(PS) Peden v. Bernard

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/5/2024 RECOMMENDING the action be dismissed with prejudice, and 2 Motion for IFP be denied as moot. Referred to Judge Troy L. Nunley. 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-02268-TLN-KJN PS
FINDINGS AND RECOMMENDATIONS

v.

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GEORGE BERNARD,

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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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Because the undersigned finds that the court lacks subject matter jurisdiction over this action, the

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undersigned recommends that the action be dismissed without prejudice, and that plaintiff’s

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application to proceed in forma pauperis in this court be denied as moot. See United Investors

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

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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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i.

Subject Matter Jurisdiction and Frivolity

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The court must dismiss a case if, at any time, it determines that it lacks subject matter

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jurisdiction. Rule 12(h)(3). 2 A federal district court generally has original jurisdiction over a

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civil action when: (1) a federal question is presented in an action “arising under the Constitution,

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laws, or treaties of the United States” or (2) there is complete diversity of citizenship and the

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amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). Further, a plaintiff

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must have standing to assert a claim, which requires an injury in fact caused by defendant(s) that

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may be redressed in court. Harrison v. Kernan, 971 F.3d 1069, 1073 (9th Cir. 2020). Under the

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well-pleaded complaint rule, “federal jurisdiction exists only when a federal question is presented

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on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S.

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386, 392 (1987).
Federal courts lack subject matter jurisdiction to consider claims that are “so insubstantial,

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implausible, foreclosed by prior decisions of this court, or otherwise completely devoid of merit

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as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Environment, 523 U.S.

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83, 89 (1998); Hagans v. Lavine, 415 U.S. 528, 537 (1974) (court lacks subject matter jurisdiction

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over claims that are “essentially fictitious,” “obviously frivolous” or “obviously without merit”);

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see also Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549-50 (9th Cir. 2018)

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(noting that the “wholly insubstantial and frivolous” standard for dismissing claims operates

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under Rule 12(b)(1) for lack of federal question jurisdiction). A claim is legally frivolous when it

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Citation to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted.
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lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A

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court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory

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or where the factual contentions are clearly baseless. Id. at 327; Rule 12(h)(3).

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ii.

Federal Notice Pleading and a Complaint’s Failure to State a Claim

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Rule 8(a) requires that a pleading be “(1) a short and plain statement of the grounds for the

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court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader is

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entitled to relief; and (3) a demand for the relief sought, which may include relief in the

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alternative or different types of relief.” Each allegation must be simple, concise, and direct. Rule

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8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other grounds)

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(“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus

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litigation on the merits of a claim.”).

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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 alleges defendant George Bernard is “in collusion to defraud Plaintiff out of his

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home” and that defendant is liable for breach of contract. (ECF No. 1 at 1.) Plaintiff rented a

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room from defendant. (Id. at 1.) Defendant allegedly agreed that utilities would be shared by

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other renters. (Id.) However, when the other renters moved out of the property, plaintiff was

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stuck with the bills. (Id. at 1-2.) Defendant subsequently sought to evict plaintiff. (Id. at 2.)

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(See also id. at 1, citing 23-UD-04039 and 4-6, corresponding Eviction Notice and Notice of

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Time and Trial.) Because the gravamen of plaintiff’s complaint concerns ongoing state

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proceedings, this case is barred by the doctrine of Younger abstention, which prohibits a federal

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court’s interference with an ongoing state court case where the “pending state proceeding that

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implicates important state interests and provides the federal plaintiff with an opportunity to raise

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federal claims.” Baffert v. California Horse Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003). 3

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Accordingly, the undersigned lacks jurisdiction over the claims alleged in plaintiff’s complaint.
Plaintiff cites to 18 U.S.C. § 242 as a basis for his claims. (ECF No. 1 at 1.) Section 242

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prohibits individuals acting under color of law from engaging in pattern or practice of conduct

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that deprives persons of rights, privileges, or immunities secured or protected by United States

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Constitution or laws. It does not, however, provide a private right of action. Uziel v. Superior Ct.

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of Cal., 857 Fed. App'x 405, 406 (9th Cir. 2021) (holding that 18 U.S.C. § 242 does not provide a

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private right of action (ECF No. 1 at 1, citing 18 U.S.C. § 242). Accordingly, to the extent

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plaintiff’s complaint is based on 18 U.S.C. § 242, such claims are legally frivolous.

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For these reasons, plaintiff’s complaint should be dismissed. Because the jurisdictional

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

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

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

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be denied when amendment would be futile).

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The undersigned notes that the essential facts of this case, i.e., plaintiff’s eviction, are the same
as those alleged in Case No. 2:23-CV-2165-KJM-KJN.
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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;

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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

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

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

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir.

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1991).

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Dated: February 5, 2024

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pede.2268

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