Gonzalez v. Department (Bureau) of Real Estate et al

Filing 3

ORDER granting 2 Motion to Proceed IFP, signed by Magistrate Judge Gregory G. Hollows on 2/1/16. The complaint is DISMISSED with leave to file an amended complaint within 28 days from the date of service of this Order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL E. GONZALEZ,

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No. 2:15-cv-2448 GEB GGH PS

Plaintiff,
v.

ORDER

DEPARTMENT (BUREAU) OF REAL
ESTATE, 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. §
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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This case arises out of plaintiff’s disappointment with a decision against him in state

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court. Plaintiff was a real estate broker licensed in California who claims defendants conspired to

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unconstitutionally revoke his license on December 16, 2010. Plaintiff refers to two state court

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judgments which precipitated the events in this case. The undersigned has reviewed the opinions

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from those cases which reveal the following. Plaintiff represented a buyer in the purchase of a

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house which fell through. The buyer sued plaintiff to recover $7,550 she had paid to plaintiff.
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The parties disputed whether this was a refundable deposit. Although plaintiff prevailed at trial,

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the court having found this sum to be a nonrefundable payment, the former Department of Real

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Estate (“DRE”) initiated administrative disciplinary proceedings against plaintiff for his actions in

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disposing of the $7,550 without the buyer’s knowledge or consent. In an accusation, the DRE

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found that plaintiff’s actions in distributing the money to himself and to the seller’s attorney

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constituted fraud and/or negligence and recommended suspending or revoking his license. The

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accusation was mailed to plaintiff and when he did not respond within the time permitted, default

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was entered, as well as a final decision revoking his license, based on both the default and the

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determination that “the accusation had been proven by clear and convincing documentary

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evidence.” Plaintiff filed an appeal, claiming that due to a car accident resulting in physical

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limitations, he had been unable to pick up his mail containing the accusation and decision, but

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that DRE commissioner Jones had orally agreed to give notice to plaintiff’s attorneys in that case.

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Such notice was not given, according to plaintiff, and he received no actual notice of the default

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or default decision. The trial court denied plaintiff’s petition for writ of administrative mandamus

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as untimely. The appellate court affirmed. Gonzalez v. Bell, 2014 WL 787356 (Cal. Ct. App.

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Feb. 27, 2014) (affirmed also on the ground that the civil suit outcome did not control the

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administrative license process).1

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In this case, plaintiff has sued numerous defendants, claiming that the state trial court

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decision which vindicated him should have been “obeyed” as “a final adjudication of all primary

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rights” and enforced in the administrative proceedings which would have resulted in a decision in

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his favor on the license revocation case. ECF No. 1 at 6. Plaintiff claims that defendants Wyatt,

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Hardy-Erich, Chase, HBSC, Stepanyan, Hickman, Resmae, Cal-Western,2 DRE, Jones, Van

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Driel, Sughrue, Sommers, Davi, Moran, and Bell conspired with each other to disregard the trial

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This court takes judicial notice of the state court opinion. A court may take judicial notice of
court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United
States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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Plaintiff has named defendant Cal-Western Reconveyance Corporation in the body of the
complaint, but has not named this defendant in the caption of the complaint. See ECF No. 1at 5.
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court judgment and filed a “false accusation while plaintiff was disabled and inactive,” to cause

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his real estate license to be revoked. Id.

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While the majority of the complaint is focused on these events, the latter portion of the

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complaint claims that defendants Chase, HSBC, Resmae, Cal-Western, “and others” conspired

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with defendant Jones and the DRE, using “their official position[s] in an unconstitutional

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manner” to retaliate against plaintiff in regard to his short sale purchase of a home on December

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15, 2008. Id. at 8. Although closing was to occur on January 15, 2009, plaintiff claims that

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Chase Home Finance initiated foreclosure proceedings on the property on January 5, 2009, in

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violation of the short sale agreement, in retaliation for plaintiff’s exposure of their predatory

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lending practices, and because he had acted as a broker in the sale of property that fell through,

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resulting in the lawsuit mentioned above regarding the disputed deposit payment.3 Id. at 9. The

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complaint additionally claims that plaintiff’s attorneys, defendants Wyatt and Hardy Erich,

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Brown & Wilson, were negligent and engaged in fraud “by allowing the civil rights violations to

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occur,” despite representing plaintiff’s interests. Id. at 10.

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Plaintiff’s claims complaining of the state court judgments may be jurisdictionally barred

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by the Rooker-Feldman doctrine. The Rooker–Feldman doctrine occupies “narrow ground.”

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Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289 (2011). “‘The Rooker–Feldman doctrine

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provides that federal district courts lack jurisdiction to exercise appellate review over final state

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court judgments.’” AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1153 (9th Cir.2007)

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(quoting Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir.2007)). “Essentially, the

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doctrine bars ‘state-court losers complaining of injuries caused by state-court judgments rendered

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before the district court proceedings commenced’ from asking district courts to review and reject

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those judgments.” Henrichs, 474 F.3d at 613 (quoting Exxon Mobile Corp. v. Saudi Basic Indus.

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Corp., 544 U.S. 280, 284, 125 S.Ct. 1517 (2005)); accord Reusser v. Wachovia Bank, N.A., 525

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F.3d 855, 859 (9th Cir.2008).

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The Rooker–Feldman doctrine may also apply, however, where the parties do not directly
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The address of the property at issue is the same address that is listed as plaintiff’s address of
record in this case.
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contest the merits of a state court decision, but file an action that constitutes a “de facto” appeal

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from a state court judgment. Reusser, 525 F.3d at 859. Such a de facto appeal exists where

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“claims raised in the federal court action are ‘inextricably intertwined’ with the state court's

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decision such that the adjudication of the federal claims would undercut the state ruling or require

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the district court to interpret the application of state laws or procedural rules.” Id. (citation and

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quotation marks omitted). “Once a federal plaintiff seeks to bring a forbidden defacto appeal ...,

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that federal plaintiff may not seek to litigate an issue that is ‘inextricably intertwined’ with the

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state court judicial decision from which the forbidden de facto appeal is brought.” Noel v. Hall,

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341 F.3d 1148, 1158 (9th Cir.2003); see also Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n. 4 (9th

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Cir.2003) (“The Rooker–Feldman doctrine prevents lower federal courts from exercising

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jurisdiction over any claim that is ‘inextricably intertwined’ with the decision of a state court,

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even where the party does not directly challenge the merits of the state court's decision but rather

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brings an indirect challenge based on constitutional principles.”). “Where the district court must

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hold that the state court was wrong in order to find in favor of the plaintiff, the issues presented to

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both courts are inextricably intertwined.” Doe & Associates Law Offices v. Napolitano, 252 F.3d

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1026, 1030 (9th Cir.2001).

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Here, with respect to the DRE, although plaintiff does not specifically seek to overturn the

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state court judgment affirming the disciplinary action against him, his claims are clearly

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“inextricably intertwined” with that judgment because a decision in this case favorable to plaintiff

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would necessarily require this court to make determinations inconsistent with the state court's

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judgment regarding the finding that plaintiff failed to challenge the default decision within the

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time period allowed, and his petition was untimely, as well as the finding by the DRE that

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plaintiff committed fraud and/or negligence in directing the seller’s attorney to make

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disbursements from the payment made by the buyer. The judicially noticed facts, as set forth

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above, show that plaintiff’s petition for writ of mandamus appealing an administrative decision

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revoking plaintiff’s real estate license based on his default was denied by the trial court, and that

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decision was affirmed by the California Court of Appeals. That decision has not been disturbed.

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Because the state administrative tribunal found plaintiff had defaulted in the administrative
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proceedings, and that the allegations of fraud and negligence in the accusation had been proved

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by clear and convincing documentary evidence, resulting in the revocation of his real estate

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license, it necessarily follows that defendants here who were involved in those proceedings did

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not engage in a conspiracy to cause this result but acted in a legal fashion. Plaintiff’s claims in

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this action would require this court to make findings contrary to these determinations made by the

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state administrative tribunal and state courts. For instance, plaintiff’s claims premised on

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violations of the Due Process and Equal Protection clauses of the Constitution, the Civil Rights

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Act, 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), and the Sherman Act, if

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meritorious, would all require this court to determine that defendants had no right to take

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disciplinary action against a licensee such as plaintiff who had previously been exonerated from

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wrongdoing related to licensing activities, and that defendants revoked his license without lawful

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cause. Accordingly, such causes of action are “inextricably intertwined” with the prior state court

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conviction and, therefore, are barred under the Rooker–Feldman doctrine. Doe & Associates Law

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Offices, 252 F.3d at 1030.

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Even if the claims barred under the Rooker-Feldman doctrine were permitted to go

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forward against the DRE and the other defendants, the complaint does not appear to have a proper

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jurisdictional basis.

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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
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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The claims pertaining to plaintiff’s previous state court lawsuits and the revocation of his

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realtor’s license mention the Equal Protection and Due Process clauses, the Civil Rights Act, the

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Sherman Act, the ADA, and the Rehabilitation Act in conclusory fashion only, and for the most

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part only in the caption and the jurisdictional paragraphs. See ECF No. 1 at 1, 2, 3. The

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complaint mentions federal allegations in the body of the complaint only twice, and only in

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passing. For example, plaintiff alleges “Defendant DEPARTMENT owes a mandatory duty of

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care not to act against or deprive Plaintiff from the use of his professional license without lawful

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cause or basis set forth within the provisions and authority of the Due Process and Equal

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Protection Clauses.” Id. at 6. The only other reference to federal law is the allegation that

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revocation of plaintiff’s license violates the Fourteenth Amendment. Id. at 8. The other

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references to federal law are in the jurisdictional paragraphs only. Id. at 2-3.

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Although plaintiff refers to state law violations such as fraud, malice, defamation, and the

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California Constitution in his description of the alleged violations, (ECF No. 1 at 4, 6, 7, 8), he

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has failed to allege any federal constitutional or statutory violations in the body of his complaint.

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The drafting of a false accusation and a false administrative record, as plaintiff alleges, id. at 6, 7,

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does not implicate the federal constitution.
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Nor has plaintiff set forth how each defendant violated at least one of the federal statutes
or the constitution, and how each defendant did so.

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The caption and jurisdictional clause reference the ADA; however, there is no claim set

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forth under this act. Title II provides that “no qualified individual with a disability shall, by

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reason of such disability, be excluded from participation in or be denied the benefits of the

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services, programs, or activities of a public entity, or be subject to discrimination by such entity.”

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42 U.S.C. § 12132.

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Title II of the ADA was modeled after the Rehabilitation Act itself. Duvall v. County of

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Kitsap, 260 F.3d 1124, 1135 (9th Cir.2001). Therefore, the elements of the ADA and RA claim

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are functionally the same. In order to state a claim that a public program or service violated Title

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II of the ADA, a plaintiff must show: he is a “qualified individual with a disability”; he was either

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excluded from participation in or denied the benefits of a public entity's services, programs, or

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activities, or was otherwise discriminated against by the public entity; and such exclusion, denial

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of benefits, or discrimination was by reason of his disability. Simmons v. Navajo County, Ariz.,

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609 F.3d 1011, 1021 (9th Cir.2010); McGary v. City of Portland, 386 F.3d 1259, 1265 (9th

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Cir.2004).

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“In suits under Title II of the ADA ... the proper defendant usually is an organization

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rather than a natural person.... Thus, as a rule, there is no personal liability under Title II.”

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Tenerelli v. Shasta County Jail, 2015 WL 2159551, *3 (E.D.Cal. May 7, 2015) (quotations and

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citations omitted). Individuals are not proper defendants under Title II at of the ADA. “[A]

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plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual

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capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation

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Act.” Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). The proper defendant for an

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ADA claim is the public entity responsible. Everson v. Leis, 556 F.3d 484, 501 & n. 7 (6th Cir.

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2009).

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It is debatable whether the DRE is a public entity which provided a program, service or

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activity. Assuming arguendo that it is, it would be the only defendant subject to such a claim. If

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plaintiff seeks to make an ADA claim on amendment, he must make a showing in accordance
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with the authority outlined above. Any future claim under the ADA against any other defendants

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will be dismissed.

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The complaint also references the Sherman Act only in passing, and makes no mention of

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which section of that Act plaintiff seeks to enforce. Section 1 of the Sherman Act outlaws

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agreements or conspiracies which unreasonably restrain trade. 15 U.S.C. § 1; NYNEX Corp. v.

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Discon, Inc., 525 U.S. 128, 133 (1998). To establish a claim for unreasonable restraint of trade,

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“a plaintiff must allege sufficient facts to demonstrate three elements: (1) the existence of a

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contract, combination, or conspiracy among two or more separate entities that (2) unreasonably

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restrains (3) interstate trade or commerce.” Columbia River People's Util. Dist. v. Portland Gen.

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Elec. Co., 217 F.3d 1187, 1189–90 (9th Cir.2000) (citation omitted).

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Section 2 of the Sherman Act prohibits actual or attempted monopolization of trade or

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commerce. 15 U.S.C. § 2. To establish a claim for actual or attempted monopolization, a

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plaintiff must establish four elements: “(1) specific intent to control prices or destroy competition;

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(2) predatory or anticompetitive conduct directed at accomplishing that purpose; (3) a dangerous

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probability of achieving ‘monopoly power’; and (4) causal antitrust injury.” Rebel Oil Co. v. Atl.

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Richfield Co., 51 F.3d 1421, 1432–33 (9th Cir.1995). Section 4 of the Clayton Act provides for a

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private right of action to enforce the Sherman Act. It states that “any person who shall be injured

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in his business or property by reason of anything forbidden in the antitrust laws may sue

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therefor.” 15 U.S. C. § 15(a). See also Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979,

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987 (9th Cir.2000).

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Plaintiff has failed to state any claim at all under the Sherman Act. If he intends to

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proceed with this claim, he must specify under which section of the Sherman Act he is

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proceeding, and must establish all elements of a claim as set forth above.
Plaintiff also merely references 42 USC §§ 1983 and 1985.4 The Civil Rights Act

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provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the

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Plaintiff has incorrectly referenced 11 U.S.C. §§ 1983 and 1985 in the caption of his complaint.
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deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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To state a claim under § 1983, there must be state action by defendant. Gritchen v.

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Collier, 254 F.3d 807, 812 (9th Cir. 2001). Although a private individual may be liable under §

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1983 if he conspires with state actors to violate plaintiff’s rights, Franklin v. Fox, 312 F.3d 423,

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441 (9th Cir. 2002), plaintiff has not made such an allegation against any of the defendants. A

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section 1983 claim can lie against a private party only when “he is a willful participant in joint

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action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183 (1980). In

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this case, there are no defendants who are state actors, and plaintiff has not alleged that any

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defendants acted in conjunction with the state or its agents. For example, privately employed

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attorneys do not act on behalf of the state, but rather on behalf of their clients. See Briley v. State

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of California, 564 F.2d 849, 855 (9th Cir.1977).

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Plaintiff will be provided leave to amend his complaint to allege state action by the DRE,

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and whether any private defendants conspired with or entered joint action with the DRE. If

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plaintiff does so amend his complaint, he must allege the specific facts of the conspiracy, as well

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as all of the facts surrounding any alleged violations of his constitutional rights. The complaint as

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written contains less than bald conclusions and fails to state a plausible claim for any of the

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grounds alleged. Plaintiff is reminded that his claim for relief must contain sufficient factual

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matter to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662,

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678, 129 S.Ct. 1973 (2009). While this does not require detailed factual allegations, the claim

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must contain more than labels and conclusions or a formulaic recitation of the elements of a cause
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of action. See Bell Atlantic, 550 U.S. at 555. In short, the allegations must be sufficient to put

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defendant fairly on notice of the claims against it. See Richmond v. Nationwide Cassel L.P., 52

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F.3d 640, 645 (7th Cir.1995) (amended complaint with vague and scanty allegations fails to

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satisfy the notice requirement of Rule 8); 5 C. Wright & A. Miller, Federal Practice and

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Procedure § 1202 (2d ed.1990). Here, this means that plaintiff must say more than that

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defendants conspired to make accusations against plaintiff which were “false, oppressive, and

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malicious.” See ECF No. 1 at 7. Rather, plaintiff must identify exactly what each defendant did

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to violate his rights, and why he thinks such action was unconstitutional.

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Section 1985 of 42 U.S.C. proscribes conspiracies to interfere with civil rights. Sanchez

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v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir.1990); Karim–Panahi v. Los Angeles Police

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Dept., 839 F.2d 621, 626 (9th Cir.1988). The statute protects only against discrimination founded

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upon invidious, class-based animus. United Brotherhood of Carpenters v. Scott, 463 U.S. 825,

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103 S.Ct. 3352 (1983); Ramirez v. City of Reno, 925 F.Supp. 681, 689 (D.Nev.1996).

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Conspiracy claims under § 1985(3) require an allegation of racial, or perhaps otherwise class-

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based invidiously discriminatory animus. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct.

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1790 (1971). Regarding § 1985(2), the first clause of the subsection concerns conspiracy to

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obstruct justice in federal courts, or to intimidate a party witness or juror in connection therewith,

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and the second clause concerns conspiracies to affect the due course of justice in a state. See

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Bretz v. Kelman, 773 F.2d 1026, 1028 n. 4 (9th Cir.1985); see also Usher v. City of Los Angeles,

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828 F.2d 556, 561 n. 4 (9th Cir.1987). The requirement of racial or class-based animus has been

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extended to the second clause of subsection 1985(2). See Bretz, 773 F.2d at 1030; Usher, 828

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F.2d at 561.

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Here, plaintiff cannot allege any federal interest or involvement with the alleged

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conspiracy, and therefore he would fail to state a claim under the first clause of § 1985(2). In

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addition, plaintiff fails to allege that any of the defendants entered an agreement to deprive

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plaintiff of his constitutional rights due to his membership in a protected class. See Usher, 828

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F.2d at 560 (holding that, by alleging that racial slurs were directed against him, plaintiff alleged

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racial animus sufficiently to survive a motion to dismiss causes of action under 42 U.S.C. §
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1985(2) and (3)). Nothing in the factual allegations of the complaint supports the conclusion that

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any defendants were motivated by invidious class-based animus to conspire to violate plaintiff’s

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civil rights pursuant to 42 U.S.C. § 1985(3). These aforementioned attempts to create federal

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subject matter jurisdiction by inserting claims related to civil rights violations and discrimination

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must fail.

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A less stringent examination is afforded pro se pleadings, see Haines v. Kerner, 404 U.S.

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519, 520, 92 S.Ct. 594 (1972), but simple reference to federal law does not create subject matter

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jurisdiction. Avitts v. Amoco Prod. Co., 53 F.3d 690, 694 (5th Cir.1995). Subject matter

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jurisdiction is created only by pleading a cause of action that is within the court's original

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jurisdiction. Id. See also Kennedy v. H & M Landing, Inc., 529 F.2d 987, 989 (9th Cir.1976) (a

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pleading will not be sufficient to state a claim under § 1983 if the allegations are mere

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conclusions). Plaintiff's mere reference to these federal statutes is insufficient to state a claim

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upon which relief can be granted—for each federal statute, Plaintiff must actually explain what

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allegations support a violation. As plaintiff makes no claims under any of these federal statutes,

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these claims will be dismissed with leave to amend.

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The allegations in the second part of the complaint which pertain to plaintiff’s purchase of

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a house and alleged retaliation on the part of some defendants is problematic because it is based

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on state law only. Should the other claims be dismissed based on the Rooker-Feldman doctrine,

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and these claims be the only ones that survive, there would be no federal question jurisdiction.

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Nor is there diversity jurisdiction because plaintiff is a citizen of California, as are

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defendants Jones, DRE, and possibly other defendants. The fact that plaintiff is diverse from

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some of the defendants does not help his case, (ECF No. 1 at 3), because he must be diverse from

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each defendant.

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While plaintiff's claims against some of the defendants, as alleged, are most likely barred

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under the Rooker–Feldman doctrine, the court will grant plaintiff the opportunity to amend his

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complaint in light of his pro se status and because it appears from the allegations of the complaint

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at least possible that plaintiff might be able to allege facts demonstrating that at least some of his

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claims against other named defendants are not jurisdictionally barred by this doctrine. However,
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plaintiff is cautioned that if he elects to file an amended complaint, he must articulate his claims

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through factual allegations that address the deficiencies outlined above.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the events

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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. In regard to section 1983 claims in particular, there can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598

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(1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.

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1982).]

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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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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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////
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this case and must be labeled “Amended Complaint;” failure to file an amended complaint will

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result in a recommendation that this action be dismissed.

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Dated: February 1, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Gonzalez2448.amd

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