Peden v. Lopez et al

Filing 3

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/20/2015 GRANTING 2 Motion to Proceed IFP; RECOMMENDING that this action be dismissed without prejudice; REFERRING this matter to Judge Troy L. Nunley; ORDERING that any objections be filed within fourteen (14) days. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY ELVIS PEDEN,

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Plaintiff,

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v.

No. 2:15-cv-0244 TLN GGH PS

ORDER AND FINDINGS AND
RECOMMENDATIONS

ZANE LOPEZ, et al.,
Defendants.

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Plaintiff is proceeding in this action pro se and has filed a request 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. §
1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.
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

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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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The complaint alleges that defendant Lopez, a downtown guide in Sacramento, discovered

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that plaintiff, a self-employed handyman for various merchants in Old Sacramento, was

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incarcerated for fifty days in the fall of 2014. Plaintiff asserts that Lopez told defendant Paul and

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other merchants about plaintiff’s incarceration, resulting in their rejection of him, and lost work.

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As a consequence of defendant Lopez’s slander, plaintiff claims he was accosted by police, and

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asked to leave based on a report by Lopez and Paul that plaintiff had stolen candy from Paul’s

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store and given it to children. (ECF No. 1.) The complaint alleges the following violations:
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“conspiracy, fraud, perjury, slander, defamation, hate crime under color of authority, and 18

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U.S.C. § 242.”

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The court is unable to determine a jurisdictional basis for this action. A federal court is a

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court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution

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and by Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S. Ct. 1673,

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1675 (1994). U.S. Const. Art. III, § 1 provides that the judicial power of the United States is

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vested in the Supreme Court, “and in such inferior Courts as the Congress may from time to time

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ordain and establish.” Congress therefore confers jurisdiction upon federal district courts, as

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limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697-99, 112 S.

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Ct. 2206, 2212 (1992). Lack of subject matter jurisdiction may be raised at any time by either

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party or by the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593,

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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).

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For diversity jurisdiction pursuant to 28 U.S.C. § 1332, each plaintiff’s state citizenship

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must be diverse from each defendant, and the amount in controversy must exceed $75,000. For

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federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise

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under a federal law or the United States Constitution, (2) allege a “case or controversy” within the

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meaning of Article III, section 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369

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U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).

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In his complaint, plaintiff has failed to allege a violation of a federal statute. Almost all of
his claims allege violations of state law. The alleged violation of a federal criminal statute, 18
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U.S.C. § 242, may not be brought against any of the defendants because it is limited to state

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officials who act under color of law to willfully deprive a person of constitutional rights. Hope v.

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Pelzer, 536 U.S. 730, 739 (2002). None of the named defendants in this case are state officials.

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Furthermore, plaintiff has no standing to pursue alleged violations of 18 U.S.C. § 242.

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Criminal statutes do not provide a private right of action. See, e.g., Ellis v. City of San Diego,

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176 F.3d 1183, 1189 (9th Cir.1999) (district court properly dismissed claims brought under the

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California Penal Code because the statutes do not create enforceable individual rights). It is also

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well established that private actions are maintainable under federal criminal statutes in only very

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limited circumstances. Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975);

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Bass Angler Sportsman Soc. v. United States Steel Corp., 324 F.Supp. 412, 415 (S.D.Ala.1971),

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citing United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082 (1878); United States v. Jourden, 193

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F. 986 (9th Cir.1912). See also Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980) (18 U.S.C.

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§§ 241, 242 provide no private right of action and cannot form basis for civil suit). Therefore,

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plaintiff may not pursue such claims under this federal criminal statute.

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Nor is there diversity jurisdiction. Plaintiff is a resident of Sacramento, and the complaint

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does not allege that any defendants are citizens of another state. According to the complaint,

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defendant Lopez is employed as a downtown guide in Sacramento, by the Sacramento Downtown

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Partnership. Defendant Paul is owner of the Candy Barrel store in Old Sacramento.

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Finally, there appears to be no possible basis for jurisdiction under 42 U.S.C. § 1983.
Plaintiff will not be able to show that a Sacramento City downtown partnership is a state actor.
It is also clear that leave to amend would be futile in light of the clear jurisdictional

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deficiencies outlined above. For these reasons, the court recommends that this action be

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dismissed with no leave to amend

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Good cause appearing, IT IS ORDERED that: Plaintiff’s request for leave to proceed in
forma pauperis is granted.

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IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.

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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 Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these findings and recommendations, plaintiff 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.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 20, 2015

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Peden0244.fr

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