Rohlfing v. Sokol

Filing 6

ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Edmund F. Brennan on 7/27/2011 GRANTING 2 Motion to Proceed IFP; DENYING as moot 3 Motion to Add "Doe" Defendants; DENYING without prejudice 4 Motion to Appoint Counsel; DENYING 5 Motion for Remand of Cases. Plaintiff is GRANTED 30 days to file an amended complaint. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRISTI ROHLFING,
Plaintiff,

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vs.

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No. CIV 11-1042 GEB EFB PS

F. DON SOKOL, and DOES 1-100,
Defendants.

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ORDER
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This case, in which plaintiff is proceeding in propria persona, was referred to the

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undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff seeks

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff’s declaration makes

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the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, the request to proceed in

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forma pauperis will be granted. 28 U.S.C. § 1915(a).
Determining plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court is directed to dismiss the case at any time if it

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determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if

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it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins.

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Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 &

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1332, confer “federal question” and “diversity” jurisdiction, respectively. Federal question

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jurisdiction requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2)

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allege a “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or
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(3) be authorized by a federal statute that both regulates a specific subject matter and confers

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federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Although the allegations in plaintiff’s complaint are difficult to discern, it appears that

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plaintiff’s complaint purports to allege that she was attacked by her “seriously mentally ill

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husband” and that because her husband was/is employed by the California Department of

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Corrections and Rehabilitation (“CDCR”), plaintiff was treated unfairly by law enforcement and

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the court in Lassen County. Compl., Dckt. No. 1. However, plaintiff’s complaint only alleges

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claims against defendant F. Don Sokol, who was plaintiff’s husband’s attorney in their marital

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dissolution case. Id. at 6-13. Plaintiff alleges that Sokol failed to disclose plaintiff’s husband’s

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mental illness, as well as other evidence related to the marital dissolution action, and that Sokol

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engaged in other misconduct in the course of his representation of plaintiff’s husband in the

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marital dissolution case. Id.

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Although plaintiff’s complaint does not allege a federal claim or diversity of the parties,

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plaintiff’s civil cover sheet, which is attached to plaintiff’s complaint, states that the action is

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brought under 18 U.S.C. § 242. However, 18 U.S.C. § 242 is a criminal statute that does not

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provide a private civil right of action.

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Additionally, to the extent plaintiff’s claim against Sokol is brought under 42 U.S.C.

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§ 1983, that claim also fails. To state a claim under § 1983, plaintiff must allege: (1) the

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violation of a federal constitutional or statutory right; and (2) that the violation was committed

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by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
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Here, plaintiff fails to allege that Sokol was a state actor or that he was otherwise acting under

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color of law. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999)

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(The party charged with a constitutional deprivation under § 1983 must be a person who may

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fairly be said to be a governmental actor) (citation and quotations omitted). Section “1983

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excludes from its reach merely private conduct, no matter how discriminatory or wrong.” Id.

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(citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal

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quotation marks omitted). Furthermore, plaintiff fails to identify the constitutional rights Sokol

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allegedly violated, or explain how his actions resulted in the deprivation of any constitutional

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right.

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Therefore, plaintiff’s complaint will be dismissed. However, plaintiff will be granted

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leave to file an amended complaint, if she can allege a cognizable legal theory against a proper

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defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an

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opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to

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file an amended complaint, she shall clearly set forth the allegations against each defendant and

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shall specify a basis for this court’s subject matter jurisdiction.

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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

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make an amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files an amended complaint, the original no longer serves any function in the case.

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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order
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may result in a recommendation that this action be dismissed. See Local Rule 110.

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Plaintiff also filed a motion to add certain doe defendants, Dckt. No. 3, but did not

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indicate what allegations plaintiff intends to state against each of those doe defendants. Because

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plaintiff’s complaint is dismissed for the reasons stated herein, the motion to add doe defendants

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will be denied as moot. To the extent that plaintiff can allege a cognizable legal theory against

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one or more of the doe defendants identified in plaintiff’s motion, as well as sufficient facts in

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support of that cognizable legal theory, plaintiff may include such allegations in any amended

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complaint.

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Plaintiff has also filed a motion to appoint counsel. Dckt. No. 4. Plaintiff contends that

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she cannot adequately represent herself but cannot afford an attorney. Id. To the extent

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plaintiff’s request for appointment of counsel is brought pursuant to 28 U.S.C. § 1915(d), that

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request is denied without prejudice. The court may only designate counsel to represent an

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indigent civil litigant pursuant to 28 U.S.C. § 1915(d) in certain exceptional circumstances. See

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990); Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988). In considering

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whether exceptional circumstances exist, the court must evaluate (1) the plaintiff’s likelihood of

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success on the merits; and (2) the ability of the plaintiff to articulate her claims pro se in light of

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the complexity of the legal issues involved. Terrell, 935 F.2d at 1017. The court cannot

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conclude that plaintiff’s likelihood of success, the complexity of the issues, or the degree of

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plaintiff’s ability to articulate her claims amount to exceptional circumstances justifying the

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appointment of counsel at this time.

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Finally, plaintiff seeks to remove various matters from Lassen County, including a case

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involving a domestic violence restraining order, a family law matter, and a personal injury

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matter. See Dckt. No. 5 (labeled a “Motion for Remand of Cases”). However, plaintiff’s

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“motion for remand” of her state law cases does not indicate the basis for removal of such

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actions to this court. “The burden of establishing federal jurisdiction is on the party seeking
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removal, and the removal statute is strictly construed against removal jurisdiction.” Emrich v.

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Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). “Federal jurisdiction must be rejected

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if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980

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F.2d 564, 566 (9th Cir. 1992).

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To the extent plaintiff seeks to remove the state law cases under 28 U.S.C. § 1441(a),

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plaintiff has failed to meet her burden of establishing that such removal is proper since she has

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not shown that this court has original jurisdiction over those actions. 28 U.S.C. § 1441(a) (“any

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civil action brought in a State court of which the district courts of the United States have original

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jurisdiction, may be removed by the defendant or the defendants, to the district court of the

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United States for the district and division embracing the place where such action is pending.”).
To the extent plaintiff seeks to remove the cases under 28 U.S.C. § 1443, plaintiff also

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fails to meet her burden. 28 U.S.C. § 1443(“Any of the following civil actions or criminal

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prosecutions, commenced in a State court may be removed by the defendant to the district court

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of the United States for the district and division embracing the place wherein it is pending: (1)

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Against any person who is denied or cannot enforce in the courts of such State a right under any

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law providing for the equal civil rights of citizens of the United States, or of all persons within

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the jurisdiction thereof; (2) For any act under color of authority derived from any law providing

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for equal rights, or for refusing to do any act on the ground that it would be inconsistent with

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such law.”). Section 1443’s applicability is limited to “the rare situations where it can be clearly

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predicted by reason of the operation of a pervasive and explicit state or federal law that the

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petitioner’s federal rights will inevitably be denied if the case is not removed.” Greenwood v.

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Peacock, 384 U.S. 808, 828 (1966) (internal quotations omitted).

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A case may only be removed under § 1443(1) if the party seeking to remove the action(s)

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can satisfy two criteria. “First, [the removing party] must assert, as a defense to the prosecution,

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rights that are given to [her] by explicit statutory enactment protecting equal racial civil rights.”

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Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (quoting California v. Sandoval, 434
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F.2d 635, 636 (9th Cir. 1970)). “Second, [the removing party] must assert that the state courts

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will not enforce that right, and that allegation must be supported by reference to a state statute or

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a constitutional provision that purports to command the state courts to ignore the federal rights.”

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Id. In general, there must be a state law or constitutional provision that denies the removing

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party an opportunity to raise a federal right in her state proceeding. Johnson v. Mississippi, 421

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U.S. 213, 219 (1975) (quoting Georgia v. Rachel, 384 U.S. 780, 803 (1966)). Here, although

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plaintiff contends that she is concerned about her own safety and the safety of her friends if they

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testify on her behalf in the state court actions, she has not met her burden of proof on the first

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prong of § 1443(1) since nothing in her notice of removal indicates a denial of racial equality.

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She has also not met her burden on the second prong since she “point[s] to no formal expression

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of state law that prohibits [her] from enforcing [her] civil rights in state court nor [does she]

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point to anything that suggests that the state court would not enforce [her] civil rights in the state

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court proceedings.” Patel, 446 F.3d at 999.

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Further, § 1443(2) is inapplicable to this case. The provision “applies only to federal

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officers or agents performing their duties under federal civil rights laws, as well as to persons

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authorized to assist them in affirmatively executing those duties and, if the defendant is sued for

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refusing to act, only to state officers and those authorized to act under them.” Greenwood, 384

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U.S. at 824 n.22. There is nothing in plaintiff’s “motion to remand” indicating that she is a

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federal or state officer or person authorized to act under such an officer. Therefore, plaintiff’s

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“motion to remand” will be denied.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis, Dckt. No. 2, is granted.

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2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

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3. Plaintiff’s motion to add doe defendants, Dckt. No. 3, is denied as moot.

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4. Plaintiff’s motion to appoint counsel, Dckt. No. 4, is denied without prejudice.

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5. Plaintiff’s “motion for remand of cases,” Dckt. No. 5, is denied.
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6. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint. The amended complaint must bear the docket number assigned to this case and must

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be labeled “Amended Complaint.” Failure to timely file an amended complaint in accordance

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with this order will result in a recommendation this action be dismissed.

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DATED: July 27, 2011.

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