Iegorova v. Light House Apartments

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 5/26/2018 GRANTING plaintiff's 2 Motion to Proceed IFP. Plaintiff's complaint is DISMISSED with leave to file an amended complaint within 45 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LIUDMYLA IEGOROVA,

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Plaintiff,

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v.

No. 2:18-cv-00971-JAM-GGH

ORDER

LIGHT HOUSE APARTMENTS,

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Defendant.

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Plaintiff filed her complaint pro se on April 19, 2018, ECF No. 1, along with an

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application to proceed in forma pauperis ECF No. 2. The court has reviewed the verified

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application and finds that plaintiff lacks the financial wherewithal to pay the fees and costs

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associated with the case and will, therefore, grant the motion.

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that

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are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §

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1915A(b)(1),(2).

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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); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir.1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir.1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a cause of

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action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). “The pleading

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must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a

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legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and

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Procedure 1216, pp. 235-235 (3d ed.2004). In reviewing a complaint under this standard, the

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court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex

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Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to

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the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411,

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421 (1969).

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DISCUSSION
An essential element of a claim brought in federal court is the jurisdiction of the court.

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Federal courts are courts of limited jurisdiction and admission to these courts must be based on

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either a federal question of law, see e.g., 28 U.S.C. § 1331, which applies to civil actions arising

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under the Constitution, laws or treaties of the United States, or a diversity of citizenship between

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the parties in the action, see 28 U.S.C. § 1332, which applies when plaintiff is a citizen of one

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state and defendant is a citizen of another and the amount in controversy between them exceeds

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the sum or value of $75,000.

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Plaintiff seeks damages from defendant, apparently the manager of the apartment house

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where plaintiff resides, for entering her apartment without permission, stealing her personal

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property, and threatening her. Plaintiff purports to sue for damages to redress these grievances

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under 18 U.S.C. section 241, a criminal law statute that imposes imprisonment and fines for

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conspiracy “to injure oppress threaten, or intimidate any person . . . in the free exercise or

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enjoyment of any right or privilege secured to him by the Constitution of the United States.”

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Except in unusual circumstances, criminal statutes give no private right of action. Kraft v. Old

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Castle Precasr, Inc., 2015 WL 4693220 (C.D. Cal. 2015) (and cases cited therein). The weight of
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authority makes clear that private citizens have no right of action for a damages action under this

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criminal law statute. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Christian v.

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United States, 2014 WL 3809046 (D.Nev. 2014).

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Although 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) and are therefore construed liberally “and

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may only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief.” Tegorov v. Daniil, 2018 WL 1470588 *1

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(E.D.Cal. 2018). A pro se litigant is, therefore, entitled to notice of the deficiencies in the

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complaint and an opportunity to amend, unless the complaint’s deficiencies could not be cured by

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amendment.” Id., citing Noll v. Carlson, 809 F.2 1446, 1448 (9th Cir. 1987).

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On the facts stated by plaintiff it would appear that she may well have a state law claim

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against defendant for trespass or invasion of privacy or the like that would bear damages liability

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or that she can, through local authorities, seek to have defendant criminally prosecuted for the

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same types of offenses. But as it stands, plaintiff has no federal claim that would gain her access

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to this federal court.

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On the other hand plaintiff makes mention of a “service animal” that defendant apparently

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protested regarding it occupying plaintiff’s apartment in defendant’s “no pets” apartment house.

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It is, therefore possible that plaintiff was attempting to plead a claim under Title III of the

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Americans with Disabilities Act, 42 USC § 12182. A plaintiff who claims she is discriminated

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against in her access to housing suitable to accommodate her disabilities must identify her

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disability, how a defendant has failed to accommodate that disability, whether discrimination in

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housing is subject to Title III, and seek redress.1 If this is, indeed, the crux of plaintiff’s

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complaint, then she must plead it consonant with the Rules of Federal Civil Procedure.

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Federal Rule 8(a) requires that a complaint contain
(1)
a short and plain statement of the grounds for the court’s jurisdiction . . . ; (2) a
short and plain statement of the claim showing that the pleader is entitled to relief; and (3)
a demand for the relief sought, which may include relief in the alternative or different
types of relief.”

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If plaintiff’s housing is supplied by a government agency, Title II of the ADA would apply.
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If, indeed, this is the crux of plaintiff’s complaint and she chooses to plead it as required, she will

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be allowed to file an amended complaint.

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CONCLUSION

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

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1. Plaintiff’s application for in forma pauperis status is GRANTED;

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2. Plaintiff’s complaint is dismissed with leave to file an amended complaint that meets

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the standards discussed in this Order within 45 days.
Dated: May 26, 2018
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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