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