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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENT A. FRIEDE, 12 Plaintiff, 13 v. No. 2:17-cv-00499 KJM GGH PS 14 15 ORDER DEEPAR PRASAK, et al., Defendants. 16 17 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority under 28 18 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to the undersigned 19 under Local Rule 302(c)(21). 20 Plaintiff has submitted the affidavit required by section 1915(a) showing that he is unable 21 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 22 pauperis will be granted. 28 U.S.C. § 1915(a). 23 Determining plaintiff may proceed in forma pauperis does not complete the required 24 inquiry, however. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at 25 any time if it determines the allegation of poverty is untrue, if the action is frivolous or 26 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 27 an immune defendant. A claim is legally frivolous when it lacks an arguable basis either in law 28 1 1 or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 2 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based 3 on an indisputably meritless legal theory or where the factual contentions are clearly baseless. 4 Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however 5 inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 6 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 7 This is one of those cases where a plaintiff, struggling with persons or events which 8 adversely affect his life, files a grievance list with the hope that a federal court can make his life 9 better. But there is no authority given to the federal courts to act as an ombundsmen or advocate 10 for plaintiff. Plaintiff must allege a violation of law which this court is authorized to adjudicate. 11 In both his Complaint and his in forma pauperis application petitioner adverts to the fact 12 that he is disabled, but makes no specific claim under the Americans with Disability Act only 13 noting that it forms the basis for his federal jurisdiction claim. ECF No. 1 at 4. Further, he 14 attaches a Stipulation and Order, approved by a Sacramento Superior Court Commissioner, acting 15 as a Temporary Judge, on February 28, 2017, apparently entered in connection with an unlawful 16 detainer action filed by his landlord. ECF No. 1 at 11. In that Stipulation and Order plaintiff 17 agrees to pay certain fees and costs and to vacate the property in which he resides by March 31, 18 2017, in exchange for which the landlord will stay proceedings to evict him immediately. Id. 19 Plaintiff is apparently claiming in his action in this court that the landlord, his attorney, and the 20 property manager violated two state statutes – California Civil Code § 1942.4 and California 21 Code of Civil Procedure § 1174.21, and then tricked or coerced him into entering the Stipulation 22 that overrode those statutory protections. 23 Federal jurisdiction, which is what plaintiff pleads here, arises under 28 U.S.C. § 1331 24 when the plaintiff alleges a claim arising under the United States Constitution or federal laws or 25 treaties. General grievance allegations, or mere references to federal law, are insufficient to meet 26 this standard. 27 28 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 2 1 court cannot, however, interfere with, or overturn the results of, state court proceedings. Rather, 2 the court must abstain from interference with pending state proceedings that are judicial in nature 3 or state proceedings that involved important state interests so long as the statue proceedings can 4 afford an opportunity to raise any constitutional issue the plaintiff may claim. Plaintiff cannot ask 5 this court to simply overturn state court proceedings. Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003) 6 (discussing the Rooker-Feldman doctrine generally precluding federal court review of state court 7 decisions); Younger v. Harris, 401 U.S. 37, 43-54 (1971); Middlesex County Ethics Comm. v. 8 Garden State Bar Ass’n, 457 U.S. 423, 432 (1982) (generally precluding interference with 9 ongoing state court proceedings). 10 Here it would appear that plaintiff can return to the Sacramento Superior Court and seek 11 to set aside the Stipulation and Order on the ground laid out in his federal complaint and, if he is 12 unsuccessful, he may appeal his claim. 13 For the foregoing reasons it is ordered that plaintiff’s complaint shall be dismissed with 14 leave to amend. Plaintiff must focus his complaint on those federal laws which he thinks have 15 been violated, and must allege facts which show such a violation. Plaintiff must name a 16 defendant(s) who would be liable pursuant to the federal laws if the facts alleged were to be 17 proven in court. 18 Any amended complaint must be filed within thirty days of the date this order is filed. 19 IT IS SO ORDERED. 20 21 Dated: March 10, 2017 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

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