Louvouezo v. City of Honolulu

Filing 13

ORDER DISMISSING CASE. Signed by Judge Donna M. Ryu on 11/20/2015. (dmrlc3, COURT STAFF) (Filed on 11/20/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
MBAY LOUVOUEZO,

7

Case No. 15-cv-04265-DMR

Plaintiff,
8
v.

ORDER DISMISSING CASE

9
CITY OF HONOLULU,

10

Re: Dkt. No. 12

Defendant.

United States District Court
Northern District of California

11
12
13

Plaintiff filed a Complaint and Application to Proceed In Forma Pauperis (“IFP
Application”) on September 18, 2015. [Docket Nos. 1 and 2.] On October 8, 2015, Plaintiff filed

14
consent to proceed before a magistrate judge pursuant to 28 U.S.C. §636(c). [Docket No. 5.] The
15

court granted the IFP Application and dismissed the complaint with leave to amend.1 [Docket No.

16
7.] On October 30, 2015, the Plaintiff filed a declination to magistrate judge jurisdiction and an
17
amended complaint. [Docket Nos. 11 and 12.]
18

The amended complaint fails to address the deficiencies identified in the court’s prior order

19
and the court dismisses the case without leave to amend.
20
21
22
23
24
25
26
27
28

1

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 11-08271 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).

I.

1

BACKGROUND

2

Plaintiff filed his amended complaint against the City of Honolulu on October 30, 2015.

3

[Docket No. 12.] The amended complaint contains no specific legal claims, but alleges that: (1)

4

Plaintiff has been chased by people in a red helicopter who are trying to kill him; (2) Plaintiff has

5

been cursed at by bus drivers; (3) cars drive through puddles to splash Plaintiff; (4) a blond man in

6

black clothing has been following Plaintiff; (5) Plaintiff’s apartment manager did not return his

7

security deposit; and (6) an airline worker charged Plaintiff an extra baggage fee. Id. Plaintiff

8

also states that that while in Honolulu he heard a woman screaming above his apartment. Plaintiff

9

called the police, but after they arrived and Plaintiff did not know the location of the screaming,
the police left without investigating. Plaintiff further alleges that helicopters and airplanes

11
United States District Court
Northern District of California

10

continue to follow him in Oakland and Berkeley, including a red helicopter.

12
II.

DISCUSSION

13
14
15
16
17

A.

Consent to Jurisdiction of a Magistrate Judge
On October 8, 2015, Plaintiff filed consent to proceed before a magistrate judge under 28

U.S.C. §636(c), but filed a declination several weeks later. [Docket Nos. 5 and 11.]
A party to a federal civil case has, subject to some exceptions, a constitutional right to

18

proceed before an Article III judge. Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir. 1993); Pacemaker

19

Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 541 (9th Cir. 1984) (en

20

banc), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). The entitlement to an

21

Article III adjudicator is “a personal right” and thus ordinarily “subject to waiver,” and the court

22

has never held that a litigant who has the right to an Article III court may not waive that right

23

through his consent. Wellness Int'l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1944, 1947 (2015)

24

citing Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986). This right can be

25

waived, allowing parties to consent to trial before a magistrate judge. Dixon at 479-480;

26

Pacemaker at 542; 28 U.S.C. § 636(c)(1). That consent to magistrate judge jurisdiction can be

27

express or implied, based on “actions rather than words.” Roell v. Withrow, 538 U.S. 580, 589

28

(2003). Once a civil case is referred to a magistrate judge under section 636(c), the reference can
2

1

be withdrawn only by the court, and only “for good cause shown on its own motion, or under

2

extraordinary circumstances shown by any party.” Dixon at 480 (quoting Fellman v. Fireman's

3

Fund Ins. Co., 735 F.2d 55, 58 (2d Cir.1984)); 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(b). There is

4

no absolute right, in a civil case, to withdraw consent to trial and other proceedings before a

5

magistrate judge. Dixon at 480. Here, Plaintiff states that he “did not understand ... the very first

6

time I was filling out my complaint, regarding my case by consenting a judge. Magistrate or not.

7

I missed understanding that part.” [Docket No. 11 at 2.]

8
Plaintiff has filed his express consent to proceed before a magistrate judge. [Docket No.
9
5.] After the court issued an order dismissing his case with leave to amend, Plaintiff filed a
10
declination. Plaintiff has not shown good cause or presented evidence of extraordinary
11
United States District Court
Northern District of California

circumstances for the court to allow Plaintiff to withdraw his consent to magistrate judge
12
jurisdiction. Therefore, Plaintiff's October 30, 2015 declination of magistrate judge jurisdiction
13
will be disregarded. Defendant has not been served, and therefore is not a party to the suit
14
pursuant to 28 U.S.C. § 636(c). See Third World Media, LLC v. Does 1-1568, No. 10-04470-LB,
15
2011 WL 4344160, at *3 (N.D. Cal. Sept. 15, 2011). The undersigned may exercise jurisdiction to
16
conduct all proceedings in this matter, including the entry of judgment.
17
18

B.

Review of Complaint

19

In reviewing an application to proceed in forma pauperis, courts may dismiss a case sua

20

sponte if the party applying for in forma pauperis status files a frivolous action or fails to state a

21

claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). To make the determination

22

under 28 U.S.C. § 1915(e)(2)(B), courts assess whether there is an arguable factual and legal basis

23

for the asserted wrong, “however inartfully pleaded.” Franklin v. Murphy, 745 F.2d 1221, 1227-

24

28 (9th Cir. 1984). Courts have the authority to dismiss complaints founded on “wholly fanciful”

25

factual allegations for lack of subject matter jurisdiction. Id. at 1228. A court can also dismiss a

26

complaint where it is based solely on conclusory statements, naked assertions without any factual

27

basis, or allegations that are not plausible on their face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78

28

(2009); see also Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam).
3

1

Although pro se pleadings are liberally construed and held to a less stringent standard than

2

those drafted by lawyers, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or

3

portion thereof, should be dismissed for failure to state a claim if it fails to set forth “enough facts

4

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

5

554 (2007); see also Fed. R. Civ. P. 12(b)(6). “[A] district court should not dismiss a pro se

6

complaint without leave to amend unless it is absolutely clear that the deficiencies of the

7

complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

8

2012) (quotations omitted).
Plaintiff’s amended complaint, titled “statement of experiences in Honolulu,” adds

10

additional facts that were not in his initial complaint. However, the amended complaint fails to set

11
United States District Court
Northern District of California

9

forth facts to state a claim for relief that is plausible on its face. The Plaintiff names the City of

12

Honolulu as the Defendant, but does not explain how the City of Honolulu violated his rights or

13

which rights were violated. Plaintiff describes an incident that occurred while he was in Hawaii

14

where he heard a woman named Joni screaming above his apartment and he believed that she was

15

being raped. After Plaintiff called the police they inquired where the screaming was coming from.

16

Plaintiff did not know and that the police departed without investigating. Plaintiff alleges that

17

after the incident when he heard Joni screaming “his life changed.” Amended Complaint [Docket

18

No. 12] at 2. After the incident with Joni, Plaintiff “felt that everywhere he went, people would

19

insult him and call him swear words....He was also insulted and called swear words by the bus

20

drivers. He noticed that unmarked police cars would follow him.” Id. Plaintiff also alleges that

21

he “notice[d] a blond guy who always wore black that would follow him” everywhere and that

22

“cars would drive by during the rains and drive through puddles to splash him.” Id. Plaintiff’s

23

complaint also includes allegations that his apartment manager did not return his security deposit,

24

that he got a ticket for jaywalking, and that an airline worker charged him an extra baggage fee at

25

the airport. Id. However, Plaintiff fails to provide facts that would support a cause of action and

26

the amended complaint fails to tie the allegations to the named Defendant, the City of Honolulu.

27

Plaintiff also alleges that he is being chased by a red helicopter and that the people inside

28

the helicopter are trying to kill him. He alleges that since he has left Honolulu, planes and
4

1

helicopters continue to follow him in Oakland and Berkeley, including a red helicopter. Id. In

2

sum, Plaintiff states no facts in support of a comprehensible cause of action under any statute, nor

3

does he provide any facts suggesting that this court has jurisdiction over his complaint.
Plaintiff’s amended complaint also does not state a basis for asserting for federal question

4
5

or diversity jurisdiction, and does not address the jurisdictional defects identified in the first order

6

of dismissal.

7

The court previously dismissed Plaintiff’s complaint with leave to amend. The amended

8

complaint fails to address the deficiencies noted in the court’s prior order and it does not appear

9

that the deficiencies can be cured by further amendment. [Docket No. 7.] The court therefore

10

dismisses the complaint without leave to amend.

11
United States District Court
Northern District of California

III.
12

CONCLUSION

For the reasons above, the court dismisses Plaintiff’s Amended Complaint without leave to

13
amend.
14
15
IT IS SO ORDERED.
16
Dated: November 20, 2015
17
18
19

______________________________________
DONNA M. RYU
United States Magistrate Judge

20
21
22
23
24
25
26
27
28
5