Dean v. Baltagar et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/6/12 RECOMMENDING that re 2 MOTION to Proceed in Forma Pauperis filed by Michael Dean be dismissed, 1 Complaint filed by Michael Dean be dismissed without leave to amend; 3 MOTION for Temporary Restraining Order filed by Michael Dean be denied, and that this action be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due 14 days after being served with these Findings and Recommendations. (Meuleman, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL DEAN,
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Plaintiff,
v.
PRISCILA M. BALTAGAR, et al.,
FINDINGS AND RECOMMENDATIONS
Defendants.
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No. CIV S-12-0172 MCE DAD PS
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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 vague
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and conclusory 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).
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“‘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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In addition, plaintiff’s complaint does not state a cause of action or allege the
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factual allegations underlying that cause of action. In this regard, plaintiff’s complaint reads as
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follows:
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ON 6 11 2010 PRISCILA M BALTAGAR FORGED
FORECLOSURE DOCUMENT “DECLARATION OF
COMPLIANCE CC SEC 2923(b) TO PROCEDE [sic]
FORECLOSURE ON 420 LAS PALMAS AVE IN
SACRAMENTO CA, IN VIOLATION OF FEDERAL AND
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LOCAL LAWS CAL SB 2923 & 2923.b AND US CODE TITLE 9
(ARBITRATION) AND LOCAL LAWS EVER SINCE 6 11 2010
FIN.CO DOES NOT RELEASE REFINANCING STATEMENT
(HUD PRESENTED REF, DOCUMENTS ON SEVERAL
OCASIONS [sic] WITHOUT RESULT) SPRINGLEAF CLAIMS
DEED AS LEGAL DOCUMENT THAT WOULD PROVE ANY
CONTACT ADMITTED GUILT IN COURT CASE IN SUP CT
IN SACRAMENTO (ALLOWING 3 MOS EXTENTION [sic] OF
REFINANCING PERIOD WHERE AGAIN DENIED ACCESS
TO HUD REFINANCE[.]
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(Compl. (Doc. No. 1) at 1.)
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Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
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complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
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state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
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and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
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does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
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enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, ---, 129 S. Ct. 1937, 1949 (2009) (quoting
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Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of particularity
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overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at
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649.
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Finally, plaintiff’s complaint appears to refer to a prior action between the parties
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that was apparently filed in the Sacramento County Superior Court. Under the Rooker-Feldman
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doctrine, federal district courts lack jurisdiction to review alleged errors in state court decisions.
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Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983) (holding that review
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of state court determinations can be obtained only in the United States Supreme Court). The
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doctrine applies to “cases of the kind from which the doctrine acquired its name: cases brought
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by state-court losers complaining of injuries caused by state-court judgments rendered before the
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district court proceedings commenced and inviting district court review and rejection of those
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judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “The
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purpose of the doctrine is to protect state judgments from collateral federal attack.” Doe &
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Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001). Pursuant to this
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doctrine, a federal district court is prohibited from exercising subject matter jurisdiction over a
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suit that is “a de facto appeal” from a state court judgment. Kougasian v. TMSL, Inc., 359 F.3d
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1136, 1139 (9th Cir. 2004). A federal district court may not examine claims that are inextricably
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intertwined with state court decisions, “even where the party does not directly challenge the
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merits of the state court’s decision but rather brings an indirect challenge based on constitutional
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principles.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n.4 (9th Cir. 2003). See also Ignacio v.
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Judges of U.S. Court of Appeals, 453 F.3d 1160, 1165-66 (9th Cir. 2006) (affirming district
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court’s dismissal of the case “because the complaint is nothing more than another attack on the
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California superior court’s determination in [plaintiff’s] domestic case”).
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For all of 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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Plaintiff has also filed a motion for a temporary restraining order. The standards
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governing the issuance of temporary restraining orders are “substantially identical” to those
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governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D.
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Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). “[I]njunctive relief [is] an
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extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled
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to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “The proper
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legal standard for preliminary injunctive relief requires a party to demonstrate ‘that he is likely to
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succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
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relief, that the balance of equities tips in his favor, and that an injunction is in the public
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interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555
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U.S. at 20); see also Center for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011)
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(“After Winter, ‘plaintiffs must establish that irreparable harm is likely, not just possible, in order
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to obtain a preliminary injunction.”); Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d
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1046, 1052 (9th Cir. 2009). The Ninth Circuit has also held that “[a] preliminary injunction is
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appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were
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raised and the balance of hardships tips sharply in the plaintiff’s favor.” Alliance for Wild
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Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (quoting Lands Council v. McNair,
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537 F.3d 981, 97 (9th Cir. 2008) (en banc)).2
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As discussed above, the undersigned will recommend that plaintiff’s complaint be
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dismissed for failure to state a claim upon which relief can be granted. In light of that
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recommendation, it is unlikely that plaintiff will succeed on the merits of the claims alleged in
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his complaint. Moreover, for the same reasons, the court finds that plaintiff has not raised
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serious questions with respect to the merits of his claims. Accordingly, the undersigned will
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recommend that plaintiff’s motion for a temporary restraining order be denied.
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Accordingly, IT IS RECOMMENDED that:
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1. Plaintiff’s January 24, 2012 application to proceed in forma pauperis (Doc. No.
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2) be denied;
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The Ninth Circuit has found that this “serious question” version of the circuit’s sliding
scale approach survives “when applied as part of the four-element Winter test.” Alliance for Wild
Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). “That is, ‘serious questions going to
the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance
of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of
irreparable injury and that the injunction is in the public interest.” Id. at 1135.
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2. Plaintiff’s January 24, 2012 complaint be dismissed without leave to amend;
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3. Plaintiff’s February 2, 2012 ex parte motion for a temporary restraining order
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(Doc. No. 3) be denied; and
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4. 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: February 6, 2012.
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