Phelps v. Superior Court of California County of Solano et al

Filing 4

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/30/15 ORDERING that. Plaintiff's Request for leave to proceed in forma pauperis 2 is GRANTED; The complaint is DISMISSED, with leave to file an amended complaint within twenty-eight (28) days from the date of service of this Order. Plaintiff's Request for permission to use the court's electronic filing system, filed 12/1/14 3 , is DENIED.(Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JANET DENISE PHELPS, 12 Plaintiff, 13 14 15 16 v. No. 2:14-cv-2794 MCE GGH PS ORDER STATE OF CALIFORNIA SUPERIOR COURT COUNTY OF SOLANO, et al., Defendants. 17 18 Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma 19 pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 20 302(21), pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 22 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted. 23 SCREENING OF THE COMPLAINT 24 The determination that plaintiff may proceed in forma pauperis does not complete the 25 required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at 26 any time if it determines the allegation of poverty is untrue, or if the action is frivolous or 27 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 28 an immune defendant. 1 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989); Franklin, 745 F.2d at 1227. 8 9 A complaint must contain more than a “formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 10 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 11 “The pleading must contain something more...than...a statement of facts that merely creates a 12 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 13 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 14 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 15 v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 16 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows 17 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 18 Id. 19 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 20 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). 21 Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff 22 proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. 23 See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. 24 Plaintiff has filed this action due to her displeasure with the outcome of her state court 25 action against defendant Misthos, which was dismissed by the superior court as a terminating 26 sanction based on her failure to respond to discovery. That judgment was affirmed with 27 modification of damages by the Court of Appeals. See Phelps v. Misthos, 2012 WL 5989196 28 (Nov. 29, 2012). The present complaint contends that the trial court in that case failed to 2 1 accommodate her “severe disabilities,” under the ADA, and in doing so denied her “fundamental 2 right of access to the courts.” (Compl. at 1, 2.) Plaintiff also re-alleges the underlying facts in 3 that case. (Id. at 3.) Plaintiff names as defendants the Superior Court of Solano County, the State 4 Court of Appeals, various judges sitting on those courts, her opponent in the state court action, the 5 attorney involved in the contract dispute underlying that action, as well the attorney’s law partner 6 and their law firm. 7 First, judges are absolutely immune from civil liability for damages for acts performed in 8 their judicial capacity. Pierson v. Ray, 386 U.S. 547, 553-559, 87 S. Ct. 1213 (1967). An act is 9 “judicial” when it is a function normally performed by a judge and the parties dealt with the judge 10 in his judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099 (1978). The 11 complaint alleges that both the superior court and the appellate court judges denied plaintiff her 12 right access the courts by their refusal to accommodate her disabilities, in violation of the ADA. 13 Since the alleged actions by the superior court and appellate court judges were made in their 14 judicial capacity, defendants Beeman, Banke, Marchiano, and Margulies must be dismissed. 15 Aside from potential claims against the superior and appellate courts, because the state 16 court proceedings are no longer ongoing, but have resolved adversely to plaintiff, there is no 17 federal jurisdiction which would permit this court to interfere in regard to the remaining 18 defendants. Plaintiff’s allegations of errors in the state court are barred by the Rooker–Feldman 19 doctrine because they expressly entail review of a state court’s prior judgment. 20 A federal district court does not have jurisdiction to review legal errors in state court 21 decisions. Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 22 1311–1312, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415, 44 S. Ct. 23 149, 150, 68 L.Ed. 362 (1923). This doctrine has not aged well with time. In recently advocating 24 the abolishment of a doctrine not at issue here, Justice Stevens characterized the lack of vitality in 25 Rooker–Feldman: 26 27 28 Rather than preserving whatever vitality that the “exception” has retained as a result of the Markham dicta, I would provide the creature with a decent burial in a grave adjacent to the resting place of the Rooker–Feldman doctrine. See Lance v. Dennis, 546 U.S. 459, ––––, 126 S.Ct. 1198, 1204, 163 L.Ed.2d 1059 (2006) 3 1 (STEVENS, J., dissenting). 2 Marshall v. Marshall, 547 U.S. 293, 318, 126 S. Ct. 1735, 1752, 164 L.Ed.2d 480 (2006) 3 (Stevens, J. dissenting). However, while consigning Rooker–Feldman to life support, a majority 4 of the Supreme Court has not laid the doctrine to rest in the grave prepared by Justice Stevens: 5 Rooker–Feldman, we explained, is a narrow doctrine, confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” 544 U.S., at 284, 125 S.Ct. 1517, 161 L.Ed.2d 454. 6 7 8 9 Lance v. Dennis, 546 U.S. 459, 464, 126 S. Ct. 1198, 1201, 163 L.Ed.2d 1059 (2006) quoting 10 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 11 L.Ed.2d 454 (2005). The 9th Circuit has also clarified the doctrine in Noel v. Hall, 341 F.3d 1148 (9th Cir. 12 13 2003). A federal plaintiff who asserts as a legal wrong an allegedly erroneous decision by a state 14 court, and seeks relief from a state court judgment based on that decision, is barred by Rooker– 15 Feldman because the federal court lacks subject matter jurisdiction. Id. at 1164. If, on the other 16 hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse 17 party, Rooker–Feldman does not bar jurisdiction. Id. But even if a federal plaintiff is expressly 18 seeking to set aside a state court judgment, Rooker–Feldman does not apply unless a legal error 19 by the state court is the basis for that relief. See Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 20 (9th Cir. 2004). Nevertheless, a federal district court may not examine claims that are 21 inextricably intertwined with state court decisions, “even where the party does not directly 22 challenge the merits of the state court's decision but rather brings an indirect challenge based on 23 constitutional principles.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n. 4 (9th Cir.2003). See 24 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 25 454 (2005) (noting that the Rooker–Feldman doctrine bars “cases brought by state-court losers 26 complaining of injuries caused by state-court judgments rendered before the district court 27 proceedings commenced and inviting district court review and rejection of those judgments”). 28 //// 4 1 Particularly pertinent is authority to the effect that judgments based on terminating 2 sanctions for discovery disobedience are barred by Rooker-Feldman and are considered res 3 judicata. Warkentin v. Countrywide Home Loans, 2011 WL 3882774, *1-2 (E.D. Cal. Sep. 2, 4 2011). Under California law, a dismissal ordered as a discovery sanction is considered a 5 dismissal with prejudice and a judgment on the merits. Id. Rooker–Feldman survives enough to 6 require dismissal of all of the defendants except the superior and appellate courts, as discussed 7 infra. 8 9 Furthermore, the allegations against defendant Misthos are the same as those raised in the state court action and are therefore barred by res judicata. (Compl. at 3.) “Res judicata bars a suit 10 when ‘a final judgment on the merits of an action precludes the parties or their privies from 11 relitigating issues that were or could have been raised in that action.’” ProShipLine Inc. v. Aspen 12 Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir.2010) (quoting Allen v. McCurry, 449 U.S. 90, 13 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Res judicata is applicable “when there is ‘(1) an 14 identity of claims; (2) a final judgment on the merits; and (3) identity or privity between parties.’” 15 ProShipLine Inc., 609 F.3d at 968 (quoting Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th 16 Cir.2002)). 17 Here, plaintiff alleges multiple contract violations related to an agreement concerning a 18 real estate lease with an option to purchase, entered between plaintiff as the lessee/prospective 19 purchaser and Misthos as the lessor/prospective seller. These same allegations were raised in the 20 state court proceedings. 21 The complaint also names David Timko, the attorney plaintiff claims represented herself 22 and Mr. Misthos during the lease agreement process. Although Mr. Timko was not a party to the 23 state court action, plaintiff raises the same claims against this attorney that she raised against 24 plaintiff in state court. Aside from the Rooker-Feldman bar, plaintiff has not stated a federal 25 claim against defendant Timko, but asserts only contract violations under state law. 26 A federal court is a court of limited jurisdiction, and may adjudicate only those cases 27 authorized by the Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co., 511 28 U.S. 375, 377, 114 S. Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1 provides that the judicial 5 1 power of the United States is vested in the Supreme Court, “and in such inferior Courts as the 2 Congress may from time to time ordain and establish.” Congress therefore confers jurisdiction 3 upon federal district courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 4 504 U.S. 689, 697-99, 112 S. Ct. 2206, 2212 (1992). Lack of subject matter jurisdiction may be 5 raised at any time by either party or by the court. See Attorneys Trust v. Videotape Computer 6 Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 7 The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal 8 question” and “diversity” jurisdiction, respectively. Statutes which regulate specific subject 9 matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J. 10 Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible 11 assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v. 12 Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1945). A federal claim which is so insubstantial as 13 to be patently without merit cannot serve as the basis for federal jurisdiction. See Hagans v. 14 Lavine, 415 U.S. 528, 537-38, 94 S. Ct. 1372, 1379-80 (1974).1 15 16 Plaintiff has failed to allege a violation of the constitution or a federal statute vis a vis defendant Timko. Therefore, this defendant should be dismissed. 17 18 The complaint also names Timko and LaSorsa law firm and Linda LaSorsa as defendants; however, the complaint contains no allegations against them. 19 Stripped to its essence, this action is one for federal court review of state court 20 proceedings. The court finds the instant action amounts to an attempt to litigate in federal court 21 matters that are inextricably intertwined with state court decisions. Accordingly, the court will 22 recommend that defendants Misthos, Timko, LaSorsa, and Timko and LaSorsa Law Firm be 23 dismissed for lack of subject matter jurisdiction under Rooker–Feldman. 24 25 26 27 1 For diversity jurisdiction pursuant to 28 U.S.C. § 1332, each plaintiff’s state citizenship must be diverse from each defendant, and the amount in controversy must exceed $75,000. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a “case or controversy” within the meaning of Article III, section 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962). Plaintiff does not allege diversity jurisdiction. 28 6 1 Even if Rooker-Feldman were to be construed as inapplicable to this action where plaintiff 2 complains of the courts’ denial of her rights under the ADA, and has added parties who were not 3 parties to the state court action, all of the parties except for the state superior and appellate courts 4 must still be dismissed because the individual defendants may not be sued for Title II ADA 5 violations, because the statute is limited to suit against public entities. See Vinson v. Thomas, 6 288 F.3d 1145, 1155-56 (9th Cir. 2002). 7 Plaintiff will be given leave to amend for the superior and appellate courts only. Although 8 typically these courts are considered arms of the state and protected by sovereign immunity, see 9 Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir.1987) (“a 10 suit against the Superior Court is a suit against the State, barred by the eleventh amendment”) 11 (citation omitted), an exception exists for Title II cases brought under the ADA. Hason v. 12 Medical Bd. Of California, 279 F.3d 1167, 1170 (9th Cir. 2002) (noting Congress specifically 13 abrogated state sovereign immunity in enacting Title II of the ADA). 14 Nevertheless, “[c]courts have been loath to recognize statutory authorizations to review 15 state court judgments.” Doe v. Mann, 415 F.3d 1038, 1043 n. 7 (9th Cir. 2005), quoting Dale v. 16 Moore, 121 F.3d 624, 627 (11th Cir.1997) (holding the Americans With Disabilities Act “does 17 not provide an independent source of federal court jurisdiction that overrides the application of 18 the Rooker–Feldman doctrine” even though the ADA subjects state public entities to the terms of 19 the act). In rare cases, where Congress chooses to permit federal review of state court judgments, 20 it has been through a specific exception to Rooker-Feldman or a specific grant of authority. Doe, 21 415 F.3d at 1044. In Doe, the statutory language of a federal statute addressing foster care 22 placement and termination of parental rights specifically directed that the “Indian child’s tribe 23 may petition any court of competent jurisdiction to invalidate such action upon a showing that 24 such action violated [provisions of the Indian Child Welfare Act]. The Doe court found this 25 language, among other reasons, to be a specific grant to federal courts to review state custody 26 proceedings in certain situations. Id. at 1047. Therefore, Rooker-Feldman did not prevent review 27 in those cases. Id. Rooker-Feldman has barred a civil rights action containing alleged violations 28 of Title II of the ADA, however, where an attorney sought to appeal a state bar suspension 7 1 decision, because the federal appeal constituted a “forbidden de facto appeal from suspension 2 proceedings, and the remaining claims were inextricably intertwined with the forbidden appeal.” 3 See, Torres v. State Bar of California, 245 Fed. Appx. 644, 2007 WL 2399878 (9th Cir. 2007). 4 It is unclear from the complaint whether plaintiff seeks to claim the state superior and 5 appellate courts violated her rights under the ADA by not providing accommodations to her in her 6 state court action, or whether she seeks review of the substance of that action. Therefore, plaintiff 7 will be permitted to amend the complaint only as to defendants Superior Court of California, 8 County of Solano, and First District Court of Appeal, Division One. Plaintiff is advised that if 9 she includes any other defendants previously named in her amended complaint, they will be 10 11 dismissed for the reasons stated herein. If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 12 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 13 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how 14 each named defendant is involved. 15 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 16 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 17 complaint be complete in itself without reference to any prior pleading. This is because, as a 18 general rule, an amended complaint supersedes the original complaint. See Forsyth v. Humana, 19 Inc., 114 F.3d 1467, 1474 (9th Cir.1997), overruled in part on other grounds, Lacey v. Maricopa 20 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). Once plaintiff files an amended complaint, 21 the original pleading no longer serves an operative function in the case. Therefore, in an 22 amended complaint, as in an original complaint, each claim and the involvement of each 23 defendant must be sufficiently alleged. 24 REQUEST FOR PERMISSION TO UTILIZE ELECTRONIC FILING SYSTEM 25 Plaintiff has also filed a request for permission to utilize the court’s electronic filing 26 (“ECF”) system. (ECF. No. 3). The local rules of this court provide that “[a]ny person appearing 27 pro se may not utilize electronic filing except with the permission of the assigned Judge or 28 Magistrate Judge.” E. D. Cal. L. R. 133(b)(2). Requests to use electronic filing may be 8 1 submitted as written motions setting out an explanation of reasons for the requested exception. E. 2 D. Cal. L. R. 133(b)(3). 3 Plaintiff has provided no reasons for the need to use electronic filing. Therefore, her 4 request is denied. 5 CONCLUSION 6 Good cause appearing, IT IS ORDERED that: 7 1. Plaintiff's request for leave to proceed in forma pauperis is granted. 8 2. The complaint is dismissed for the reasons discussed above, with leave to file an 9 amended complaint within twenty-eight (28) days from the date of service of this Order. The 10 amended complaint must comply with the requirements of the Federal Rules of Civil Procedure, 11 and the Local Rules of Practice; the amended complaint must bear the docket number assigned 12 this case and must be labeled “Amended Complaint;” plaintiff must file an original and two 13 copies of the amended complaint; failure to file an amended complaint will result in a 14 recommendation that this action be dismissed. 15 3. Plaintiff’s request for permission to use the court’s electronic filing system, filed 16 December 1, 2014, (ECF No. 3), is denied. 17 Dated: January 30, 2015 18 /s/ Gregory G. Hollows 19 20 UNITED STATES MAGISTRATE JUDGE GGH:076/Phelps2794.ifp 21 22 23 24 25 26 27 28 9

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