Daniels v. Ahern et al

Filing 14

ORDER DISMISSING CASE. Signed by Magistrate Judge Donna M. Ryu on 11/26/2013. (dmrlc1, COURT STAFF) (Filed on 11/26/2013) (Additional attachment(s) added on 11/26/2013: # 1 Certificate/Proof of Service) (igS, COURT STAFF).

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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RUSSELL DANIELS,

No. C-13-02468 DMR

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Plaintiff,

ORDER DISMISSING CASE

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v.
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GREGORY J. AHERN, et al.,
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Defendants.
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___________________________________/
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On June 3, 2013, Plaintiff Russell Daniels filed suit in this Court along with an application to

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proceed in forma pauperis (“IFP”)]. [Docket Nos. 1, 2.] On September 20, 2013, the court granted

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Plaintiff’s IFP application and dismissed the Complaint with leave to amend to remedy the

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deficiencies noted in the order. [Docket No. 9.] The court ordered Plaintiff to file an amended

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complaint by no later than October 10, 2013. Plaintiff did not file an amended complaint, and on

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October 16, 2013, the court issued an Order to Show Cause, ordering Plaintiff to explain why this

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case should not be dismissed for failure to prosecute. [Docket No. 10.] Plaintiff timely responded

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and the court granted Plaintiff until November 8, 2013 to file an amended complaint. [Docket Nos.

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11, 12.]

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Plaintiff filed a First Amended Complaint on November 12, 2013. [Docket No. 13.] In the

§ 1983 claim for violation of the Equal Protection Clause of the Fourteenth Amendment; 2) violation

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of the Unruh Civil Rights Act, California Civil Code section 51; 3) conversion; 4) intentional

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interference with contractual relationships; 5) negligent interference with contractual relationships;

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6) intentional infliction of emotional harm; 7) negligent infliction of emotional harm; and 8)

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negligence. Plaintiff also added two new claims for forcible detainer in violation of California Civil

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Code section 789.3 and criminal forcible detainer in violation of California Penal Code section 418.

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For the Northern District of California

First Amended Complaint, Plaintiff alleges the same eight causes of action as in the Complaint: 1) a

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United States District Court

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With respect to the eight claims originally alleged in the Complaint, Plaintiff has not

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addressed the deficiencies noted by the court in its order dismissing the Complaint with leave to

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amend. As Plaintiff was given the opportunity to amend his Complaint to adequately plead these

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claims but failed to do so, they are dismissed. Plaintiff’s two new claims are also deficient. With

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respect to Plaintiff’s claim for forcible detainer, California Civil Code section 789.3 provides only

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that a “landlord” shall not willfully “prevent [a] tenant from gaining reasonable access to [property

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used by a tenant as his or her residence] by changing the locks or using a bootlock or by any other

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similar method or device.” Cal. Civ. Code § 789.3(b)(1). Section 789.3 “does not apply to persons

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other than landlords.” Otanez v. Blue Skies Mobile Home Park, 1 Cal. App. 4th 1521, 1526 (1991);

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see also Cal. Civ. Code § 789.3(c) (“Any landlord who violates this section shall be liable . . .”). In

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his First Amended Complaint, Plaintiff identifies Mirek Boruta as his landlord, but does not name

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him as a defendant in this matter. With respect to Plaintiff’s claim for criminal forcible detainer,

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California Penal Code section 418 is a criminal statute providing for criminal penalties for the use of

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“force or violence in entering upon or detaining any lands or other possessions of another.” Cal.

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Penal Code § 418. The section does not provide for a private right of action or civil remedy.

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Therefore, as Plaintiff may not bring claims for forcible detainer and criminal forcible detainer

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against Defendants, the court dismisses these claims, and orders the closure of this case.1

Dated: November 26, 2013

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NO

DONNA M. RYU
M. Ryu
United States ge Donna Judge
Magistrate
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For the Northern District of California

United States District Court

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ORD
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IT IS SO ORDERED.

UNIT
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A magistrate judge generally must obtain the consent of the parties to enter dispositive rulings
and judgments in a civil case. See 28 U.S.C. § 636(c)(1). However, in cases such as this one, where
the plaintiff has consented but not served the defendants, “all parties have consented pursuant to 28
U.S.C. § 636(c)(1),” and a magistrate judge therefore “‘may conduct any or all proceedings in a jury or
nonjury civil matter and order the entry of judgment in the case.’” Gaddy v. McDonald, No. CV 1108271 SS, 2011 WL 5515505, at *1 n.2 (C.D. Cal. Nov. 9, 2011) (quoting § 636(c)(1)) (citing United
States v. Real Property, 135 F.3d 1312, 1317 (9th Cir. 1995)); Third World Media, LLC v. Doe, No. C
10-04470 LB, 2011 WL 4344160, at *3 (N.D. Cal. Sept. 15, 2011)); see also Neals v. Norwood, 59 F.3d
530, 532 (5th Cir.1995) (holding that magistrate judge had jurisdiction to dismiss action as frivolous
without consent of defendants because defendants had not yet been served and therefore were not
parties).

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