Lopez v. Office of the Secretary of State et al

Filing 23


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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 8 RICARDO JOSE CALDERON LOPEZ, ET AL., Plaintiffs, 9 v. 10 United States District Court Northern District of California 11 12 OFFICE OF THE SECRETARY OF STATE, et al., Case No. 17-cv-02886-BLF ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND GRANTING MOTION FOR PERMISSION FOR ELECTRONIC CASE FILING Defendants. 13 14 Plaintiffs bring this suit against Defendants, alleging that Defendants violated their 15 constitutional rights among other claims. See Compl., ECF 8; Am. Compl. 2-3, ECF 19. 16 Plaintiffs also seek leave to proceed in forma pauperis (“IFP”) with this action. The Court has 17 previously dismissed the initially-filed complaint and the application for IFP with leave to amend. 18 ECF 12, 14. Now Plaintiffs have filed an amended complaint and renewed application to proceed 19 IFP. ECF 15, 19, 21. 20 “A district court may deny leave to proceed in forma pauperis . . . if it appears from the 21 face of the proposed complaint that the action is frivolous or without merit.” Tripati v. First Nat. 22 Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). Even though the complaint has been 23 amended, the deficiencies set forth in the Court’s prior order have not been remedied. 24 Specifically, the complaint states that Defendants violated Plaintiffs’ civil rights and that they 25 engaged in antitrust conduct but these and other conclusory allegations are not adequately 26 supported. Am. Compl. 3-4. For example, according to the amended complaint, Plaintiffs 27 Starlight Entertainment and Starlight Music “do not owe State franchise or income tax.” Id. at 4, 28 8-9, 18. However, there are no factual allegations setting forth how the individuals “servicing the 1 State of California government agencies-Franchise Tax Board” and the Office of the Secretary of 2 State have deprived Plaintiffs of their constitutional rights. The factual allegations are similarly 3 inadequate on how Defendants engaged in an antitrust conspiracy against Plaintiffs. Such factual 4 allegations are inadequate to provide a basis for a viable claim for relief. 5 Furthermore, suits against state agencies, such as the California Franchise Tax Board, and 6 the Office of the Secretary of the State of California, as well as state officials in their official 7 capacities, are barred by the Eleventh Amendment. Hibbs v. Dep’t of Human Res., 273 F.3d 844, 8 850 (9th Cir. 2001) (citations omitted). As noted in the Court’s prior order, such suits cannot 9 proceed unless the immunity has been specifically abrogated by federal statute or that the state has waived its immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). To the extent 11 United States District Court Northern District of California 10 Plaintiffs are asserting claims pursuant to 42 U.S.C. § 1983, state agencies and state officials 12 acting in their official capacities are also not “persons” against whom a claim for money damages 13 may be asserted. Id. The Court notes that the complaint cites to authorities, purportedly stating 14 that qualified immunity could be overcome by a violation of the Constitution. E.g., Am. Compl. 15 13. However, not only is it unclear how the cited authorities are applicable to the instant case, but 16 the factual allegations also fail to show how Defendants’ immunity was overcome. 17 Lastly, Plaintiffs filed an “Amended Request” and a memorandum in support of the IFP 18 application to have corporate plaintiffs, Starlight Entertainment Enterprises and Starlight Music 19 Management, Inc., proceed pro se in this suit. ECF 20, 22. However, authorities in the Ninth 20 Circuit and this District prohibit corporations from proceeding pro se and Plaintiffs’ novel theory 21 with regard to “reverse pierc[ing] . . . the corporate veil” remains unpersuasive to this Court. ECF 22 20 at 4; ECF 22 at 2; see In re Bigelow, 179 F.3d 1164, 1165 (9th Cir. 1999). 23 24 25 Plaintiffs have also moved for permission for electronic case filing. ECF 4. For good cause shown, the Court GRANTS the motion for permission for electronic case filing. For the reasons discussed above and in the Court’s prior order, the amended complaint 26 remains deficient. The case is thus frivolous and the application to proceed IFP is denied on this 27 basis. Tripati, 821 F.2d at 1370. Plaintiffs therefore must pay the filing fee of $400.00 if they 28 wish to proceed with this case. If Plaintiffs do not pay the filing fee on or before September 15, 2 1 2017, the case will be dismissed without prejudice under Federal Rule of Civil Procedure 41(b). 2 See Fed. R. Civ. P. 41(b) (providing for dismissal if plaintiff fails to prosecute action or to comply 3 with the Federal Rules of Civil Procedure or a court order); Madden v. Badgett, 122 F.3d 1072 4 (Table), 1997 WL 556361, at *1 (9th Cir. Aug. 29, 1997) (affirming dismissal of action under 5 Rule 41(b) where plaintiff failed to pay the filing fee or to submit prison trust account statement); 6 Soto v. Hayes, No. 94-0098-VRW, 1995 WL 150572, at *1 (N.D. Cal. Mar. 20, 1995) (dismissing 7 action under Rule 41(b) for failing to pay the filing fee). 8 9 IT IS SO ORDERED. 10 United States District Court Northern District of California 11 12 13 Dated: August 14, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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