (Id.) Thus, it appears that Plaintiff challenges the
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imposition of probation and the ability of the state court to find he violated its terms.
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IV.
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Discussion and Analysis
In general, federal courts are required to abstain from interfering on ongoing state criminal
matters. Younger v. Harris, 401 U.S. 37, 43-45 (1971). This abstention doctrine applies if four
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The court may take judicial notice of facts that are capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d
331, 333 (9th Cir. 1993). The record of state court proceeding is a source whose accuracy cannot reasonably be questioned,
and judicial notice may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir.
1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir. 1981); see
also Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). As such, the records of the Kern County
Superior Court are subject to judicial notice.
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Moreover, Plaintiff fails to demonstrate how this act excuses him from compliance with the law or imposes any
special obligations on the defendants.
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conditions are met: “(1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important
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state interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues in the
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state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical
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effect of doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves.
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San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d
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1087, 1092 (9th Cir.2008).
First, it is clear the state criminal proceedings are ongoing, and Plaintiff remains in the custody
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of the state. See United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir.1988),
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cert. denied, 493 U.S. 809 (1989) (holding that individuals who are currently serving probation terms
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are “in custody”). Second, the state criminal proceedings implicate important state interests. Indeed, in
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Kelly v. Robinson, 479 U.S. 36, 49 (1986), the Court held, “This Court has recognized that the States’
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interest in administering their criminal justice systems free from federal interference is one of the most
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powerful of the considerations that should influence a court considering equitable types of relief.”
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Likewise, in Younger, the Supreme Court held, “Since the beginning of this country’s history Congress
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has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from
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interference by federal courts.” Younger, 401 U.S. at 43.
Third, there is no showing Plaintiff could not challenge his sentence in a petition for writ in the
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state court of appeal. Moreover, there is no procedural bar from Plaintiff raising his federal claim in
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the state proceeding. Martori Bros. Distribs. v. James–Massengale, 781 F.2d 1349, 1352, 1354 (9th
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Cir.). Thus, he has a full and fair opportunity to raise the federal claims in state court. Commc'ns
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Telesys. Int'l v. Cal. Pub. Util. Comm'n, 196 F.3d 1011, 1019 (9th Cir.1999). Finally, Plaintiff’s
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complaint seeks to insert the federal court into the ordinary course of state criminal proceedings and, if
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permitted, would threaten the autonomy of the state court. Thus, the complaint must be dismissed.
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V.
Order
Good cause appearing, the Clerk of Court is DIRECTED to assign a United States District
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Judge to this action.
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VI.
Findings and Recommendations
Plaintiff seeks to remove his state criminal proceedings to the federal court, which should not
assume jurisdiction over his claims pursuant to Younger.
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Based upon the foregoing, IT IS HEREBY RECOMMENDED:
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Plaintiff’s motion to proceed in forma pauperis be DENIED;
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2.
The complaint be DISMISSED without prejudice; and
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The Clerk of Court be directed to close this action.
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These Findings and Recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local
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Rules of Practice for the United States District Court, Eastern District of California. Within fourteen
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days after being served with these Findings and Recommendations, Plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Plaintiff is 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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Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).
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IT IS SO ORDERED.
Dated:
December 9, 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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