Boyer et al v. State of California Attorney General's Office et al

Filing 5

ORDER by Judge Yvonne Gonzalez Rogers granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion for Legal Counsel and Representation ; dismissing Complaint with Leave to Amend. Amended Pleadings due by 12/7/2017. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 11/7/2017)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 FLORENCE BOYER, S, A MINOR, 6 7 8 9 10 Northern District of California United States District Court 11 12 13 Plaintiffs, v. CALIFORNIA ATTORNEY GENERAL XAVIER BECERRA, ET AL., Defendants. Case No.: 4:17-cv-06063-YGR ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS ; DENYING MOTION FOR LEGAL COUNSEL AND REPRESENTATION; DISMISSING COMPLAINT WITH LEAVE TO AMEND Dkt. Nos. 3 & 4 The Court has received plaintiff’s Complaint, Application to Proceed in Forma Pauperis, and Motion for Legal Counsel and Representation, all filed on October 23, 2017. The Court may authorize that a plaintiff can proceed in a federal court action in forma 14 pauperis (“IFP”), meaning without prepayment of fees or security, if the plaintiff submits an 15 affidavit showing that he or she is unable to pay such fees or give security. 28 U.S.C. § 1915(a). 16 The court’s grant of plaintiff’s application to proceed IFP does not mean that the Court must permit 17 plaintiff to prosecute the claim under all circumstances. A court is under a continuing duty to 18 dismiss a case filed without payment of the filing fee whenever it determines that the action “(i) is 19 frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks 20 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)- 21 (iii). If the Court dismisses a case pursuant to section 1915(e)(2)(B), the plaintiff may still file the 22 same complaint by paying the filing fee. This is because the court’s section 1915(e)(2)(B) dismissal 23 is not on the merits, but an exercise of the court’s discretion under the IFP statute. Denton v. 24 Hernandez, 504 U.S. 25, 32 (1992). 25 To make the determination under 28 U.S.C. section 1915(e)(2)(B), courts assess whether 26 plaintiff states an arguable factual and legal basis for the asserted wrong, “however inartfully 27 pleaded.” Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th Cir. 1984). Courts have the authority to 28 dismiss complaints founded on “wholly fanciful” factual allegations for lack of subject matter 1 jurisdiction. Id. at 1228. A court can also dismiss a complaint where it is based solely on conclusory 2 statements, naked assertions without any factual basis, or allegations implausible on their face. 3 Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009); see also Erickson v. Pardus, 551 U.S. 89 (2007) (per 4 curiam). 5 Federal courts are courts of limited jurisdiction. They have no power to consider claims for 6 which they lack subject-matter jurisdiction. See Chen-Cheng Wang ex rel. United States v. FMC 7 Corp., 975 F.2d 1412, 1415 (9th Cir. 1992). While California superior courts are courts of general, 8 unlimited jurisdiction and can render enforceable judgments in practically any type of case, federal 9 courts can only adjudicate cases that the Constitution or Congress authorizes them to adjudicate. Northern District of California Cases where the federal court has jurisdiction are those where there is a diversity of citizenship 11 United States District Court 10 (where the parties are from different states), a federal question (arising under the Constitution, laws, 12 or treaties of the United States), or in which the United States is a party. See, e.g., Kokkonen v. 13 Guardian Life Insur. Co. of Am., 511 U.S. 375 (1994). Federal courts are presumptively without 14 jurisdiction over civil cases and the burden of establishing jurisdiction rests upon the party asserting 15 it. Id. at 377. If the Court determines that subject matter jurisdiction is lacking, the Court must 16 dismiss the case. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Fed. R. Civ. P. 17 12(h)(3). Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss an action that fails to 18 state a claim upon which relief may be granted. 19 In reviewing the complaint here, the Court is unable to discern a legally cognizable basis for 20 a claim over which the Court would have jurisdiction. Plaintiff Boyer alleges violations of Titles I 21 and II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., section 504 of the 22 Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Constitution of the State of California, against a 23 host of state and local actors and individuals based on her apparent dissatisfaction with the way in 24 which an April 2015 custody hearing was executed and the outcome of such hearing. Among the 25 various conclusory allegations made in the complaint are that: (1) “The State of California et al., 26 failed to inform Ms. Boyer of their policy to give preferential treatment to fathers, and that they were 27 acting out of financial motivation, to obtain professional fees and federal ‘access’ grants via The 28 Healthy Marriage and Responsible Fatherhood (HMRF) initiative”; and (2) “Because Defendants 2 1 regarded Florence Boyer as being a ‘mentally disordered person’ with false beliefs, Alienating and 2 ‘dangerous,’ having ‘PAS’ [Parental Alienation Syndrome] the court was biased against her 3 according to this sex-based stereotype.” (Dkt. No. 1 [Complaint] p. 17.)1 As a result of the latter, 4 Boyer further alleges that “Plaintiffs [i.e., Boyer and her son] could not fully and equally participate 5 in court proceedings.” (Id.) Boyer cites to various reports and studies in an attempt to substantiate 6 her claims of discrimination on the basis of her gender and disability status. (See, e.g., id. pp. 16, 7 19.) Ultimately, the essence of Boyer’s allegations is that “[t]he State of California and its agencies 8 are inaccessible to Plaintiff Florence Boyer.” (Id. p. 22.) 9 Boyer fails to connect her complaints about the custody hearing to any legal right of action Northern District of California against each of the named defendants. Boyer’s complaint further fails to set forth “a short and plain 11 United States District Court 10 statement of the claim showing that the pleader is entitled to relief” as required by Rule 8 of the 12 Federal Rules of Civil Procedure. Moreover, Boyer resorts to improper group pleading. See 13 Sebastian Brown Prods. LLC v. Muzooka, Inc., 143 F. Supp. 3d 1026, 1037 (N.D. Cal. 2015) (“[A] 14 complaint which lump[s] together . . . multiple defendants in one broad allegation fails to satisfy 15 [the] notice requirement of Rule 8(a)(2).”) (internal quotation marks omitted) (alterations in 16 original). Accordingly, plaintiff’s complaint is dismissed for failure to state cognizable claims. 17 “[A] district court should not dismiss a pro se complaint without leave to amend unless it is 18 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. 19 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quotations omitted). Therefore, the Court will permit 20 plaintiff an opportunity to amend to state a claim. 21 22 23 The Court also notes that Boyer identifies her minor son as a plaintiff. Boyer cannot represent her son as she is not an attorney nor has she been appointed guardian ad litem. Accordingly, the Court ORDERS as follows: 24 (1) Plaintiff’s Application to Proceed in forma pauperis is GRANTED. 25 (2) Plaintiff’s Motion for Legal Counsel and Representation is DENIED. United States v. 26 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986) (“There is normally . . . no 27 28 1 Because the paragraph numbering resumes at 1 in each section of the Complaint, this order cites to specific pages in the Complaint rather than to paragraphs. 3 1 constitutional right to counsel in a civil case.”). The Court may reconsider on its own 2 motion and request appointment of counsel later in the proceedings. 3 (3) Plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND. 4 (4) If plaintiff wishes to pursue this action, plaintiff must file an amended complaint no 5 6 later than December 7, 2017. (5) If plaintiff fails to amend, the case will be dismissed under Rule 41(b) for failure to 7 prosecute. Toyota Landscape Co., Inc. v. Building Material & Dump Truck Drivers 8 Local 420, 726 F.2d 525, 528 (9th Cir. 1984). 9 The Court advises plaintiff that a Handbook for Pro Se Litigants, which contains helpful Northern District of California information about proceeding without an attorney, is available in the Clerk’s office or through the 11 United States District Court 10 Court’s website, 12 The Court also advises plaintiff that additional assistance may be available by making an 13 appointment with the Legal Help Center. There is no fee for this service. To make an appointment 14 with the Legal Help Center in San Francisco, plaintiff may visit the San Francisco Courthouse, 15 located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, California, 94102, or 16 call 415/782-9000 (ext. 8657). To make an appointment with the Legal Help Center in Oakland, 17 plaintiff may visit the Oakland Courthouse, located at 1301 Clay Street, 4th Floor, Room 470S, 18 Oakland, California, 94612, or call 415/782-8982. The Help Center’s website is available at 19 20 This Order Terminates Docket Numbers 3 & 4. 21 IT IS SO ORDERED. 22 23 Dated: November 7, 2017 ________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 24 25 26 27 28 4

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