Freeman v. Francis

Filing 4

ORDER Granting Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis. Sua Sponte Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2); and Denying 3 Motion for Appointment of Counsel. Signed by Judge Michael M. Anello on 4/18/2017. (All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHANITA M. FREEMAN, Plaintiff, 12 13 Case No.: 16cv3082-MMA (BGS) v. ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; RENEE T. FRANCIS, [Doc. No. 2] 14 15 16 Defendant. SUA SPONTE DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2); AND 17 18 19 DENYING MOTION FOR APPOINTMENT OF COUNSEL 20 21 [Doc. No. 3] 22 23 Plaintiff Chanita M. Freeman, proceeding pro se, has filed the instant action 24 25 against Defendant Renee T. Francis. See Doc. No. 1. Plaintiff also moves for leave to 26 proceed in this action in forma pauperis (“IFP”), and moves for appointment of counsel. 27 See Doc. Nos. 2, 3. 28 // 1 16cv3082-MMA (BGS) 1 2 MOTION FOR LEAVE TO PROCEED IFP All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. § 6 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in 7 forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 8 1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v. 9 E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). Plaintiff’s IFP application 10 details her net monthly income and her monthly expenses. Based thereon, the Court 11 concludes that Plaintiff should be allowed to proceed IFP pursuant to 28 U.S.C. § 12 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Plaintiff’s 13 submission demonstrates that she lacks the financial resources to pay the costs of 14 commencing this action. Accordingly, the Court GRANTS Plaintiff’s motion to proceed 15 IFP. See Doc. No. 2. 16 SCREENING PURSUANT TO 28 U.S.C. § 1915(E)(2)(B) 17 1. 18 When a plaintiff proceeds IFP, the complaint is subject to mandatory screening and Legal Standard 19 the Court must order the sua sponte dismissal of any case it finds “frivolous, malicious, 20 failing to state a claim upon which relief may be granted, or seeking monetary relief from 21 a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 22 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not 23 limited to prisoners.”). “[W]hen determining whether a complaint states a claim, a court 24 must accept as true all allegations of material fact and must construe those facts in the 25 light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 26 2000). In addition, the Court has a duty to liberally construe a pro se plaintiff’s 27 pleadings. See id. In giving liberal interpretation to a pro se complaint, however, the 28 2 16cv3082-MMA (BGS) 1 court may not “supply essential elements of claims that were not initially pled.” See Ivey 2 v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 A complaint should be dismissed for failure to state a claim if, taking all well- 4 pleaded factual allegations as true, it does not contain “enough facts to state a claim to 5 relief that is plausible on its face.” See Coto Settlement v. Eisenberg, 593 F.3d 1031, 6 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). “A claim 7 has facial plausibility when the plaintiff pleads factual content that allows the court to 8 draw the reasonable inference that the defendant is liable for the misconduct alleged.” 9 Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) 10 (citation omitted). 11 2. 12 This action arises out of a custody dispute. Plaintiff alleges causes of action for Analysis 13 perjury pursuant to California Penal Code section 118(a), interference with child custody 14 pursuant to California Penal Code section 278.5, parental alienation, and slander and 15 libel. Plaintiff requests monetary damages, that her son to be returned to her, and that 16 Defendant be prosecuted for perjury, interference with child custody, and slander and 17 libel. Essentially, Plaintiff alleges Defendant, who is her son’s stepmother, has interfered 18 with and thwarted Plaintiff’s ability to see and parent her son, caused Plaintiff to be 19 arrested for kidnapping her son, and has made perjurious and defamatory statements 20 during court proceedings and otherwise. 21 The Court lacks jurisdiction over this action. “Federal courts are courts of limited 22 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As 23 such, “[a] federal court is presumed to lack jurisdiction in a particular case unless the 24 contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 25 1225 (9th Cir. 1989) (citation omitted). Federal Rule of Civil Procedure 12(h)(3) permits 26 a district court to dismiss a complaint sua sponte for lack of subject matter jurisdiction. 27 Fed. R. Civ. P. 12(h)(3); see Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 28 982, 985 (9th Cir. 2003). Without subject matter jurisdiction, a federal court is without 3 16cv3082-MMA (BGS) 1 “power” to hear or adjudicate a claim. See Leeson v. Transamerica Disability Income 2 Plan, 671 F.3d 969, 975 (9th Cir. 2012) (citing Steel Co. v. Citizens for a Better 3 Environment, 523 U.S. 83, 89 (1998)); Kokkonen, 511 U.S. at 377. Generally, subject 4 matter jurisdiction is based on the presence of a federal question, see 28 U.S.C. § 1331, 5 or on complete diversity of citizenship between the parties, see 28 U.S.C. § 1332. A 6 federal question is one “arising under the Constitution, laws, or treaties of the United 7 States.” 28 U.S.C. § 1331. “[F]ederal jurisdiction exists only when a federal question is 8 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. 9 Williams, 482 U.S. 386, 392 (1987). Diversity jurisdiction exists where a plaintiff has 10 pled (1) the amount in controversy exceeds $75,000, and (2) no plaintiff is a citizen of the 11 same state as any defendant. See 28 U.S.C. § 1332. 12 Plaintiff does not assert any causes of action arising under federal law to invoke 13 federal question jurisdiction. Further, “the ‘domestic relations exception’ prevents 14 federal courts from exercising jurisdiction in child custody matters.” See Pronesti v. 15 Dep’t of Family Servs., No. 215CV01994JADPAL, 2017 WL 976629, at *2 (D. Nev. Jan. 16 25, 2017), report and recommendation adopted, No. 215CV01994JADPAL, 2017 WL 17 968991 (D. Nev. Mar. 13, 2017) (citing Ankenbrandt v. Richards, 504 U.S. 689 (1992)); 18 “The subject matter of domestic relations and particularly child custody problems is 19 generally considered a state law matter.” Id.; see also Peterson v. Babbitt, 708 F.2d 465, 20 466 (9th Cir. 1983) (per curiam) (stating that since 1890, “federal courts have uniformly 21 held that they should not adjudicate cases involving domestic relations”); Santos v. Los 22 Angeles Cty. Dep’t of Children & Family Servs., 200 F. App’x 681, 683 (9th Cir. 2006). 23 Thus, the Court does not have jurisdiction over any of Plaintiff’s claims regarding 24 custody or visitation rights. 25 Regarding diversity jurisdiction, while Plaintiff and Defendant appear to be 26 residents of different states, Plaintiff provides no basis for the Court to conclude that her 27 damages would exceed $75,000. For example, in describing her damages, Plaintiff 28 alleges that “due to [Defendant’s] egregious antics of having me arrested,” Plaintiff’s 4 16cv3082-MMA (BGS) 1 family had to take on the responsibility of taking care of Plaintiff’s other children while 2 Plaintiff was incarcerated. See Doc. No. 1. Plaintiff alleges her family also incurred 3 damages in hiring an attorney “to fight to get [her] out of jail,” and helping her with other 4 financial obligations such as her mortgage. See Doc. No. 1. Thus, Plaintiff does not 5 allege that she suffered these damages—she alleges her family did. See Powers v. Ohio, 6 499 U.S. 400, 410 (1991) (“In the ordinary course, a litigant must assert his or her own 7 legal rights and interests, and cannot rest a claim to relief on the legal rights or interests 8 of third parties.”). Also, Plaintiff does not allege she suffered any monetary damages as 9 a result of any allegedly defamatory statements. Thus, the Court does not have 10 jurisdiction over any other remaining claims. Based on the foregoing, the Court lacks 11 jurisdiction over this entire action. 12 Further, even were the Court to consider the sufficiency of Plaintiff’s allegations, 13 the Court would be required to dismiss this action. For example, regarding Plaintiff’s 14 request that Defendant be prosecuted under various sections of the California penal code, 15 an individual may not bring criminal charges against another individual by filing a civil 16 complaint in this Court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 17 Also, the only non-conclusory allegations that Plaintiff provides in support of her 18 claims for slander and libel indicate that the statements forming the basis for her claims 19 were made during judicial proceedings. However, there is an absolute privilege under 20 California law for participants in litigation and other proceedings, which provides 21 participants with broad protection, including protection from liability for defamation 22 claims. See Beroiz v. Wahl, 84 Cal. App. 4th 485, 492 (2000); see Cal. Civ. Code § 47. 23 “Generally, this privilege ‘applies to any communication (1) made in judicial or quasi- 24 judicial proceedings; (2) by litigants or other participants authorized by law; (3) to 25 achieve the objects of the litigation; and (4) that have some connection or logical relation 26 to the action.’” Id. (quoting Silberg v. Anderson, 50 Cal. 3d 205, 212, 266 Cal.Rptr. 638, 27 786 P.2d 365.) Typically, courts should not dismiss cases based on affirmative defenses, 28 such as the litigation privilege for example, unless the elements of the defense are 5 16cv3082-MMA (BGS) 1 apparent on the face of the complaint. See Lifecare Mgmt. Servs., LLC v. Zenith Am. 2 Sols., Inc., No. 3:15-CV-0307-RCJ-VPC, 2015 WL 7185459, at *3 (D. Nev. Nov. 13, 3 2015). Here, the Complaint alleges Defendant made statements to the court during 4 hearings in December 2014 and October 2015 regarding her relationship with her son, 5 such as that Plaintiff was not involved in her son’s life, and did not pay child support. 6 Accordingly, it appears on the face of the Complaint that the absolute privilege would bar 7 Plaintiff’s defamation claims. 8 9 Regardless, the Court lacks jurisdiction over this action and must dismiss it on that basis alone. Accordingly, the Court DISMISSES Plaintiff’s action without prejudice 10 and without leave to amend. See Franklin v. Murphy, 245 F.2d 1221, 1228 n.9 (9th Cir. 11 1984). 12 CONCLUSION 13 Based on the foregoing, the Court: 14 1. GRANTS Plaintiff’s motion to proceed IFP; 15 2. DISMISSES Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 16 17 18 19 12(h)(3) and 28 U.S.C. § 1915(e)(2)(B) as set forth above; 3. DENIES Plaintiff’s motion for appointment of counsel as moot and without prejudice. The Court instructs the Clerk of Court to close this action. IT IS SO ORDERED. 20 21 22 DATE: April 18, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 23 24 25 26 27 28 6 16cv3082-MMA (BGS)

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