Constable v. Newell et al

Filing 3

ORDER signed by Magistrate Judge Deborah Barnes on 5/11/2018 DISMISSING 1 Complaint with leave to amend. Within 28 days from the date of this order, an amended complaint shall be filed that cures the defects noted in this order and complies with the Federal Rules of Civil Procedure and the Local Rules of Practice. Failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUSSELL CONSTABLE,

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Plaintiff,

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No. 2:18-cv-0221 JAM DB PS

v.

ORDER

CLIFFORD NEWELL, et al.,

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Defendants.

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Plaintiff, Russell Constable, is proceeding in this action pro se. This matter was referred

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

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before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about the “rights to travel on

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federally funded state roads and highways and interstate[] freeways in the many States.” (Compl.

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(ECF No. 1) at 5.)
The court is required to screen complaints brought by parties proceeding in forma

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

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

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below, plaintiff’s complaint will be dismissed with leave to amend.

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I.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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

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

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

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

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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.

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

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Plaintiff’s Complaint
Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing

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that plaintiff is entitled to relief. In this regard, plaintiff’s complaint fails to state a claim or allege

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a fact in support of a claim. In this regard, the sole allegation against the named defendants is that

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they “entered people’s opposition to Plaintiff’s application to removal . . . .” (Compl. (ECF No.

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1) at 8.) With respect to the relief sought, plaintiff asserts that plaintiff is “asking for an answer to

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this question: Is traveling upon and or transporting ones’ personal property upon the public road a

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right or a privilege?” (Id. at 7.)

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

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

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

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

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

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

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enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,

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557). A plaintiff must allege with at least some degree of particularity overt acts which the

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defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.

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Moreover, plaintiff is advised that the Supreme Court has made clear:
The use of the public highways by motor vehicles, with its
consequent dangers, renders the reasonableness and necessity of
regulation apparent. The universal practice is to register ownership
of automobiles and to license their drivers. Any appropriate means
adopted by the states to insure competence and care on the part of
its licensees and to protect others using the highway is consonant
with due process.

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Reitz v. Mealey, 314 U.S. 33, 36 (1941), overruled in part on other grounds by Perez v.

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Campbell, 402 U.S. 637 (1971). There is no disputing that a state may impose licensing

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requirements upon drivers.

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In the absence of national legislation covering the subject, a state
may rightfully prescribe uniform regulations necessary for public
safety and order in respect to the operation upon its highways of all
motor vehicles,-those moving in interstate commerce as well as
others. And to this end it may require the registration of such
vehicles and the licensing of their drivers, charging therefor
reasonable fees graduated according to the horse-power of the
engines,-a practical measure of size, speed, and difficulty of
control. This is but an exercise of the police power uniformly
recognized as belonging to the states and essential to the
preservation of the health, safety, and comfort of their citizens; and
it does not constitute a direct and material burden on interstate
commerce.
Hendrick v. State of Maryland, 235 U.S. 610, 622 (1915).
Moreover, because the complaint references “the State Court,” and a “District Attorney,”

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plaintiff is advised that in Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme

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Court held that a plaintiff may not prevail on § 1983 claim if doing so “would necessarily imply

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the invalidity” of plaintiff’s conviction arising out of the same underlying facts as those at issue in

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the civil action “unless the plaintiff can demonstrate that the conviction or sentence has already

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been invalidated.” 512 U.S. at 487. Thus, “Heck says that ‘if a criminal conviction arising out of

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the same facts stands and is fundamentally inconsistent with the unlawful behavior for which

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section 1983 damages are sought, the 1983 action must be dismissed.’” Smith v. City of Hemet,

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394 F.3d 689, 695 (9th Cir. 2005) (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.

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1996)). “Consequently, ‘the relevant question is whether success in a subsequent § 1983 suit

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would ‘necessarily imply’ or ‘demonstrate’ the invalidity of the earlier conviction or sentence . . .

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.” Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Smithart, 79
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F.3d at 951).
Moreover, under the Rooker-Feldman doctrine a federal district court is precluded from

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hearing “cases brought by state-court losers complaining of injuries caused by state-court

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judgments rendered before the district court proceedings commenced and inviting district court

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review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

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U.S. 280, 284 (2005). The Rooker-Feldman doctrine applies not only to final state court orders

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and judgments, but to interlocutory orders and non-final judgments issued by a state court as well.

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Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Worldwide

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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[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
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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.

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

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

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

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

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

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

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

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

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485).
Additionally, the Younger abstention doctrine generally forbids federal courts from

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interfering with ongoing state judicial proceedings. See Younger v. Harris, 401 U.S. 37, 53-54

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(1971); Kenneally v. Lungren, 967 F.2d 329, 331 (9th Cir. 1992). Thus, Younger abstention is

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appropriate when state proceedings of a judicial nature: (1) are ongoing; (2) implicate important

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state interests; and (3) provide an adequate opportunity to raise federal questions. Middlesex

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County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Gilbertson v.

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Albright, 381 F.3d 965, 984 (9th Cir. 2004) (en banc).
Finally, it appears that the named defendants are prosecutors. Plaintiff is advised that

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“[a]bsolute immunity is generally accorded to . . . prosecutors functioning in their official

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capacities.” Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004). In this

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regard, “[a] state prosecutor is entitled to absolute immunity from liability under § 1983 for

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violating a person’s federal constitutional rights when he or she engages in activities ‘intimately

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associated with the judicial phase of the criminal process.’” Broam v. Bogan, 320 F.3d 1023,

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1028 (9th Cir. 2003) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).

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III.

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Leave to Amend
Because plaintiff’s complaint fails to state claim upon which relief can be granted the

complaint must be dismissed. The undersigned has carefully considered whether plaintiff may
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amend the complaint to state a claim upon which relief can be granted. “Valid reasons for

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denying leave to amend include undue delay, bad faith, prejudice, and futility.” California

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Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also

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Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)

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(holding that while leave to amend shall be freely given, the court does not have to allow futile

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amendments).

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However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff

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may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts

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in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,

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1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.

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Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

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amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.

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1988)).

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Here, given the vague and conclusory nature of the complaint’s allegations, the

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undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile.

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Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an

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amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended

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complaint “the tenet that a court must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While

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legal conclusions can provide the complaint’s framework, they must be supported by factual

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allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from

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conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).

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Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an

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amended complaint complete. Local Rule 220 requires that any amended complaint be complete

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in itself without reference to prior pleadings. The amended complaint will supersede the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
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just as if it were the initial complaint filed in the case, each defendant must be listed in the caption

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and identified in the body of the complaint, and each claim and the involvement of each

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defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file

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must also include concise but complete factual allegations describing the conduct and events

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which underlie plaintiff’s claims.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. The complaint filed January 31, 2018 (ECF No. 1) is dismissed with leave to

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amend. 1

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2. Within twenty-eight days from the date of this order, an amended complaint shall be

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filed that cures the defects noted in this order and complies with the Federal Rules of Civil

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Procedure and the Local Rules of Practice. 2 The amended complaint must bear the case number

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assigned to this action and must be titled “Amended Complaint.”

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3. Failure to comply with this order in a timely manner may result in a recommendation

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that this action be dismissed.

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DATED: May 11, 2018

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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Plaintiff need not file another application to proceed in forma pauperis at this time unless
plaintiff’s financial condition has improved since the last such application was submitted.
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Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of
voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.
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