Smith v. Eastern District of California, et al

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 12/23/11: Recommending that application to proceed in forma pauperis 2 be denied. Plaintiff's December 7, 2011 complaint be dismissed without leave to amend and this action be dismissed. These findings and recommendations referred to Judge Lawrence K. Karlton. Objections to F&R due within fourteen (14) days. (Kaminski, H) Modified on 12/27/2011 (Davis, D).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH SMITH,

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Plaintiff,

No. CIV S-11-3246 LKK DAD PS

v.
EASTERN DISTRICT
OF CALIFORNIA, et al.,

FINDINGS AND RECOMMENDATIONS

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Defendants.
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This matter was referred to the undersigned in accordance with Local Rule

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302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has requested leave to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915.

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Plaintiff has submitted an in forma pauperis application that makes the showing

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required by 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies

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financially for in forma pauperis status does not complete the inquiry required by the statute. The

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court must dismiss an in forma pauperis case at any time if the allegation of poverty is found to

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be untrue or if it is determined that the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. See 28

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U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or in

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fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 12271

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28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is

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based on an indisputably meritless legal theory or where the factual contentions are clearly

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baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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To state a claim on which relief may be granted, the plaintiff must allege “enough

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facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court

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accepts as true the material allegations in the complaint and construes the allegations in the light

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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg.

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Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242,

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1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as

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true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:

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A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks.

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Fed. R. Civ. P. 8(a).
Here, plaintiff’s filing is deficient in several respects. First, plaintiff’s one-page

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complaint, although certainly short, does not contain a plain statement of the grounds upon which

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the court’s jurisdiction depends. In this regard, plaintiff’s complaint consist exclusively of

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vague, conclusory and jumbled factual allegations, and is nearly incomprehensible.

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Jurisdiction is a threshold inquiry that must precede the adjudication of any case

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before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization,

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858 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may

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adjudicate only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511
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U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992).1 “Federal courts are

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presumed to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’”

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Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch.

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Dist., 475 U.S. 534, 546 (1986)).

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Lack of subject matter jurisdiction may be raised by the court at any time during

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the proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th

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Cir. 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it]

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has subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It

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is the obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux

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v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court

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cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.

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The burden of establishing jurisdiction rests upon plaintiff as the party asserting

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jurisdiction. Kokkonen, 511 U.S. at 377; see also Hagans v. Lavine, 415 U.S. 528, 543 (1974)

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(acknowledging that a claim may be dismissed for lack of jurisdiction if it is “so insubstantial,

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implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy

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within the jurisdiction of the District Court”); Bell v. Hood, 327 U.S. 678, 682-83 (1946)

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(recognizing that a claim is subject to dismissal for want of jurisdiction where it is “wholly

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insubstantial and frivolous” and so patently without merit as to justify dismissal for lack of

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jurisdiction ); Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (holding that even

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“[a] paid complaint that is ‘obviously frivolous’ does not confer federal subject matter

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jurisdiction . . . and may be dismissed sua sponte before service of process.”).

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The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which
confer “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also

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Congress has conferred jurisdiction upon the federal district courts as limited by the
United States Constitution. U.S. Const. Art. III, § 2; 28 U.S.C. § 132; see also Ankenbrandt v.
Richards, 504 U.S. 689, 697-99 (1992).
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be conferred by federal statutes regulating specific subject matter. District courts have “original

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jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United

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States.” 28 U.S.C. § 1331. “Most federal-question jurisdiction cases are those in which federal

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law creates a cause of action. A case may also arise under federal law where ‘it appears that

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some substantial, disputed question of federal law is a necessary element of one of the well-

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pleaded state claims.’” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (quoting Franchise

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Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13 (1983)). The

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“well-pleaded complaint rule” provides that federal jurisdiction exists only when a federal

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question is presented on the face of the plaintiff’s properly pleaded complaint. California v.

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United States, 215 F.3d 1005, 1014 (9th Cir. 2000).
“‘Arising under’ federal jurisdiction only arises . . . when the federal law does

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more than just shape a court’s interpretation of state law; the federal law must be at issue.” Int’l

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Union of Operating Eng’rs v. County of Plumas, 559 F.3d 1041, 1045 (9th Cir. 2009). The mere

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presence of a federal issue does not automatically confer federal-question jurisdiction, and

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passing references to federal statutes do not create a substantial federal question. Lippitt v.

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Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1040-41 (9th Cir. 2003); Rains v. Criterion

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Sys., Inc., 80 F.3d 339, 344 (9th Cir. 1996). “When a claim can be supported by alternative and

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independent theories – one of which is a state law theory and one of which is a federal law theory

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– federal question jurisdiction does not attach because federal law is not a necessary element of

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the claim.” Rains, 80 F.3d at 346. See also Lippitt, 340 F.3d at 1043.

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Second, plaintiff’s complaint does not state a cause of action or allege the factual

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allegations underlying that cause of action. Although the Federal Rules of Civil Procedure adopt

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a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff’s

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claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R.

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Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A

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pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of cause of
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action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of

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‘further factual enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, ---, 129 S. Ct. 1937, 1949

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(2009) (quoting Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some

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degree of particularity overt acts which the defendants engaged in that support the plaintiff’s

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claims. Jones, 733 F.2d at 649.

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Finally, to the extent the court can decipher the allegations of plaintiff’s

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complaint, it appears he may be attempting to assert claims against several judges of this court.

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In this regard, in his complaint plaintiff names as defendants multiple judges of the court and

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complains that he has filed forty previous lawsuits but “none of them worked but getting

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[plaintiff] arrested[.]” (Compl. (Doc. No. 1) at 2.)
Of course, judges acting within the course and scope of their judicial duties are

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absolutely immune from liability for damages. Pierson v. Ray, 386 U.S. 547, 553-54 (1967).

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“[T]he factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the

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act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of

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the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman,

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435 U.S. 349, 362 (1978). Judicial immunity “applies ‘however erroneous the act may have

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been, and however injurious in its consequences it may have proved to the plaintiff.’”

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Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985) (quoting Bradley v. Fisher, 13 Wall. 335,

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347 (1872)). A party dissatisfied with a judge’s rulings may challenge those rulings “only via

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appeal, not by suing the judges.” In re Thomas, 508 F.3d 1225, 1227 (9th Cir. 2007) (citing

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Mireles v. Waco, 502 U.S. 9, 11-12 (1991)).

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For all the reasons cited above, plaintiff’s complaint should be dismissed for
failure to state a claim upon which relief can be granted.
The undersigned has carefully considered whether plaintiff may amend his

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pleading to state a claim upon which relief can be granted. “Valid reasons for denying leave to

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amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg.
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Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake

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Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that

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while leave to amend shall be freely given, the court does not have to allow futile amendments).

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In light of the obvious deficiencies of the complaint filed by plaintiff in this action as noted

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above, the court finds that it would be futile to grant plaintiff leave to amend.

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Accordingly, IT IS RECOMMENDED that:

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1. Plaintiff’s December 7, 2011 application to proceed in forma pauperis (Doc.

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No. 2) be denied;

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2. Plaintiff’s December 7, 2011 complaint be dismissed without leave to amend;
and

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3. This action be dismissed.

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these findings and recommendations, plaintiff may file

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written objections with the court. A document containing objections should be titled “Objections

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to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may, under certain circumstances, waive the right to appeal

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the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: December 23, 2011.

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DAD:6
Ddad1\orders.pro se\smith3246.ifpden.f&rs

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