Gianelli v. San Joaquin County Sheriff's Department
Filing
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FINDINGS and RECOMMENDATIONS, recommending that plaintiff's 2 Motion to Proceed In Forma Pauperis be denied; action be dismissed without prejudice; and case be closed, signed by Magistrate Judge Kendall J. Newman on 10/23/2012. These F/Rs are SUBMITTED to US District Judge Kimberly J. Mueller. Within 14 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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APRIL D GIANELLI,
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Plaintiff,
No. 2:12-cv-2613 KJM KJN PS
vs.
SAN JOAQUIN COUNTY
SHERIFF DEPARTMENT,
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Defendant.
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FINDINGS AND RECOMMENDATIONS
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Plaintiff April D. Gianelli, proceeding in this action without counsel, has
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requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 Pursuant to 28
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U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines that the
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allegation of poverty is untrue, or if 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.
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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This action proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and
28 U.S.C. § 636(b)(1).
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
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Cir. 1989); Franklin, 745 F.2d at 1227.
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To avoid dismissal for failure to state a claim, a complaint must contain more than
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“naked assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a
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cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a
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claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.
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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129
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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be
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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200
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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.
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Rhodes, 416 U.S. 232, 236 (1974).
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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519,
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520-21 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it
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is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in
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forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v.
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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.
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In this case, plaintiff alleges that an unlawful detainer judgment was entered
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against her sometime in September 2012, and that she filed for bankruptcy on September 21,
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2012. (Dkt. No. 1 at 1.) Plaintiff contends that although the bankruptcy automatic stay
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purportedly stops all eviction actions and that the initial eviction date of October 6, 2012 was
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cancelled, the San Joaquin Sheriff Department on October 18, 2012 again served her with an
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eviction notice and indicated that it intended to move forward with eviction. (Dkt. No. 1 at 1-2.)
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Plaintiff claims that the San Joaquin Sheriff Department is in violation of the bankruptcy laws,
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and that as a result of its actions, she is threatened with having to move and had to postpone a
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scheduled surgery. (Dkt. No. 1 at 2.)
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Plaintiff’s complaint does not identify any specific violation of a federal statute or
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a federal constitutional provision, other than violation of the bankruptcy laws. Plaintiff also does
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not request any particular relief, although it can be inferred that she seeks to stay any eviction
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proceedings while her bankruptcy case is adjudicated. Records from the United States
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Bankruptcy Court for the Eastern District of California indicate that plaintiff has a pending
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Chapter 7 bankruptcy petition, which was filed, as plaintiff alleged, on September 21, 2012. See
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Bankruptcy Petition No. 12-37035, at http://www.pacer.gov. Based on plaintiff’s allegations, it
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appears that the appropriate forum in which to seek relief from defendant’s actions would be in
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the bankruptcy court. Therefore, the court will recommend that this action be dismissed, but
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without prejudice to plaintiff’s ability to pursue any appropriate relief in the bankruptcy court.
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s request to proceed in forma pauperis (dkt. no. 2) be DENIED;
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2. The action be DISMISSED WITHOUT PREJUDICE; and
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3. The case be closed.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days 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.” Any reply to the objections
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shall be served on all parties and filed with the court within fourteen (14) days after service of the
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objections. The parties are 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. Turner v. Duncan, 158 F.3d 449, 455 (9th
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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
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IT IS SO RECOMMENDED.
DATED: October 23, 2012
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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