Hernandez v. McCauley

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/24/17 ORDERING that Plaintiff's Request to proceed with his action informa pauperis 2 is GRANTED; Plaintiff's complaint is DISMISSED with leave to amend to conform to the standards set out in this Order within 30 days of the filing of the Order. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREG HERNANDEZ,

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No. 2:17-cv-01682 GEB GGH

Plaintiff,
v.

ORDER

LISA McCAULEY,
Defendant.

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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. ECF No. 2 The court has examined the informa pauperis

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application and has determined that plaintiff lacks the resources to pay the fees and costs

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associated with this action and will therefore grant the Motion.

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SCREENING
Addressing IFP status does not end the court’s inquiry, however. The federal IFP statute

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requires federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to

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state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915(e)(2).

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Plaintiff must assist the court in making this determination by drafting his complaint so

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that it contains a “short and plain statement” of the basis for federal jurisdiction (that is, the

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reason the case is filed in this court, rather than in a state court), as well as a short and plain
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statement showing that plaintiffs are entitled to relief (that is, who harmed the plaintiffs, and in

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what way). Plaintiffs’ claims must be set forth simply, concisely and directly. See “Rule 8” of

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the Federal Rules of Civil Procedure (Fed. R. Civ. P. 8). The Federal Rules of Civil Procedure

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are available online at www.uscourts.gov/rules-policies/current-rules-practice-

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procedure/federalrules-civil-procedure.

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Forms are also available to help pro se plaintiffs organize their complaint in the proper

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way. They are available at the Clerk’s Office, 501 I Street, 4th Floor, Sacramento, CA 95814, or

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online at www.uscourts.gov/forms/pro-se-forms.

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327;

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Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at

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Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler,

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627 F.3d 338, 340 (9th Cir. 2010).

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However, the court need not accept as true, legal conclusions cast in the form of factual

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allegations, or allegations that contradict matters properly subject to judicial notice. See Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State Warriors,

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266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001). Pro se pleadings are held to a

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less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520

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(1972). Pro se complaints are construed liberally and may only be dismissed if it appears beyond

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doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to

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relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). A pro se litigant is entitled to

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notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint’s

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deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th

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Cir. 1987).

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THE COMPLAINT
In order to maintain a suit in federal court, the plaintiff must allege a basis for federal

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jurisdiction insofar as a federal court may adjudicate only those cases authorized by the

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Constitution and by Congress See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 377 (1994).

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The basic federal jurisdiction states, 28 U.S.C. sections 1331 and 1332, confer “federal question”

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and “diversity” jurisdiction, respectively. Unless a complaint presents a plausible assertion of a

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substantial federal right a federal court does not have jurisdiction. See Bell v. Hood, 327 U.S.

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678, 682 (1945). A simple reference to a federal law, as here, does not create subject matter

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

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jurisdiction is created only by pleading a claim within the court’s original jurisdiction. Id.

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Here plaintiff has asserted jurisdiction lies pursuant to 28 U.S.C. section 1331, which

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confers jurisdiction on the court over any “action arising under the Constitution, laws, or treaties

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of the United States,” and 1446, which provides jurisdiction over cases removed from a State

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Court to the federal court. This case, of course was not removed from state court, so the analysis

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of jurisdiction must rest on section 1331 and the civil rights laws to which it adverts.

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Plaintiff purports to be suing for a violation of his federal right to due process of law.

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However, in order to state a cognizable claim and establish jurisdiction he must do so pursuant to

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28 U.S.C. section 1983, or some other federal statute, which establishes the basis for such a

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claim. The statute states:

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

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citizen of the United States to the deprivation of any rights, privileges or immunities

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secured by the Constitution . . . shall be liable to the party injury in an action of law suit in

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equity, or other proper proceeding for redress.

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This statute does not, however, create any substantive rights. Rather, to rely on section 1983 a

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plaintiff must demonstrate not only the deprivation of a right secured by the Constitution or laws

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of the United States, but that defendant acted under color of state law. West v. Atkins, 487 U.S.

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42, 46 (1988). Here, plaintiff is suing a private party. A section 1983 claim can lie against a

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private party, but only when she “is a willful participant in joint action with the State or its
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agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980).
Plaintiff is suing a defendant he alleges injured him due to “improper landlord/tenant

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procedures,” which procedures he asserts resulted in the commission of fraud, negligence, and

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misrepresentation by which he has been damaged. There are no facts stated that would lead the

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court to believe that defendant’s failure to follow these procedures was taken in any kind of joint

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action with the State or a state agent. Rather, plaintiff is asserting the kinds of offenses that are

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subject to state law and can be litigated in the state courts, not in this federal court.

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CONCLUSION

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The plaintiff has failed to state a basis for federal jurisdiction in his pending complaint.

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Although this court cannot divine any basis upon which he could do so state, given the facts he

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has so far provided, it will permit him to file an amended complaint if, by doing so, he can meet

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the requirements for jurisdiction laid out above and shall allow him 30 days from the date of this

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Order to do so.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s request to proceed with his action informa pauperis is GRANTED;

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2.

Plaintiff’s complaint is dismissed with leave to amend to conform to the standards

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set out in this Order within 30 days of the filing of the Order.
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Plaintiff is warned that the failure timely to file an amended complaint, or the

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filing of such an amended complaint that does not meet the requirements laid out in this Order,

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may result in a recommendation that his complaint be dismissed with prejudice.

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IT IS SO ORDERED.
Dated: August 24, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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