Smith v. Citrus Heights Water District

Filing 8

FINDINGS and RECOMMENDATIONS, recommending that purported 4 6 Amended Complaints be dismissed without leave to amend; plaintiff's 7 Motion for Limitless Credit Card through Federal Reserve be denied; and Clerk be directed to close this cas e, signed by Magistrate Judge Edmund F. Brennan on 8/13/2013. These Findings and Recommendations are SUBMITTED 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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JEROME VERNON SMITH,
Plaintiff,

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No. 2:13-cv-1264-KJM-EFB PS

vs.

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CITRUS HEIGHTS WATER DISTRICT,
as part of the SAN JUAN WATER
DISTRICT,

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Defendant.

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FINDINGS AND RECOMMENDATIONS
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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). On July 10, 2013,

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the undersigned granted plaintiff’s request for leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915, but dismissed plaintiff’s complaint with leave to amend pursuant to 28 U.S.C.

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§ 1915(e)(2). ECF No. 3. The order noted that although the purported basis for this court’s

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subject matter jurisdiction was/is his claim for damages under the Comprehensive Environmental

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Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601, et seq., private

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damages are unavailable under CERCLA. Id. at 3-4. Therefore, plaintiff’s CERCLA claim and

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his complaint were dismissed. Plaintiff was granted leave to file an amended complaint if he

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could allege a cognizable legal theory against a proper defendant and sufficient facts in support

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of that cognizable legal theory. Id. at 4.
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Plaintiff filed a “statement” on July 9, 2013,1 ECF No. 4, and then an amended complaint

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on July 30, 2013, ECF No. 6.2 The court will construe each of plaintiff’s filings as a purported

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amended complaint. However, neither of the filings states a cognizable claim or a basis for this

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court’s jurisdiction. Accordingly, as discussed below, it is recommended that those filings be

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dismissed without further leave to amend.

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As noted in the July 10, 2013 order, although pro se pleadings are liberally construed, see

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be

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dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief

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that is plausible on its face.” 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)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

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conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level on the assumption

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that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate

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based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to

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support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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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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The statement was not referenced in this court’s July 10, 2013 order since it had not yet
appeared on the docket at the time that order was issued.
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Also on July 30, 2013, plaintiff filed a motion for a limitless credit card through the
Federal Reserve. ECF No. 7. However, because plaintiff has not shown he is entitled to such
relief, that request should be denied.
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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’s purported amended complaints are nearly incomprehensible. See

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generally ECF Nos. 4, 6. Neither of the filings alleges any facts that would support a cognizable

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legal claim or a basis for this court’s jurisdiction. Nor do they cure any of the defects addressed

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in the July 10, 2013 order. See ECF No. 3 at 3-4. Because further amendment would be futile,

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the purported amended complaints should be dismissed without leave to amend. Noll v. Carlson,

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809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily would permit a pro se plaintiff

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to amend, leave to amend should not be granted where it appears amendment would be futile).

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/////
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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s purported amended complaints, ECF Nos. 4 and 6, be dismissed without

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leave to amend;
2. Plaintiff’s motion for a limitless credit card through the Federal Reserve, ECF No. 7,
be denied; 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: August 13, 2013.

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