Konnoff, et al v. News Corp. et al

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/29/2017 GRANTING 3 Motion to Proceed IFP and RECOMMENDING that the 1 Complaint be dismissed without leave to amend. Referred to District Judge Garland E. Burrell, Jr. Objections due within 21 days after being served with these findings and recommendations. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ILLYA KONNOFF, et al.,

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Plaintiff,

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No. 2:17-cv-02426-GEB-GGH

v.

ORDER and

NEWS CORP., et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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IN FORMA PAUPERIS APPLICATION
Plaintiff Ilya Konnoff filed this complaint for civil rights violations in pro se. ECF No. 1,

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and seeks in forma pauperis [“IFP”] status. ECF No. 3. The court has examined the in forma

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pauperis 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.
Also identified as plaintiffs are Alexander Konnoff, Sergi Kournikova, Yuri Sharapova,

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and Elena Putina all identified as living at the same address as Ilya Kononoff and all purportedly

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appearing in pro se. These additional plaintiffs have not, however sought in forma pauperis status

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or paid any filing fee, nor have they endorsed the Complaint. These additional plaintiffs, then,

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have not been shown to have engaged in this action and thus this Order will be directed only to

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plaintiff Ilya Konnoff.

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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).
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Pro se pleadings are held to a less stringent standard than those drafted by lawyers Haines

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v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may only be

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dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support of his

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claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014).

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A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to

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amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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THE COMPLAINT

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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

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(1994). The basic federal jurisdiction states, 28 U.S.C. sections 1331 and 1332, confer “federal

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

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assertion of a substantial federal right a federal court does not have jurisdiction. See Bell v.

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Hood, 327 U.S. 678, 682 (1945). A simple reference to a federal law does not create subject

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matter 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 cause of action within the court’s original jurisdiction.

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Id.

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Here plaintiff has asserted jurisdiction lies pursuant to 28 U.S.C. section1331, 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 Constitutional rights.

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

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to 28 U.S.C. section 1983 which establishes the basis for such a claim. The statute states:

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Every 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
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secured by the Constitution . . . shall be liable to the party injury in an action of law suit in
equity, or other proper proceeding for redress.
Thus, in order to state a claim under section 1983 the plaintiff must plead and prove (1)

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state action (2) which deprived him of a federal right or interest, and (3) this deprivation did not

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include constitutionally sufficient notice and an opportunity to be heard before the deprivation

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was complete. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982), i.e., he must describe

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conduct that allegedly caused deprivatio of a federal right that can be fairly attributable to the

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state. American Mfrs. Mutual Ins. Co. v. Sullivan, 527 U.S. 40, 50 (1999); Cleveland v. Bd. of

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Educ. v. Loudermill, 470 U.S. 532 (1985). In other words, there must be action taken pursuant to

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state, or federal, law and significant state involvement in the action taken. Sullivan, supra, at 50,

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n.9. The only facts stated about governmental action in this complaint refers to the government’s

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singular power to print money to the exclusion of plaintiff who seems to believe he should have

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an equal right to do so.

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All of the defendants named in this complaint are private entities or persons who can be

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included in a civil rights complaint only if there are facts suggesting a conspiracy between the

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private actor and a governmental actor or entity specifically designed to deprive this plaintiff of

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his constitutional rights. Plaintiff’s complaint does name Barack Obama and the Democratic

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National Committee as actors who have impaired him but he describes no specific actions taken

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at a specific time addressed specifically to injure him, i.e., control over printing of money – the

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only governmental act described – affects everyone and cannot be characterized as a conspiracy

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to deprive plaintiff of his rights.

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Here plaintiff sues two news organizations, News Corp. and Time Warner, the Democratic

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National Committee, the U. S. Government generally, Barack Obama and the federal

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Environmental Protection Agency. His complaint speaks of blackmailing, publishing spam that

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in some way harms him, theft of his intellectual properties in the form of film scripts he wrote

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that were converted into films without his permission, and the government’s printing of money

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which is somehow used to injure him extending back for a period of ten years. These allegations

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are basically political views disguised as tort claims. There is no mention of any specific federal

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Constitutional rights violation on which plaintiff can hang his claims.

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Finally, the amendments to the Federal Constitution that section 1983 was developed to

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protect are aimed essentially at restraining governmental entities, not private citizens and

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corporations. Thus the reference to “persons who, under color of law” subject a plaintiff to a

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deprivation of rights. Section 1983 does not purport to be applicable to non-governmental actors.

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Plaintiff has named no such actors.

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CONCLUSION

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As stated above, Haines v. Kerner, supra, directs the courts to dismiss a pro se complaint

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only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

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which would entitle him to relief. This court can find no plausible way that the injuries claimed

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by plaintiff in his complaint can be added to, refined, or amended to reflect a constitutional injury.

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For this reason the court has no choice but to dismiss this complaint without leave to amend.

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In light of the foregoing IT IS HEREBY ORDERED AND RECOMMENDED that:

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Plaintiff’s application to proceed in forma pauperis is GRANTED;

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Plaintiff’s complaint should be dismissed without leave to amend;

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The Clerk of the Court should close this file.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days

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

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v.Ylst, 951 F.2d 1153 (9th Cir.

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1991, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated: November 29, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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