Friede v. Prasak et al

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 3/10/2017 ORDERING that plaintiff's 2 Motion to Proceed IFP is GRANTED. Plaintiff's complaint is DISMISSED with leave to amend within 30 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENT A. FRIEDE,

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Plaintiff,

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v.

No. 2:17-cv-00499 KJM GGH PS

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ORDER

DEEPAR PRASAK, et al.,
Defendants.

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Plaintiff is proceeding in this action pro se. Plaintiff has requested authority under 28

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U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to the undersigned

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under Local Rule 302(c)(21).

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Plaintiff has submitted the affidavit required by section 1915(a) showing that he is unable

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to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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

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inquiry, however. 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, 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. A claim is legally frivolous when it lacks an arguable basis either in law

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or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

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1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based

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on an indisputably meritless legal theory or where the factual contentions are clearly baseless.

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Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639,

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640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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This is one of those cases where a plaintiff, struggling with persons or events which

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adversely affect his life, files a grievance list with the hope that a federal court can make his life

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better. But there is no authority given to the federal courts to act as an ombundsmen or advocate

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for plaintiff. Plaintiff must allege a violation of law which this court is authorized to adjudicate.

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In both his Complaint and his in forma pauperis application petitioner adverts to the fact

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that he is disabled, but makes no specific claim under the Americans with Disability Act only

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noting that it forms the basis for his federal jurisdiction claim. ECF No. 1 at 4. Further, he

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attaches a Stipulation and Order, approved by a Sacramento Superior Court Commissioner, acting

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as a Temporary Judge, on February 28, 2017, apparently entered in connection with an unlawful

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detainer action filed by his landlord. ECF No. 1 at 11. In that Stipulation and Order plaintiff

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agrees to pay certain fees and costs and to vacate the property in which he resides by March 31,

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2017, in exchange for which the landlord will stay proceedings to evict him immediately. Id.

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Plaintiff is apparently claiming in his action in this court that the landlord, his attorney, and the

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property manager violated two state statutes – California Civil Code § 1942.4 and California

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Code of Civil Procedure § 1174.21, and then tricked or coerced him into entering the Stipulation

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that overrode those statutory protections.

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Federal jurisdiction, which is what plaintiff pleads here, arises under 28 U.S.C. § 1331

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when the plaintiff alleges a claim arising under the United States Constitution or federal laws or

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treaties. General grievance allegations, or mere references to federal law, are insufficient to meet

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this standard.

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Further, plaintiff would have this federal court take action to compensate him for the
injury suffered by the ultimate enforcement of the Stipulation and Order. ECF No. 1 at 6. This
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court cannot, however, interfere with, or overturn the results of, state court proceedings. Rather,

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the court must abstain from interference with pending state proceedings that are judicial in nature

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or state proceedings that involved important state interests so long as the statue proceedings can

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afford an opportunity to raise any constitutional issue the plaintiff may claim. Plaintiff cannot ask

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this court to simply overturn state court proceedings. Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003)

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(discussing the Rooker-Feldman doctrine generally precluding federal court review of state court

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decisions); Younger v. Harris, 401 U.S. 37, 43-54 (1971); Middlesex County Ethics Comm. v.

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Garden State Bar Ass’n, 457 U.S. 423, 432 (1982) (generally precluding interference with

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ongoing state court proceedings).

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Here it would appear that plaintiff can return to the Sacramento Superior Court and seek

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to set aside the Stipulation and Order on the ground laid out in his federal complaint and, if he is

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unsuccessful, he may appeal his claim.

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For the foregoing reasons it is ordered that plaintiff’s complaint shall be dismissed with

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leave to amend. Plaintiff must focus his complaint on those federal laws which he thinks have

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been violated, and must allege facts which show such a violation. Plaintiff must name a

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defendant(s) who would be liable pursuant to the federal laws if the facts alleged were to be

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proven in court.

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Any amended complaint must be filed within thirty days of the date this order is filed.

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IT IS SO ORDERED.

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Dated: March 10, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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