Niren v. Hernandez Cervantes et al

Filing 4

ORDER: (1) Granting 2 Motion to Proceed in Forma Pauperis; and (2) Dismissing Complaint without Prejudice. Plaintiff may file an Amended Complaint within thirty days of the date this Order is filed. Signed by Judge Roger T. Benitez on 1/15/2015.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LAWRENCE DAVID NIREN aka
THEODORE ROXFORD,

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Plaintiff,

vs.

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MARCO ANTONIO HERNANDEZ

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CERVANTES CASTRO,

CERVANTES~dNUUUASARA

CASE NO. 14-cv-2593-BEN (JLB)
ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

(2) DISMISSING COMPLAINT
[Docket No.2]

Defendants.

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Before this Court is a Motion to Proceed In Forma Pauperis, filed by Plaintiff

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Lawrence David Niren. (Docket No.2). For the reasons stated below, the Motion is

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GRANTED

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the action is DISMISSED without prejudice.
BACKGROUND 1

On October 31,2014, Plaintiff filed a complaint alleging intentional infliction

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of emotional distress. (Docket No.1). Plaintiff alleges that Defend~ts Marco

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Antonio Hem~dez Cerv~tes ~d Maria Sara Cerv~tes Castro "knowingly ~d

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intentionally" caused Plaintiff ~d his family to suffer by Defe~dant's "lies, cruelty,

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tThe following background is drawn from the allegations of Mr. Niren's
Complaint. The Court is not making ~y factual findings, but rather only summarizing
28 the relev~t facts alleged by Mr. Niren for purposes of evaluating his Motion to
Proceed IFP.
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14cv2593

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fals~-,sta,tements

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and deceit." (Compl. ~ 15). Plaintiff contends Defendants madt!

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against him, and knew that doing so would result in Plaintiff go~g.to jail. (Compl.

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Plaintiff frequently visits his ex-wife and son in R-osarito, Mexico. (Compl.

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dogs nearby. (Compl. ~ 2). Sometime in April or May 2014, a stranger approached

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Plaintiffs ex-wife's house complaining that he was bitten by a dog that Plaintiff

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fed. (Compl. ~ 4). The stranger was accompanied by Defendants, Marco Antonio

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Hernandez Cervantes and Maria Sara Cervantes Castro. (Compl.

2, 16). During his visits, Plaintiff feeds his ex-wife's dog and any other stray

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4,24-25). The

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stranger and Defendants threatened to call the police unless Plaintiff paid the

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stranger some money. (Compl. ~~ 4,6). Plaintiff refused to pay any money, and.

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eventually the three left. (Compl.

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8, 30).

The following day, the stranger and Defendants returned to Plaintiffs ex­
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wife's house with four men claiming to be policemen. (Compl.

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Plaintiff asked to see their identification, the four men refused. (Compl. ~ 29).

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When the four men asked Plaintiff for his identification and passport, Plaintiff

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28). When

29). Again, the group demanded Plaintiff pay the stranger some

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money, or they would have Plaintiff arrested. (Compl. ~ 30). After a while,

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everyone parted ways. (Compl. ~ 31).

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On October 4,2014, Plaintiff was arrested in front of his ex-wife's house in
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9, 33). Plaintiff was taken to a jail and then to a

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Rosarito, Mexico. (Compl.

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courthouse in Rosarito, where he was told of the charge against him. (Compl.

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The stranger and Defendants alleged Plaintiff owned four pitbulls who attacked the

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stranger, and demanded compensation. (Compl.

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court told Plaintiff to either pay 40,000 pesos (3,100 U.S. dollars) or go to prison

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and admit that he was guilty. (Compl. ~~ 11,36). "When [P]laintiffheard this from

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the [c]ourt, he was shocked and mortified ... and he started to fear for his life ...."

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(Compl.

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10). Plaintiff alleges that the

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12). When the Court ordered the police to take p'lain~iff'to jFlil, Plaintiff
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Plaintiff did not pay the fine, so he was taken to jailnin rijiianJl~~¥e;xico.
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felt "fear, grief, anger, horror, shame, nausea, humiliation and.sh~k.~~~tCoQ)PI. ~~
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41-42). According to Plaintiff, he vomited in the van on the way to jail. (CompI.

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43). While in jail, Plaintiff claims that he was placed in a cell so crowded that he

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had to stand the whole night through. (Compl. ~~ 45-46). Plaintiff remained in

7 jail-what he calls "a living hell"-for two weeks, until his ex-wife gathered

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enough money to pay the fine or bail amount. (CompI. ~~ 12-13). On October 17,

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2014, Plaintiff was released. (CompI. ~ 52). By the time Plaintiffwas released,

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Plaintiff alleges he had already endured unbearable conditions, "which [P]laintiff is

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not ready to talk about." (Compl. ~ 51).

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On October 24,2014, Plaintiff claims he went to court in Rosarito and

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discovered that an investigation revealed that Plaintiff ''was going to be found

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innocent." (CompI. ~ 54).

DISCUSSION

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I. Motion to Proceed IFP
Under 28 U.S.C. § 1915(a)(1),
any court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding ... without
p~~payment of fees or security therefor by a person wlio submits an
aftfdavit that includes a statement of ali assefs such [person]
p'ossesses that the person is unable to pay such fees or give security
therefor.
Plaintiff states that he is not employed and has not been employed since
August 2011. (Mot. at 2). Plaintiffs only source of income comes from welfare
benefits. (Id.) Plaintiff owns no real estate or vehicles, and has approximately
~ixteen

dollars to his name. (Id. at 2-3). Plaintiffs Motion to Proceed In Forma

Pauperis is therefore GRANTED.

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II. Merits of the Complaint

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(a) Legal Standard

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Under section 1915(e) of title 28 of the United States Cope,'ihe',C1'Urt,must
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sua sponte dismiss in forma pauperis ("IFP") complaints; or any portions thereof,

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which are frivolous, malicious, fail to state a claim, or which seek damages from

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defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.

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2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)). "[T]he provisions of28

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U.S.C. § 1915(e)(2)(B) are not limited to prisoners." Calhoun v. Stahl, 254 F.3d

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845, 845 (9th Cir. 2001).

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Every complaint must contain "a short and plain statement of the claim

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showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed

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factual allegations are not required, but "[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice." Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.~ ..

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544, 555 (2007)). "When there are well-pleaded factual allegations, a court should

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assume their veracity, and then determine whether they plausibly give rise to an

17 entitlement to relief." Id. at 679. "Determining whether a complaint states a
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plausible claim for relief [is] ... a context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense." Id. The "mere

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possibility of misconduct" falls short of meeting this plausibility standard. Id.; see

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also Moss v. Us. Secret Serv., 572 F.3d 962,969 (9th Cir. 2009).

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While a plaintiff s factual allegations are taken as true, courts "are not

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required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572

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F.3d 677,681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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Irideed, while courts "have an obligation where the petitioner is pro se, particularly

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in civil rights cases, to construe the pleadings liberally and to afford the petitioner

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the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338,342 & n.7 (9th Cir. 2010)

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(citing Bretz v. Kelman, 773 F .2d 1026, 1027 n.l (9th Cir. 1985)), it may not
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14cv2593

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"supply essential elements of claims that were not initially,~pledt:!IY~Y~~:~B9ardbf

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Regents ofthe University ofAlaska, 673 F.2d 266,268 (9th Cir.:~~922)1

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(b) Choice of Law
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The Court's subject matter jurisdiction over this case is based upon diversity·

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jurisdiction under 28 U.S.C. § 1332(a).2 Under Erie R.R. Co. v. Tompkins, 304 U.S.

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64 (1938), a federal court sitting in diversity jurisdiction applies state substantive

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law and federal procedural law . "In a diversity case, a federal court must apply the

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choice of law rules of the state in which the action was filed." Sims Snowboards,

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Inc. v. Kelly, 863 F.2d 643, 645 (9th Cir. 1988).

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California uses the "governmental interest approach" to determine which law

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applies to the issue at hand. Hurtado v. Superior Court, 11 Cal. 3d 574, 579 (19.74)

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(citing Reich v. Purcell, 67 Cal. 2d 551 (1967». Under this approach, the forum

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"must search to find the proper law to apply based upon the interests of the litigants

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and the involved states." Reich, 67 Cal. 2d at 553. "When one of two states related

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to a case has a legitimate interest in the application of its law and policy and the

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other has none, there is no real problem; clearly the law of the interested state

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should be applied." Hurtado, 11 Cal. 3d at 580.

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Here, Plaintiff claims he suffered emotional distress from actions that took

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place in Mexico. Defendants contacted Plaintiff at his usual place of abode during

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his weekly visits to Mexico. Plaintiff was arrested in Mexico weeks later. Plaintiff

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was brought before ajudge in Mexico. Finally, Plaintiff was ordered to serve time

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in jail in Tijuana, Mexico. Any and all the harm Plaintiff suffered were a result of

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conduct that occurred in Mexico. This case has no connection to California except

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that Plaintiff chose this as the forum. Thus, California has no legitimate interest in

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applying its laws to this action. See Hernandez v. Burger, 102 Cal. App. 3d 795,

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799 (4th Dist. 1980) (finding that application of Mexican law was appropriate

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2Plaintiff indicates that Defendants are citizens of Mexico and demands
compensatory damages in the amount of$100,000. (Compl., 22).
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14cv2593

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where plaintiff was a resident of Mexico, the car accident ecctirtedjn~Me?Cico, ahd

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the only connection to California was that defendants were resi4enls QfCalifom.ia
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and it was the chosen forum).

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This Court therefore finds the laws of Mexico should necessarily and

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(cl Intentional Infliction of Emotional Distress Claim

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The Court finds Plaintiffs Complaint requires sua sponte dismissal pursuant·

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to 28 U.S.C. § 1915(e)(2)(B)(ii) to the extent it seeks relief under a claim of

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intentional infliction of emotional distress against Defendants. Mexico does not

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have a cause of action for intentional infliction of emotional distress. See generally,

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C6digo Civil Federal [CC] [Federal Civil Code] arts. 1910-34, as amended, Diar.io

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Oficial de la Federaci6n [DO], 1950 (Mex.); Jorge A. Vargas, Mexican Law &

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Personal Injury Cases, in Mexican Law for the American Lawyer 379-426 (2009).

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Plaintiff has not presented any evidence that it does, nor does he state any facts t~at

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might support a similar claim under Mexican law. Plaintiffs Complaint is deficient

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in that it fails to state a claim upon which relief can be granted. Thus, the

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Complaint is DISMISSED without prejudice.

CONCLUSION

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Plaintiffs Motion to Proceed In Forma Pauperis is GRANTED. The Court

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sua sponte DISMISSES the action without prejudice and with leave to amend.

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Plaintiff may file an Amended Complaint within thirty days of the date this Order

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is filed. The Amended Complaint must cure the deficiencies discussed above. The

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Clerk may close the case.

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IT IS SO ORDERED.

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DATED: January~ 2015
United States District Judge

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