Hysell v. Walsh et al

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 6/18/2018 RECOMMENDING that the 2 Motion to Proceed IFP be denied; Plaintiff's 1 Complaint be dismissed without leave to amend and this action be dismissed. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Fabillaran, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DOUGLAS WILLIAM HYSELL,

12

Plaintiff,

13
14

No. 2:17-cv-1887 KJM DB PS

v.

FINDINGS AND RECOMMENDATIONS

JAMES WALSH., et al.

15

Defendants.

16
Plaintiff, Douglas William Hysell, is proceeding in this action pro se. This matter was

17
18

referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

19

Pending before the court are plaintiff’s complaint and motion to proceed in forma pauperis

20

pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains of false arrest,

21

assault, and unlawful prosecution.
The court is required to screen complaints brought by parties proceeding in forma

22
23

pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

24

2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated

25

below, the undersigned will recommend that plaintiff’s complaint be dismissed without leave to

26

amend.

27

////

28

////
1

1
2

I.

Plaintiff’s Application to Proceed In Forma Pauperis
Plaintiff’s in forma pauperis application makes the financial showing required by 28

3

U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma

4

pauperis status does not complete the inquiry required by the statute. “‘A district court may deny

5

leave to proceed in forma pauperis at the outset if it appears from the face of the proposed

6

complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d

7

1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th

8

Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th

9

Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed

10

IFP because it appears from the face of the amended complaint that McGee’s action is frivolous

11

or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the

12

District Court to examine any application for leave to proceed in forma pauperis to determine

13

whether the proposed proceeding has merit and if it appears that the proceeding is without merit,

14

the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).

15

Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

16

poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

17

state a claim on which relief may be granted, or seeks monetary relief against an immune

18

defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

19

arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

20

Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

21

complaint as frivolous where it is based on an indisputably meritless legal theory or where the

22

factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

23

To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

24

state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

25

570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

26

true the material allegations in the complaint and construes the allegations in the light most

27

favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

28

Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
2

1

(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

2

lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

3

conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

4

Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

5

The minimum requirements for a civil complaint in federal court are as follows:

6

A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
judgment for the relief the pleader seeks.

7
8
9
10

Fed. R. Civ. P. 8(a).
II.

Plaintiff’s Complaint

11

On November 20, 2017, the undersigned issued an order dismissing plaintiff’s complaint

12

and granting plaintiff leave to file an amended complaint. (ECF No. 4.) Plaintiff has refused to

13

file an amended complaint. This action could be dismissed for this reason alone. See Local Rule

14

110; Fed. R. Civ. P. 41(b).

15

Instead, on December 26, 2017, plaintiff filed a “NOTICE,” stating, in part:

16

Please take notice that I, filed a claim in Federal District Court as
man, a personal injury claim. It was mistakenly filed as a complaint
in the U.S. DISTRICT COURT not the Federal District Court. It was
turned into a complaint filed by a corporate/fictional entity called a
U.S. citizen or citizen of the U.S. which I am not a citizen or subject
violating my right to access to the court of record under the 7th
Amendment.

17
18
19
20

(ECF No. 5 at 1.)
On March 22, 2018, plaintiff filed an “Opposition to Order Dismissing Complaint.” (ECF

21
22

No. 7.) Therein, plaintiff asserts, in part, that:

23

Now this Court has dismissed my claim, since this is a court of
record, and the court consists of the sovereign and his suit, i, am the
only sovereign in this, and since man is the only one who can file a
claim, as all corporate fictions must file complaints, man has full
unalienable rights and full lawful capacity, and public servants have
no rights, they have duties and obligations, for which they get the
privilege of getting a check from the people they serve.

24
25
26
27

(Id. at 4.)

28

////
3

Moreover, as explained in the November 20, 2017 order, plaintiff’s complaint is deficient

1
2

in several respects.

3

A.

4

Although the complaint is difficult to decipher, it appears that this action is brought

Statute of Limitations

5

pursuant to 42 U.S.C. § 1983. The complaint, however, alleges that the events at issue

6

commenced on March 16, 2015. (Compl. (ECF No. 1) at 2, 6.) Title 42 U.S.C. § 1983 provides

7

that,

8

[e]very person who, under color of [state law] ... subjects, or causes
to be subjected, any citizen of the United States ... to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.

9
10

42 U.S.C. § 1983 does not contain a specific statute of limitations. “Without a federal

11
12

limitations period, the federal courts ‘apply the forum state’s statute of limitations for personal

13

injury actions, along with the forum state’s law regarding tolling, including equitable tolling,

14

except to the extent any of these laws is inconsistent with federal law.’” Butler v. National

15

Community Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v.

16

Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007)); see also Jones v. Blanas, 393 F.3d 918, 927

17

(9th Cir. 2004). Before 2003, California’s statute of limitations for personal injury actions was

18

one year. See Jones, 393 F.3d at 927. Effective January 1, 2003, however, in California that

19

limitations period became two years. See id.; Cal. Code Civ. P. § 335.1.

20

Here, this action was filed on September 11, 2017. (ECF No. 1.) Accordingly, in the

21

absence of tolling, events prior to September 11, 2015, would not give rise to a § 1983 cause of

22

action.

23

B.

Rule 8

24

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a

25

complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that

26

state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.

27

Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels

28

and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
4

1

does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

2

enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Bell Atlantic Corp. v.

3

Twombly, 550 U.S. 544, 557 (2007)). A plaintiff must allege with at least some degree of

4

particularity overt acts which the defendants engaged in that support the plaintiff’s claims. Jones,

5

733 F.2d at 649.
Plaintiff’s complaint fails to contain a short and plain statement of a claim showing that

6
7

plaintiff is entitled to relief. In this regard, the allegations found in the complaint are difficult to

8

read and often inaccurate. For example, the complaint alleges that “the Stanislaus County

9

Sheriff’s Department [is] a private corporation foreign to the United States Republic and foreign

10

to the organic California Republic.” (Compl. (ECF No. 1) at 1.) That a defendant put plaintiff

11

“under his assumed authority as if [plaintiff] were a U.S. citizen of the United States and subject

12

to private corporate policy being falsely classed as law.” (Id. at 3.) That the “SUPERIOR

13

COURT STATE OF CALIFORNIA is an unconstitutional, private corporation, not delegated by

14

Congress, under Article 2 of the Constitution.” (Id. at 5.) That on March 16, 2015, officers of the

15

Stanislaus County Sheriff’s Department “along with other[] private corporate security guards

16

made a contrary conclusion of law based upon an erroneous presumption, that the Claimant was

17

enjoying a corporate franchise subject to the jurisdiction of the franchise, STATE OF

18

CALIFORNIA . . . .” (Id. at 6.) The complaint does not address in any detail a specific cause of

19

action.

20

The complaint also fails to contain a demand for judgment for the relief plaintiff seeks.

21

Instead, the complaint simply ends by stating that plaintiff asks “that this case be removed from

22

State Court to Federal Court and that [plaintiff] be allowed to file his claim into this Court to

23

address the criminal acts that have/are taking place against [plaintiff] and [his] private property.”

24

(Compl. (ECF No. 1) at 10.)

25

However, it is entirely unclear as to what case the complaint is referring. Moreover, under

26

the Rooker-Feldman doctrine a federal district court is precluded from hearing “cases brought by

27

state-court losers complaining of injuries caused by state-court judgments rendered before the

28

district court proceedings commenced and inviting district court review and rejection of those
5

1

judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The

2

Rooker-Feldman doctrine applies not only to final state court orders and judgments, but to

3

interlocutory orders and non-final judgments issued by a state court as well. Doe & Assoc. Law

4

Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Worldwide Church of God v.

5

McNair, 805 F.2d 888, 893 n. 3 (9th Cir. 1986).

6

The Rooker-Feldman doctrine prohibits “a direct appeal from the final judgment of a state

7

court,” Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003), and “may also apply where the parties

8

do not directly contest the merits of a state court decision, as the doctrine prohibits a federal

9

district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a

10

state court judgment.” Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008)

11

(internal quotation marks omitted). “A suit brought in federal district court is a ‘de facto appeal’

12

forbidden by Rooker-Feldman when ‘a federal plaintiff asserts as a legal wrong an allegedly

13

erroneous decision by a state court, and seeks relief from a state court judgment based on that

14

decision.’” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010) (quoting Noel, 341 F.3d

15

at 1164); see also Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (“[T]he Rooker-Feldman

16

doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in

17

‘which a party losing in state court’ seeks ‘what in substance would be appellate review of the

18

state judgment in a United States district court, based on the losing party’s claim that the state

19

judgment itself violates the loser’s federal rights.’”) (quoting Johnson v. De Grandy, 512 U.S.

20

997, 1005-06 (1994), cert. denied 547 U .S. 1111 (2006)). “Thus, even if a plaintiff seeks relief

21

from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also

22

alleges a legal error by the state court.” Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013).

23
24
25
26

[A] federal district court dealing with a suit that is, in part, a
forbidden de facto appeal from a judicial decision of a state court
must refuse to hear the forbidden appeal. As part of that refusal, it
must also refuse to decide any issue raised in the suit that is
‘inextricably intertwined’ with an issue resolved by the state court in
its judicial decision.

27

Doe, 415 F.3d at 1043 (quoting Noel, 341 F.3d at 1158); see also Exxon, 544 U.S. at 286 n. 1 (“a

28

district court [cannot] entertain constitutional claims attacking a state-court judgment, even if the
6

1

state court had not passed directly on those claims, when the constitutional attack [is]

2

‘inextricably intertwined’ with the state court’s judgment”) (citing Feldman, 460 U.S. at 482 n.

3

16)); Bianchi v. Rylaarsdam, 334 F.3d 895, 898, 900 n. 4 (9th Cir. 2003) (“claims raised in the

4

federal court action are ‘inextricably intertwined’ with the state court’s decision such that the

5

adjudication of the federal claims would undercut the state ruling or require the district court to

6

interpret the application of state laws or procedural rules”) (citing Feldman, 460 U.S. at 483 n. 16,

7

485).

8

III.

9

Leave to Amend
For the reasons stated above, plaintiff’s complaint should be dismissed. The undersigned

10

has carefully considered whether plaintiff may amend the complaint to state a claim upon which

11

relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,

12

prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d

13

1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,

14

701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the

15

court does not have to allow futile amendments).

16

Here, given the deficiencies noted above and plaintiff’s prior refusal to amend the

17

complaint, the undersigned finds that again granting plaintiff leave to amend would be futile.

18

CONCLUSION

19

Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that:

20

1. Plaintiff’s September 11, 2017 application to proceed in forma pauperis (ECF No. 2)

21
22
23

be denied;
2. Plaintiff’s September 11, 2017 complaint (ECF No. 1) be dismissed without leave to
amend; and

24

3. This action be dismissed.

25

These findings and recommendations will be submitted to the United States District Judge

26

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

27

days after being served with these findings and recommendations, plaintiffs may file written

28

objections with the court. A document containing objections should be titled “Objections to
7

1

Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

2

objections within the specified time may, under certain circumstances, waive the right to appeal

3

the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

4

Dated: June 18, 2018

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

DLB:6
DB\orders\orders.pro se\hysell1887.dism.f&rsdlb2

24
25
26
27
28
8