(PS) Le v. Dwyer et al
Filing
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ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/4/2019 DENYING Plaintiff's 9/19/2019 motion for emergency relief (ECF No. 7 ) without prejudice to renewal; and DENYING Plaintiff's 9/23/2019 motion f or jury trial (ECF No. 8 ) without prejudice to renewal; and RECOMMENDING Plaintiff's 3/7/2019 application to proceed in forma pauperis (ECF No. 2 ) be denied; Plaintiff's 3/7/2019 complaint (ECF No. 1 ) be dismissed without prejudice; and this action be dismissed. Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HELEN LE,
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Plaintiff,
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No. 2:19-cv-0414 KJM DB PS
v.
ORDER AND
FINDINGS AND RECOMMENDATIONS
MOLLY C DWYER, et al.,
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Defendants.
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Plaintiff, Helen Le, is proceeding in this action pro se. This matter was referred to the
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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, motion to proceed in forma pauperis pursuant to 28
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U.S.C. § 1915, motion for emergency relief, and motion for jury trial. (ECF Nos. 1, 2, 7, 8.)
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Plaintiff’s complaint appears to concern frustrations with various court proceedings following a
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vehicle accident.
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, the undersigned will recommend that plaintiff’s complaint be dismissed without leave to
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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.
Plaintiff’s Complaint
Here, the complaint concerns plaintiff’s “OLD case: 2-16-CV-1447 JAM AC PS and 2:18
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CV-0203 TLN EFB PS” stemming from events occurring on “1/4/2013 and 12/16/2014.”
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(Compl. (ECF No. 1) at 5, 8.1) Although the allegations found in the complaint are difficult to
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decipher, the complaint alleges that after an “accident . . . [a]ll CEO Insurance” and “health
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insurance . . . . unite[d] together” to “torture” plaintiff and plaintiff’s family. (Id. at 5-6.)
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Plaintiff allegedly received “no feed back from any Judge of US” and seeks $200 million in
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compensation requested in “case 2:18cv-0203 TLN EFB PS.” (Id. at 6.) Named as defendants
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are individuals employed as court personnel. (Id. at 1-3.)
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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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Page number citations such as this are to the page number reflected on the court’s CM/ECF
system and not to the page numbers assigned by the parties.
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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.
Moreover, the court’s records reveal that on June 27, 2016, plaintiff filed a federal action
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in this court concerning an accident occurring on January 4, 2013.2 See HELEN LE, et al., v.
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KENNETH EDWARD AZNOE, RICHARD EDWARD McGREEVY, et al., No. 2:16-cv-1447
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JAM AC PS, (“Le I”), (ECF No. 1). That action was dismissed for lack of subject matter
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jurisdiction. (Le I, ECF No. 14, 18). The Ninth Circuit affirmed on appeal, holding that “[t]he
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district court properly dismissed [the] action for lack of subject matter jurisdiction because the
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federal claims were too insubstantial to confer jurisdiction.” Le v. McGreevy, 692 Fed. Appx.
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378, 379 (9th Cir. 2017).
On January 30, 2018, plaintiff commenced a second action in this court, (“Le II”),
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“seeking to challenge the dismissal of Le I and the adverse rulings on appeal.” Le v. United
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States, No. 2:18-cv-0203 TLN EFB PS, 2018 WL 2010497, at *3 (E.D. Cal. Apr. 30, 2018). Le
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II was also “dismissed for lack of jurisdiction and failure to state a claim.” Id. at *1.
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As was true of Le I and Le II, this action must be dismissed for lack of jurisdiction and
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failure to state a claim. As stated by the court in Le II, “it is clear that the instant action seeks to
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challenge the dismissal of Le I, [Le II,] and the adverse rulings on appeal. This court lacks
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jurisdiction to review or overturn those decisions.” Le II, 2018 WL 2010497, at *3; see also
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Dhalluin v. McKibben, 682 F.Supp. 1096, 1097 (D. Nev. 1988) (“The structure of the federal
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courts does not allow one judge of a district court to rule directly on the legality of another district
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judge’s judicial acts or to deny another district judge his or her lawful jurisdiction.”).
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The court may take judicial notice of its own files and of documents filed in other courts. Reyn’s
Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (taking judicial notice
of documents related to a settlement in another case that bore on whether the plaintiff was still
able to assert its claims in the pending case); Burbank–Glendale–Pasadena Airport Auth. v. City
of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (taking judicial notice of court filings in a state
court case where the same plaintiff asserted similar and related claims); Hott v. City of San Jose,
92 F.Supp.2d 996, 998 (N.D. Cal. 2000) (taking judicial notice of relevant memoranda and orders
filed in state court cases).
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III.
Leave to Amend
For the reasons stated above, plaintiff’s complaint should be dismissed. The undersigned
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has carefully considered whether plaintiff may amend the complaint to state a claim upon which
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relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,
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prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d
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1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
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701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the
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court does not have to allow futile amendments).
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Here, given the defects noted above, the undersigned finds that granting plaintiff leave to
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amend would be futile.
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IV.
Plaintiff’s Motions
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On September 19, 2019, plaintiff filed a motion for emergency relief “to solve
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compensation.” (ECF No. 7 at 1.) On September 23, 2019, plaintiff filed a motion “to open
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TRIAL[.]” (ECF No. 8 at 1.) However, the undersigned has recommended that plaintiff’s
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complaint be dismissed without leave to amend. Plaintiff’s motions, therefore, will be dismissed
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without prejudice pending resolution of these findings and recommendations.
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CONCLUSION
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Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s September 19, 2019 motion for emergency relief (ECF No. 7) is denied
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without prejudice to renewal; and
2. Plaintiff’s September 23, 2019 motion for jury trial (ECF No. 8) is denied without
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prejudice to renewal.
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Also, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s March 7, 2019 application to proceed in forma pauperis (ECF No. 2) be
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denied;
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2. Plaintiff’s March 7, 2019 complaint (ECF No. 1) be dismissed without prejudice; and
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3. This action be dismissed.
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These findings and recommendations will be 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)(1). Within fourteen (14)
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days after being served with these findings and recommendations, plaintiffs may file written
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objections with the court. A document containing objections should be titled “Objections to
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may, under certain circumstances, waive the right to appeal
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the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: October 4, 2019
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