Hyon v. Shimoguchi, et al

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 05/29/12 RECOMMENDING that the 2 Motion to Proceed In Forma Pauperis be granted, that the 1 Complaint be dismissed without leave to amend and this be case closed. Objections to these F&Rs due within 14 days; 2 Motion and 1 Complaint referred to Judge John A. Mendez. (Benson, 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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JUNHO HYON,
Plaintiff,

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vs.
SEI SHIMOGUCHI; COMMISSION
ON JUDICIAL PERFORMANCE;
and DOES 1-10, inclusive,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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No. CIV 12-1235 JAM EFB PS

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). See Dckt. No. 2. Accordingly, the

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undersigned recommends the request to proceed in forma pauperis be granted. 28 U.S.C.

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§ 1915(a).

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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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Here, plaintiff alleges that the Commission on Judicial Performance and its staff counsel,

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Sei Shimoguchi, were negligent and violated “Federal Rule 1.01” by rejecting plaintiff’s

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repeated requests to investigate and censure a California judge. Dckt. No. 1 at 2, 6. However,

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plaintiff’s claim against the Commission on Judicial Performance must be dismissed because the

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Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a

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state or state agency unless the state or the agency consents to such suit, and the Commission on

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Judicial Performance has not consented to suit. See Quern v. Jordan, 440 U.S. 332 (1979);

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Alabama v. Pugh, 438 U.S. 781 (1978); Lupert v. California State Bar, 761 F.2d 1325, 1327 (9th

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Cir. 1985); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). The claim against

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Shimoguchi is also barred by the Eleventh Amendment since plaintiff’s claims against

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Shimoguchi are based entirely on Shimoguhi’s conduct in carrying out his/her official duties,

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and Shimoguchi has not consented to suit. Pennhurst State School & Hosp. v. Halderman, 465

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U.S. 89, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (“[A] claim that state officials violated state

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law in carrying out their official responsibilities is a claim against the State that is protected by

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the Eleventh Amendment.”); Aholelei v. Dep’t of Public Safety, 488 F.3d 1144, 1147 (9th Cir.

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2007) (“The Eleventh Amendment bars suits for money damages in federal court against a state,

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its agencies, and state officials acting in their official capacities.”).

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Moreover, even if plaintiff’s claims were not barred by the Eleventh Amendment,

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plaintiff does not allege a valid basis for this court’s subject matter jurisdiction. Although

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plaintiff contends that defendants violated “Federal Rule 1.01,” it is unclear what that rule is or

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whether it creates a private right of action. Further, to the extent plaintiff purports to allege a

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claim against Shimoguchi under 42 U.S.C. § 1983, that claim would fail. To state a claim under

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§ 1983, plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and

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(2) that the violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988). Here, plaintiff’s complaint fails to identify any constitutional

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rights that Shimoguchi allegedly violated, nor does plaintiff explain how Shimoguchi’s actions

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resulted in the deprivation of any constitutional right.
Therefore, the complaint will be dismissed. The undersigned has carefully considered

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whether plaintiff may amend his complaint to state a claim upon which relief can be granted.

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“Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and

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futility.” Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir.

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1988); see also Klamath–Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276,

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1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the court does not

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have to allow futile amendments). In light of the obvious deficiencies of plaintiff’s complaint

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

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis be granted;

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2. The complaint be dismissed without leave to amend; and

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3. The Clerk be directed to close this case.

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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)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 29, 2012.

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