(PS) Peden v. Zaman et al

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/5/2024 RECOMMENDING this action be dismissed with prejudice and 2 Motion for IFP be denied as moot. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these Findings and Recommendations. (Woodson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY ELVIS PEDEN,

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Plaintiff,

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No. 2:23-cv-02165-KJM-KJN (PS)
FINDINGS AND RECOMMENDATIONS

v.

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TARIQ ZAMAN, ET AL.,

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Defendant.

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Plaintiff, proceeding without counsel in this action, requests leave to proceed in forma

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pauperis (“IFP”). 1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of an

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action “without prepayment of fees or security” by a person who is unable to pay such fees).

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However, because the undersigned finds that the court lacks subject matter jurisdiction over this

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action, the undersigned recommends that the action be dismissed without prejudice, and that

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plaintiff’s application to proceed in forma pauperis in this court be denied as moot. See United

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Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (noting the

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federal court’s independent duty to ensure it has subject matter jurisdiction in the case).

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Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to
E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72.
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Legal Standards

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Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7

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(9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is

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to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it

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appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31

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(9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be

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given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).

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A complaint fails to state a claim if it either lacks a cognizable legal theory or sufficient

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facts to allege a cognizable legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir.

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2015). To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a complaint “must

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contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

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face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pleaded factual allegations as true, Erickson v. Pardus, 551 U.S.

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89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan

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v. Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true

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“conclusory [factual] allegations that are contradicted by documents referred to in the complaint,”

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or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v.

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CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).

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Analysis

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Plaintiff brings this action against defendants Tariq Zaman, George Bernard, and Joshua

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B. Clark. (ECF No. 1.) Plaintiff alleges defendant Zaman, who owns plaintiff’s former

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residence, conspired with defendant Bernard and defendant Clark to evict plaintiff and render him
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homeless. (See ECF No. 1 at 3, citing Sacramento Superior Court Case No. 23UD04038 and 5-6,

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Eviction Notice and Notice of Trial.) Plaintiff asks the court to stop the eviction and award

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damages. (Id. at 3-4.)

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The Younger abstention doctrine prohibits this court from interfering in state court

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unlawful detainer actions. In Younger v. Harris, 401 U.S. 37, 53-54 (1971), the Supreme Court

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recognized a long-standing policy against federal court interference in ongoing state proceedings.

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Younger abstention is appropriate when (1) there are ongoing state proceedings (2) that implicate

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important state interests and (3) there is an adequate opportunity to raise federal issues in the state

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proceedings. Middlesex Cnty. Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 432

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(1982). Courts have found Younger abstention appropriate when asked to restrain state unlawful

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detainer proceedings. See, e.g., Contreras v. MTC Fin. Inc., 2010 WL 5441950, at *1 (N.D. Cal.

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Dec. 28, 2010); Wadhwa v. Aurora Loan Servs., LLC, No. CIV. S-11-1784-KJM-KJN, 2011 WL

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2681483, at *3 (E.D. Cal. July 8, 2011).

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Here, the gravamen of plaintiff’s complaint concerns his eviction, which involve state

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court proceedings. To the extent proceedings in state court may be ongoing, this case is barred by

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the doctrine of Younger abstention, which prohibits a federal court's interference with an ongoing

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state court case where the “pending state proceeding that implicates important state interests and

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provides the federal plaintiff with an opportunity to raise federal claims.” Baffert v. California

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Horse Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003). If the underlying eviction proceedings

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have concluded and plaintiff seeks to reverse an adverse ruling, the Rooker-Feldman doctrine

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prevents the court from exercising jurisdiction over this case because it would constitute an

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improper de facto appeal of state court orders regarding property ownership and possession. See

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Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v.

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Feldman, 460 U.S. 462 (1983).

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Finally, although the complaint cites to two federal criminal statutes as a basis for

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plaintiff’s action, neither provides a private right of action (ECF No. 1 at 1, citing 18 U.S.C.

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§ 371 and 18 U.S.C. § 242). Newman v. Caliber Home Loans, Inc., 2018 WL 3361442, at *1

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(S.D. Cal. July 10, 2018) (holding that 18 U.S.C. § 371 “is a criminal statute and does not provide
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a private cause of action”); Uziel v. Superior Ct. of Cal., 857 Fed. App'x 405, 406 (9th Cir. 2021)

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(holding that 18 U.S.C. § 242 does not provide a private right of action). Accordingly, plaintiff,

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as a private individual, cannot pursue claims against defendants under 18 U.S.C. § 371 or 18

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U.S.C. § 242.

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Accordingly, plaintiff’s complaint should be dismissed. Because the jurisdictional defects

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in the complaint are inherent to the gravamen of the complaint, they are not defects that can be

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cured by the pleading of additional facts. Thus, amendment would be futile and should not be

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granted. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (leave to amend may be

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denied when amendment would be futile).
FINDINGS AND RECOMMENDATIONS

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It is RECOMMENDED that:

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1. The action be DISMISSED WITH PREJUDICE;

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2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT;
and

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3. The Clerk of Court be directed to CLOSE this case.

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

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the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after

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being served with these findings and recommendations, plaintiff may file written objections with

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the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455

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(9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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Dated: February 5, 2024

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pede.2165

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