Besoyan v. Yee et al

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/26/2017 GRANTING plaintiff's 2 request to Proceed IFP. Plaintiff's complaint is DISMISSED with leave to amend, as provided herein. Plaintiff has 30 days to file an amended complaint. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHEAL J. BESOYAN,

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Plaintiff,

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No. 2:16-cv-46-KJM-EFB PS

v.

ORDER

SACRAMENTO COUNTY, et al.,

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Defendants.

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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His

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declaration makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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Determining that plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed

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below, plaintiff’s complaint fails to state a claim and must be dismissed.

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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the

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plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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requires a complaint to include “a short and plain statement of the claim showing that the pleader

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is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds

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upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the
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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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The complaint alleges that plaintiff was the previous owner of real property located at

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7744 Nelson Ln., Citrus Heights, California (the “property”). Id. In 2008, the home on the

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subject property was destroyed by arson. Id. at 2. Plaintiff, however, continued to live on the

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property despite the absence of a home. Id. Plaintiff alleges that in 2015, the Citrus Heights

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Police Department seized the property and excluded him from entering the premises. Id. He

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further claims that the “property was stolen and sold to other private citizens based on fraudulent

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tax claims, biased opinions and property values criminally jacked up 25 [times] acceptable

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assessment standards.” Id. As far as the court can discern, plaintiff appears to contend that the

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County of Sacramento wrongfully foreclosed on his property based on disputed tax liens.

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The complaint purports to assert claims pursuant to 42 U.S.C. § 1983 against sixty

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defendants, including the County of Sacramento; the Sacramento County Board of Supervisors;

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the Sacramento County Assessor’s Office and several of its employees; the Sacramento County

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Sherriff’s Department and several of its deputies; the Sacramento County Superior Court and

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several individuals that work for that court; as well as several individuals whose relation to the

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alleged facts is unclear. ECF No. 1-2. Plaintiff claims that the defendants violated his

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constitutional rights protected by the First, Fourth, Fifth, Sixth, Seventh, Ninth, and Fourteenth

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Amendments to the United States Constitution. The complaint also makes reference to 42 U.S.C

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§§ 1981, 1982, 1985(3) and 18 U.S.C. §§ 1341, 1343, 1621, 3612. ECF No. 1 at 1.

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The allegations in plaintiff’s complaint are too vague and conclusory to state a section

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1983 claims against any of the numerous defendants. To state a claim under 42 U.S.C. § 1983, a

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plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of

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the United States was violated, and (2) that the alleged violation was committed by a person

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acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual
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defendant is not liable on a civil rights claim unless the facts establish the defendant’s personal

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involvement in the constitutional deprivation or a causal connection between the defendant’s

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wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642,

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646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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Plaintiff fails to allege the specific facts that support a violation of each particular

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violation of his constitutional rights. He also fails to identify which defendant he believes are

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responsible for each specific violation. Indeed, many of the defendants are only identified in the

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complaint’s caption and are never referenced in the body of the complaint. Moreover, it is not

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entirely clear whether all of the named defendants are state actors. For instance, Gloria P.

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Martinez-Senftner—one of the few defendants referenced in the body of the complaint—is

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alleged to be a “court officer” employed by the Martinez Business & Immigration Law Group.

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ECF No. 2. To the extent plaintiff believes Ms. Martinez-Senftner’s admission to the California

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State Bar renders her a state actor, he is mistaken. See Polk v. County of Dodson, 454 U.S. 312,

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325 (1981) (a private attorney, even if appointed and paid for by the state, is not acting under

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color of state law when performing his or her function as counsel).

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The complaint also purports to allege claims under section 1983 against municipal entities

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and county defendants acting in their official capacity. A municipal entity or its departments

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(such as a county, a county jail, or a county employee acting in an official capacity) is liable

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under section 1983 only if a plaintiff shows that his constitutional injury was caused by

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employees acting pursuant to the municipality’s policy or custom. Mt. Healthy City Sch. Dist.

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Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436

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U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008).

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In addition, such local government entities may not be held vicariously liable under section 1983

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for the unconstitutional acts of its employees under a theory of respondeat superior. See Board of

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Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997). That is, a plaintiff may not sue any defendant

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on the theory that the defendant is automatically liable for the alleged misconduct of subordinate

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officers. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). The complaint is devoid of any

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allegations establishing that plaintiff suffered a constitutional injury on account of a municipal

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custom or policy.

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Plaintiff also cites to 42 U.S.C. §§ 1981, 1982, and 1983(3). Section 1981 “protects the

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equal right of all persons within the jurisdiction of the United States to make and enforce

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contracts without respect tor ace.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474-75

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(2006) (internal quotations omitted). Section 1981 “creates a cause of action only for those

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discriminated against on account of their race or ethnicity.” Johnson v. Riverside Healthcare

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System, LP, 534 F.3d 1116, 1123 (9th Cir. 2008); see White v. Wash. Pub. Power Supply Sys.,

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692 F.2d 1286, 1290 (9th Cir. 1982) (holding that it is “well settled that section 1981 only

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redresses discrimination based on plaintiff's race”); Longariello v. Phoenix Union High School

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Dist., 2009 WL 4827014, at *5 (D. Ariz. Dec.15, 2009) (granting motion to dismiss Section 1981

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claim because complaint did not allege that the plaintiff was a member of a racial minority).

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To state a claim under section 1982, a plaintiff must allege that (1) [he] is a member of a

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racial minority; (2) [he] applied for and was qualified to rent or purchase certain property or

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housing; (3) [he] was rejected; and (4) the housing or rental opportunity remained available

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thereafter. Phifer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 551 (9th Cir. 1980).

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Section 1985(3) creates a civil action for damages caused by two or more persons who

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“conspire . . . for the purpose of depriving” the injured person of “the equal protection of the

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laws, or of equal privileges and immunities under the laws” and take or cause to be taken “any act

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in furtherance of the object of such conspiracy.” 42 U.S.C. § 1985(3). The elements of a §

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1985(3) claim are: (1) the existence of a conspiracy to deprive the plaintiff of the equal protection

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of the laws; (2) an act in furtherance of the conspiracy; and (3) a resulting injury. Addisu v. Fred

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Meyer, Inc., 198 F.3d 1130, 1141 (9th Cir. 2000) (citing Scott v. Ross, 140 F.3d 1275, 1284 (9th

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Cir. 1998)). The first element requires that there be some racial or otherwise class-based

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“invidious discriminatory animus” for the conspiracy. Bray v. Alexandria Women's Health

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Clinic, 506 U.S. 263, 268-69 (1993); Trerice v. Pedersen, 769 F.2d 1398, 1402 (9th Cir. 1985).

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Moreover, a plaintiff cannot state a conspiracy claim under § 1985 in the absence of a claim for

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deprivation of rights under 42 U.S.C. § 1983. See Caldeira v. Cnty. of Kauai, 866 F.2d 1175,
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1182 (9th Cir. 1989) (holding that “the absence of a section 1983 deprivation of rights precludes a

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section 1985 conspiracy claim predicated on the same allegations”), cert. denied, 493 U.S. 817,

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(1989).

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Plaintiff does not allege that he is a member of a racial minority, nor any facts suggesting

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racial discrimination by any defendants. Accordingly, plaintiff fails to allege a violation of

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sections 1981, 1982, and 1983(3).

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Plaintiff also purports to allege claims for violations of 18 U.S.C. §§ 1341, 1343, and

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1621. Those criminal statutes do not create a civil right of action. Wisdom v. First Midwest

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Bank, of Poplar Bluff, 167 F.3d 402, 408 (8th Cir. 1999) (finding no private right of action under

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18 U.S.C. § 1341); Napper v. Anderson, 500 F.2d 634, 636 (5th Cir. 1974) (finding no private

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right of action under § 1343); Roemer v. Crow, 993 F. Supp. 834, 837 (D. Kan. 1998) (Section

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1621 does not provide a civil right of action for damages), aff’d by 162 F.3d 1174 (10th Cir.

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1998).

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Lastly, the complaint also makes reference to a state court judgment related to foreclosure

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of the property, which plaintiff describes as a “void judgment.” ECF No. 1 at 2. Plaintiff appears

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to contend that the judgment is void because it was based on fraudulent testimony and insufficient

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evidence. Id. To the extent plaintiff seeks to assert claims challenging that judgment in this

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court, he is barred from doing so under the Rooker-Feldman doctrine.

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Under the Rooker-Feldman doctrine, a federal district court does not have subject-matter

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jurisdiction to hear an appeal from the judgment of a state court. Exxon Mobil Corp. v. Saudi

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Basic Indus. Corp., 544 U.S. 280, 283-84 (2005); see also Dist. of Columbia Court of Appeals v.

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Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923). The

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Rooker-Feldman doctrine bars jurisdiction in federal district court if the exact claims raised in a

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state court case are raised in the subsequent federal case, or if the constitutional claims presented

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to the district court are “inextricably intertwined” with the state court's denial of relief. Bianchi v.

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Rylaarsdam, 334 F.3d 895, 898-99 (9th Cir. 2003) (quoting Feldman, 460 U.S. at 483 n. 16).

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Rooker-Feldman thus bars federal adjudication of any suit whether a plaintiff alleges an injury

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based on a state court judgment or directly appeals a state court's decision. Id. at 900 n. 4. The
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district court lacks subject matter jurisdiction either to conduct a direct review of a state court

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judgment or to scrutinize the state court's application of various rules and procedures pertaining to

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the state case. Samuel v. Michaud, 980 F. Supp. 1381, 1411-12 (D. Idaho 1996), aff’d, 129 F.3d

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127 (9th Cir. 1997); see also Branson v. Nott, 62 F.3d 287, 291–92 (9th Cir.1995) (finding no

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subject matter jurisdiction over section 1983 claim seeking, inter alia, implicit reversal of state

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trial court action). “That the federal district court action alleges the state court's action was

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unconstitutional does not change the rule.” Feldman, 460 U.S. at 486. In sum, “a state court’s

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application of its rules and procedures is unreviewable by a federal district court. The federal

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district court only has jurisdiction to hear general challenges to state rules or claims that are based

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on the investigation of a new case arising upon new facts.” Samuel, 980 F. Supp. at 1412-13.

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Accordingly, the complaint must be dismissed for failure to state a claim. Plaintiff,

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however, is granted leave to file an amended complaint, if he can allege a cognizable legal theory

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and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to

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amend to correct any deficiency in their complaints). Should plaintiff choose to file an amended

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complaint, the amended complaint shall clearly set forth the allegations against each defendant

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and shall specify a basis for this court’s subject matter jurisdiction. Any amended complaint shall

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plead plaintiff’s claims in “numbered paragraphs, each limited as far as practicable to a single set

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of circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in double-

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spaced text on paper that bears line numbers in the left margin, as required by Eastern District of

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California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings

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to delineate each claim alleged and against which defendant or defendants the claim is alleged, as

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required by Rule 10(b), and must plead clear facts that support each claim under each header.

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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

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make an amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files an amended complaint, the original no longer serves any function in the case.
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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

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may result in a recommendation that this action be dismissed. See Local Rule 110.

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint. The amended complaint must bear the docket number assigned to this case and must

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be labeled “First Amended Complaint.” Failure to timely file an amended complaint in

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accordance with this order will result in a recommendation this action be dismissed.

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DATED: January 26, 2017.

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