(PS) Griffith et al v. Paran LLP

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/8/2021 GRANTING 2 Motion to Proceed IFP. RECOMMENDING that Plaintiff's first amended complaint be dismissed without leave to amend, and the Clerk of Court be directed to close this case. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these F & R's.(Reader, L)

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Case 2:21-cv-01314-JAM-CKD Document 3 Filed 09/09/21 Page 1 of 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiffs, 13 14 15 No. 2:21-cv-01314-JAM-CKD PS MICHAEL GRIFFITH AND DETRICK CURTIS CONERLY, ORDER GRANTING IFP REQUEST AND DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND AND v. PARAN LLP, FINDINGS AND RECOMMENDATIONS Defendant. 16 17 18 Plaintiff Detrick Curtis Conerly proceeds pro se in this action which is referred to the 19 undersigned by Local Rule 302(c)(21) pursuant to 28 U.S.C. § 636(b). Plaintiff Conerly, who is 20 incarcerated at FCI McKean in Pennsylvania, has filed an application in support of his request to 21 proceed in forma pauperis. (ECF No. 2.) Plaintiff Conerly’s application makes the showing 22 required by 28 U.S.C. § 1915. The request will be granted. 23 I. 24 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis SCREENING REQUIREMENT 25 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a 26 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 27 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 28 1 Case 2:21-cv-01314-JAM-CKD Document 3 Filed 09/09/21 Page 2 of 5 1 (2000). In performing this screening, the court liberally construes a pro se plaintiff’s pleadings. 2 See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v. MacDougall, 454 3 U.S. 364, 365 (1982) (per curiam). II. 4 ALLEGATIONS IN THE COMPLAINT Plaintiff Conerly’s complaint 1 names Paran, LLP, as the sole defendant. The factual 5 6 allegations are difficult to discern; however, plaintiff seeks to enforce a state court judgment. 7 Specifically, plaintiff Conerly alleges he and Michael Griffith obtained a confession of judgment 8 in the amount of $104,880.00 in the Court of Common Pleas in Westmoreland County, 9 Pennsylvania. Plaintiff alleges defendant has failed to pay the sum of money owed based on the 10 judgment. 11 III. PLEADING STANDARDS When considering whether a complaint states a claim upon which relief can be granted, 12 13 the court accepts the factual allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 14 and construes the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 15 416 U.S. 232, 236 (1974). A claim upon which the court can grant relief has facial plausibility. 16 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Iqbal, 556 U.S. at 678. To avoid dismissal for failure to state a claim a 19 complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic 20 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 21 555–57 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere 22 conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 23 //// 24 //// 25 //// 26 27 28 1 Plaintiff Michael Griffith has neither signed the complaint nor requested in forma pauperis status. 2 Case 2:21-cv-01314-JAM-CKD Document 3 Filed 09/09/21 Page 3 of 5 1 IV. 2 THE COMPLAINT FAILS TO STATE A CLAIM AND FAILS TO SET FORTH A BASIS FOR FEDERAL JURISDICTION A. Plaintiff Griffith 3 Plaintiff Michael Griffith has not signed the complaint. In addition, as a litigant 4 5 proceeding pro se, plaintiff Conerly cannot represent Griffith in this action. See Simon v. 6 Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008) (citing collected cases and noting courts 7 routinely adhere to the general rule prohibiting pro se plaintiffs from pursuing claims on behalf of 8 others in a representative capacity). Accordingly, plaintiff Griffith lacks standing to proceed on 9 the complaint as it is currently filed. 10 B. Claim to Enforce a Foreign Judgment 11 The complaint requests that “full faith and credit as well as enforcement” be given to the 12 “confession of judgment obtained by [plaintiffs] on 6/20/17 in Greensburg, PA.” (ECF No. 1 at 13 1.) Plaintiff Conerly has attached many pages of legal documents from his Pennsylvania cases, 14 although none appears to be a certified judgment. Neither the Full Faith and Credit Clause of the U.S. Constitution nor the corresponding 15 16 statute, 28 U.S.C. § 1738, is an independent basis for federal court jurisdiction, and neither 17 provides a private right of action. See People of State of California ex rel. McColgan v. Bruce, 18 129 F.2d 421, 424 (9th Cir. 1942) (holding that these provisions “establish a rule of evidence,” 19 not a “ground of jurisdiction”) (internal quotation marks omitted). Instead, these provisions 20 simply require that courts “give the same preclusive effect to a state-court judgment as another 21 court of that State would give.” Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 22 (1986). Accordingly, plaintiff has neither set forth a basis for federal jurisdiction under 28 U.S.C. 23 24 § 1331 nor invoked a statute that provides a private right of action. In addition, plaintiff is 25 attempting to enforce a state court judgment but fails to make a showing that he has an 26 enforceable judgment. Under these circumstances, the complaint must be dismissed. 27 //// 28 //// 3 Case 2:21-cv-01314-JAM-CKD Document 3 Filed 09/09/21 Page 4 of 5 1 C. Opportunity to Amend 2 When considering whether to allow an opportunity to file an amended complaint, a court 3 “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). While 4 leave to amend shall be freely given, the court does not have to allow futile amendments. 5 Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983); 6 see also Foman v. Davis, 371 U.S. 178, 182 (1962). 7 The court concludes that granting leave to amend in this case would be futile because it is 8 clear from the face of the initial pleading that (1) the court lacks jurisdiction and (2) the statute 9 under which plaintiff asserts claims does not provide for a private right of action. Such 10 deficiencies cannot be cured by amendment. 2 V. 11 In accordance with the above, IT IS ORDERED that plaintiff Conerly’s request to proceed 12 13 CONCLUSION in forma pauperis (ECF No. 2) is granted. 14 In addition, IT IS RECOMMENDED: 15 1. Plaintiff’s first amended complaint (ECF No. 4) be dismissed without leave to amend for failure to state a cognizable claim for relief and lack of jurisdiction; and 16 17 2. The Clerk of Court be directed to close this case. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, plaintiff may file written objections 21 with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 23 //// 24 //// 25 26 27 28 2 The court further notes this is not the first civil action filed in a United States District Court in which plaintiff Conerly has unsuccessfully sought to enforce a foreign judgment against defendant Paran, LLP, on behalf of himself and others. See, e.g., Bonner, et al., v. Ada County, et al., No. 1:18-cv-00058-DCN, 2018 WL 11216390 (D. Idaho August 8, 2018). 4 Case 2:21-cv-01314-JAM-CKD Document 3 Filed 09/09/21 Page 5 of 5 1 failure to file objections within the specified time may waive the right to appeal the District 2 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: September 8, 2021 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 8.Griffith.21cv1314.screen 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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