Summers v. Marin County Recorders Office

Filing 7

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND. Any First Amended Complaint shall be filed no later than May 29, 2009. Signed by Judge Maxine M. Chesney on April 22, 2009. (mmclc2, COURT STAFF) (Filed on 4/22/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff refers to the documents as "Declaration of Rescission, Affidavit of and Deed of Trust Rescinded, and the County Recorder Challenge." (See Compl. at unnumbered 12.) Plaintiff has not provided copies of the documents.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

CHRISTOPHER SUMMERS, Plaintiff, v. MARIN COUNTY RECORDERS OFFICE, Defendant. /

No. C-09-1485 MMC ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND

United States District Court

Before the Court are plaintiff's complaint and application to proceed in forma pauperis, both filed April 3, 2009. When a party seeks to proceed in forma pauperis, the district court is required to dismiss the case if the court determines the complaint fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Here, plaintiff's complaint consists of an "Affidavit of Fact," in which plaintiff states that, on April 2, 2009, the "Marin County Recorders office" refused to "file" three documents plaintiff sought to have "filed" (see id. at unnumbered 12),1 and a letter addressed to "Ms. Joan C. Thyer, County of Marin, Recording Dept.," in which plaintiff asserts that the "determination" not to "file" such documents "can be construed as a violation of Due Process" (see Compl. at unnumbered 8).

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Plaintiff's complaint is titled "Violation 18 U.S.C. 241 242 plus Affidavit," which statutory reference the Court construes as a reference to 42 U.S.C. § 1983.2 Plaintiff, however, has failed to indicate any life, liberty, or property interest implicated by the Marin County Recorder's alleged failure to file the documents in question. See Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 523 (9th Cir. 1994) (holding "[t]o state a claim under 42 U.S.C. § 1983 based on an alleged violation of due process, [a plaintiff] must allege a deprivation of a life, liberty or property interest within the meaning of the Fourteenth Amendment's Due Process Clause").3 Accordingly, plaintiff's complaint is hereby DISMISSED, with leave to file, no later than May 29, 2009, a First Amended Complaint curing the deficiencies noted. If plaintiff does not file a First Amended Complaint by the required date, the Court will dismiss the action. The Court will defer ruling on plaintiff's application to proceed in forma pauperis pending plaintiff's filing of a First Amended Complaint, if any. IT IS SO ORDERED.

Dated: April 22, 2009

MAXINE M. CHESNEY United States District Judge

Sections 241 and 242 are criminal statutes entitled, respectively, "Conspiracy against rights" and "Deprivation of rights under color of law." See 18 U.S.C. §§ 241, 242. Section 1983, by contrast, provides a civil cause of action for the deprivation, under color of state law, "of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. See 42 U.S.C. § 1983. Plaintiff also refers, in the above-referenced letter, to "Revised Statutes of the United States" §§ 5403, 5407, and 5408, 18 U.S.C. § 2071, and California Government Code § 27201. (See Compl. at unnumbered 3-6.) The Revised Statutes of the United States is an outdated statutory compilation last published in 1878. Section 2071 is a criminal statute and, consequently, is inapplicable herein. Section 27201 is a state statute and, consequently, cannot provide a basis for subject matter jurisdiction herein. 2
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