Korte v. United States of America et al

Filing 4

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/8/15 ORDERING that Plaintiff's 7/1/15 Motion For Appointment of Counsel 3 is DENIED; IT IS RECOMMENDED that Plaintiff's 7/1/15 APPLICATION to PROCEED IN FORMA PAUPERIS 2 be denied; Plaintiff's 7/1/15 Complaint 1 be dismissed without leave to amend; and This action be dismissed; These Findings and Recommendations will be submitted to U.S. District Judge Kimberly J. Mueller. Objections to these F&Rs due within fourteen (14) days.(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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EUGENE KORTE,

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No. 2:15-cv-1398 KJM DAD PS

Plaintiff,
v.

ORDER AND

THE UNITED STATES OF AMERICA, et
al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff Eugene Korte is proceeding in this action pro se. This matter was referred to the

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undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has

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requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C. §

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1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis

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status does not complete the inquiry required by the statute. “‘A district court may deny leave to

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proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that

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the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th

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Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See

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also Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court to

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examine any application for leave to proceed in forma pauperis to determine whether the
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proposed proceeding has merit and if it appears that the proceeding is without merit, the court is

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bound to deny a motion seeking leave to proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:
A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks.
FED. R. CIV. P. 8(a).
Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing

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that plaintiff is entitled to relief. In this regard, plaintiff’s complaint and attached exhibits

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consists of 246 pages of vague and conclusory allegations without any supporting factual
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allegations. The defendants named in the complaint include, but are not limited to, the United

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States of America, the State of California, the County of Solano, Discover Bank, the County of

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San Francisco, Comcast and AT&T. In his complaint plaintiff sets forth a series of

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“QUESTIONS PRESENTED,” including “[w]ether the refusal of state and federal law

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enforcement agencies to protect the people according to their mandates constitutes

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discrimination,” and “[w]hether the ‘unwritten’ rule that pro se persons are sport, even if the law

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is on their side, and are to be ruled against at all costs violated non-attorney Pro Se litigant’s First

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Amendment Right to Petition the Government.” (Compl. (Dkt. No. 1) at 6-7.)

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In the complaint plaintiff then alleges multiple causes of action including, violation of the

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Fair Debt Collection Practices Act, 15 U.S.C. ' 1692 and breach of contract. Those causes of

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action, however, are asserted without any reference to any facts. For example, the complaint does

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not identify the actions of any defendant, any dates or any locations. Moreover, the complaint

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does not even identify which causes of action are asserted against which defendants.

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Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a

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complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that

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state the elements of each claim plainly and succinctly. FED. R. CIV. P. 8(a)(2); Jones v.

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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels

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and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor

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does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

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enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,

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557. A plaintiff must allege with at least some degree of particularity overt acts which the

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defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
The complaint also alleges that “[a]fter plaintiff removed Solano County Superior Court

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Case Numbers FCM127349 and FCM127720 to District Court because of Fraud . . . the ‘torture’

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escalated to intolerable levels in the Superior Court of Solano County, the District Court in

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Sacramento, the Ninth Circuit Court of Appeals in San Francisco, and the United States Supreme

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Court in Washington, D.C.” (Compl. (Dkt. No. 1) at 20.) In the regard, in his complaint plaintiff

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asks that this court “Reverse/Review the lower court’s decision in Solano County Case Nos.

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FCM136014 and FCM127349.” (Id. at 22.)

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Under the Rooker-Feldman doctrine a federal district court is precluded from hearing

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“cases brought by state-court losers complaining of injuries caused by state-court judgments

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rendered before the district court proceedings commenced and inviting district court review and

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rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

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284 (2005). The Rooker-Feldman doctrine applies not only to final state court orders and

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judgments, but to interlocutory orders and non-final judgments issued by a state court as well.

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Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Worldwide

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Church of God v. McNair, 805 F.2d 888, 893 n. 3 (9th Cir. 1986).
The Rooker-Feldman doctrine prohibits “a direct appeal from the final judgment of a state

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court,” Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003), and “may also apply where the parties

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do not directly contest the merits of a state court decision, as the doctrine prohibits a federal

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district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a

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state court judgment.” Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008)

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(internal quotation marks omitted). “A suit brought in federal district court is a ‘de facto appeal’

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forbidden by Rooker-Feldman when ‘a federal plaintiff asserts as a legal wrong an allegedly

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erroneous decision by a state court, and seeks relief from a state court judgment based on that

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decision.’” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010) (quoting Noel, 341 F.3d

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at 1164). See also Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (“[T]he Rooker-Feldman

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doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in

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‘which a party losing in state court’ seeks ‘what in substance would be appellate review of the

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state judgment in a United States district court, based on the losing party’s claim that the state

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judgment itself violates the loser’s federal rights.’”) (quoting Johnson v. De Grandy, 512 U.S.

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997, 1005-06 (1994), cert. denied 547 U .S. 1111 (2006)). “Thus, even if a plaintiff seeks relief

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from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also

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alleges a legal error by the state court.” Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013).

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[A] federal district court dealing with a suit that is, in part, a
forbidden de facto appeal from a judicial decision of a state court
must refuse to hear the forbidden appeal. As part of that refusal, it
must also refuse to decide any issue raised in the suit that is
‘inextricably intertwined’ with an issue resolved by the state court
in its judicial decision.

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Doe, 415 F.3d at 1043 (quoting Noel, 341 F.3d at 1158). See also Exxon, 544 U.S. at 286 n. 1 (“a

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district court [cannot] entertain constitutional claims attacking a state-court judgment, even if the

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state court had not passed directly on those claims, when the constitutional attack [is]

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‘inextricably intertwined’ with the state court’s judgment”) (citing Feldman, 460 U.S. at 482 n.

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16)); Bianchi v. Rylaarsdam, 334 F.3d 895, 898, 900 n. 4 (9th Cir. 2003) (“claims raised in the

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federal court action are ‘inextricably intertwined’ with the state court’s decision such that the

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adjudication of the federal claims would undercut the state ruling or require the district court to

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interpret the application of state laws or procedural rules”) (citing Feldman, 460 U.S. at 483 n. 16,

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485). Here, the Rooker-Feldman doctrine precludes this federal district from hearing plaintiff’s

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federal action
Accordingly, for the reasons set forth above, plaintiff’s complaint should be dismissed.

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LEAVE TO AMEND

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The undersigned has carefully considered whether plaintiff may amend his pleading to

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state a meritorious claim over which the court would have subject matter jurisdiction. “Valid

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reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.”

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California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988).

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See also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th

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Cir. 1983) (holding that while leave to amend shall be freely given, the court does not have to

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allow futile amendments). In light of the deficiencies noted above, and the nature of plaintiff’s

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allegations, the undersigned finds that it would be futile to grant plaintiff leave to amend in this

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case.

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APPOINTMENT OF COUNSEL
On July 1, 2015, plaintiff filed a motion seeking the appointment of counsel. (Dkt. No. 3.)
Plaintiff is informed that federal district courts lack authority to require counsel to represent
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indigent plaintiffs in civil cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). The court may request the voluntary assistance of counsel under the federal in forma

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pauperis statute, but only under exceptional circumstances. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). The test for exceptional circumstances requires the court to evaluate the

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plaintiff’s likelihood of success on the merits and the plaintiff’s ability to articulate his or her

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claims. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718

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F.2d 952, 954 (9th Cir. 1983).
Here, because plaintiff’s complaint is being dismissed, the undersigned cannot find that

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plaintiff is likely to succeed on the merits. Accordingly, IT IS HEREBY ORDERED that

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plaintiff’s July 1, 2015 motion for the appointment of counsel (Dkt. No. 3) is denied.

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Also, IT IS HEREBY RECOMMENDED that:
1. Plaintiff’s July 1, 2015 application to proceed in forma pauperis (Dkt. No. 2) be

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denied;
2. Plaintiff’s July 1, 2015 complaint (Dkt. No. 1) be dismissed without leave to

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amend; and
3. This action be dismissed.
These findings and recommendations will be 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)(1). Within fourteen (14)

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. A document containing objections should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may, under certain circumstances, waive the right to appeal

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

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Dated: October 8, 2015

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DAD:6
Ddad1\orders.pro se\korte1398.dism.lta.ord.docx

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