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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHANITA M. FREEMAN,
Plaintiff,

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Case No.: 16cv3082-MMA (BGS)

v.

ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS;

RENEE T. FRANCIS,

[Doc. No. 2]

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Defendant.

SUA SPONTE DISMISSING CIVIL
ACTION FOR FAILING TO STATE
A CLAIM PURSUANT TO 28 U.S.C.
§ 1915(e)(2); AND

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DENYING MOTION FOR
APPOINTMENT OF COUNSEL

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[Doc. No. 3]

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Plaintiff Chanita M. Freeman, proceeding pro se, has filed the instant action

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against Defendant Renee T. Francis. See Doc. No. 1. Plaintiff also moves for leave to

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proceed in this action in forma pauperis (“IFP”), and moves for appointment of counsel.

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See Doc. Nos. 2, 3.

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//
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16cv3082-MMA (BGS)

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MOTION FOR LEAVE TO PROCEED IFP
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. §

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1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in

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forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

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1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v.

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E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). Plaintiff’s IFP application

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details her net monthly income and her monthly expenses. Based thereon, the Court

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concludes that Plaintiff should be allowed to proceed IFP pursuant to 28 U.S.C. §

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1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Plaintiff’s

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submission demonstrates that she lacks the financial resources to pay the costs of

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commencing this action. Accordingly, the Court GRANTS Plaintiff’s motion to proceed

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IFP. See Doc. No. 2.

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SCREENING PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)

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1.

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When a plaintiff proceeds IFP, the complaint is subject to mandatory screening and

Legal Standard

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the Court must order the sua sponte dismissal of any case it finds “frivolous, malicious,

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failing to state a claim upon which relief may be granted, or seeking monetary relief from

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a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254

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F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not

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limited to prisoners.”). “[W]hen determining whether a complaint states a claim, a court

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must accept as true all allegations of material fact and must construe those facts in the

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light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

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2000). In addition, the Court has a duty to liberally construe a pro se plaintiff’s

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pleadings. See id. In giving liberal interpretation to a pro se complaint, however, the

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16cv3082-MMA (BGS)

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court may not “supply essential elements of claims that were not initially pled.” See Ivey

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v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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A complaint should be dismissed for failure to state a claim if, taking all well-

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pleaded factual allegations as true, it does not contain “enough facts to state a claim to

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relief that is plausible on its face.” See Coto Settlement v. Eisenberg, 593 F.3d 1031,

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1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010)

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(citation omitted).

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2.

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This action arises out of a custody dispute. Plaintiff alleges causes of action for

Analysis

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perjury pursuant to California Penal Code section 118(a), interference with child custody

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pursuant to California Penal Code section 278.5, parental alienation, and slander and

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libel. Plaintiff requests monetary damages, that her son to be returned to her, and that

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Defendant be prosecuted for perjury, interference with child custody, and slander and

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libel. Essentially, Plaintiff alleges Defendant, who is her son’s stepmother, has interfered

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with and thwarted Plaintiff’s ability to see and parent her son, caused Plaintiff to be

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arrested for kidnapping her son, and has made perjurious and defamatory statements

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during court proceedings and otherwise.

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The Court lacks jurisdiction over this action. “Federal courts are courts of limited

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jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As

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such, “[a] federal court is presumed to lack jurisdiction in a particular case unless the

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contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221,

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1225 (9th Cir. 1989) (citation omitted). Federal Rule of Civil Procedure 12(h)(3) permits

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a district court to dismiss a complaint sua sponte for lack of subject matter jurisdiction.

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Fed. R. Civ. P. 12(h)(3); see Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d

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982, 985 (9th Cir. 2003). Without subject matter jurisdiction, a federal court is without
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“power” to hear or adjudicate a claim. See Leeson v. Transamerica Disability Income

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Plan, 671 F.3d 969, 975 (9th Cir. 2012) (citing Steel Co. v. Citizens for a Better

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Environment, 523 U.S. 83, 89 (1998)); Kokkonen, 511 U.S. at 377. Generally, subject

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matter jurisdiction is based on the presence of a federal question, see 28 U.S.C. § 1331,

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or on complete diversity of citizenship between the parties, see 28 U.S.C. § 1332. A

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federal question is one “arising under the Constitution, laws, or treaties of the United

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States.” 28 U.S.C. § 1331. “[F]ederal jurisdiction exists only when a federal question is

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presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v.

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Williams, 482 U.S. 386, 392 (1987). Diversity jurisdiction exists where a plaintiff has

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pled (1) the amount in controversy exceeds $75,000, and (2) no plaintiff is a citizen of the

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same state as any defendant. See 28 U.S.C. § 1332.

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Plaintiff does not assert any causes of action arising under federal law to invoke

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federal question jurisdiction. Further, “the ‘domestic relations exception’ prevents

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federal courts from exercising jurisdiction in child custody matters.” See Pronesti v.

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Dep’t of Family Servs., No. 215CV01994JADPAL, 2017 WL 976629, at *2 (D. Nev. Jan.

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25, 2017), report and recommendation adopted, No. 215CV01994JADPAL, 2017 WL

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968991 (D. Nev. Mar. 13, 2017) (citing Ankenbrandt v. Richards, 504 U.S. 689 (1992));

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“The subject matter of domestic relations and particularly child custody problems is

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generally considered a state law matter.” Id.; see also Peterson v. Babbitt, 708 F.2d 465,

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466 (9th Cir. 1983) (per curiam) (stating that since 1890, “federal courts have uniformly

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held that they should not adjudicate cases involving domestic relations”); Santos v. Los

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Angeles Cty. Dep’t of Children & Family Servs., 200 F. App’x 681, 683 (9th Cir. 2006).

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Thus, the Court does not have jurisdiction over any of Plaintiff’s claims regarding

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custody or visitation rights.

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Regarding diversity jurisdiction, while Plaintiff and Defendant appear to be

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residents of different states, Plaintiff provides no basis for the Court to conclude that her

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damages would exceed $75,000. For example, in describing her damages, Plaintiff

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alleges that “due to [Defendant’s] egregious antics of having me arrested,” Plaintiff’s
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16cv3082-MMA (BGS)

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family had to take on the responsibility of taking care of Plaintiff’s other children while

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Plaintiff was incarcerated. See Doc. No. 1. Plaintiff alleges her family also incurred

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damages in hiring an attorney “to fight to get [her] out of jail,” and helping her with other

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financial obligations such as her mortgage. See Doc. No. 1. Thus, Plaintiff does not

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allege that she suffered these damages—she alleges her family did. See Powers v. Ohio,

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499 U.S. 400, 410 (1991) (“In the ordinary course, a litigant must assert his or her own

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legal rights and interests, and cannot rest a claim to relief on the legal rights or interests

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of third parties.”). Also, Plaintiff does not allege she suffered any monetary damages as

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a result of any allegedly defamatory statements. Thus, the Court does not have

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jurisdiction over any other remaining claims. Based on the foregoing, the Court lacks

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jurisdiction over this entire action.

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Further, even were the Court to consider the sufficiency of Plaintiff’s allegations,

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the Court would be required to dismiss this action. For example, regarding Plaintiff’s

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request that Defendant be prosecuted under various sections of the California penal code,

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an individual may not bring criminal charges against another individual by filing a civil

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complaint in this Court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

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Also, the only non-conclusory allegations that Plaintiff provides in support of her

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claims for slander and libel indicate that the statements forming the basis for her claims

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were made during judicial proceedings. However, there is an absolute privilege under

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California law for participants in litigation and other proceedings, which provides

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participants with broad protection, including protection from liability for defamation

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claims. See Beroiz v. Wahl, 84 Cal. App. 4th 485, 492 (2000); see Cal. Civ. Code § 47.

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“Generally, this privilege ‘applies to any communication (1) made in judicial or quasi-

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judicial proceedings; (2) by litigants or other participants authorized by law; (3) to

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achieve the objects of the litigation; and (4) that have some connection or logical relation

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to the action.’” Id. (quoting Silberg v. Anderson, 50 Cal. 3d 205, 212, 266 Cal.Rptr. 638,

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786 P.2d 365.) Typically, courts should not dismiss cases based on affirmative defenses,

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such as the litigation privilege for example, unless the elements of the defense are
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16cv3082-MMA (BGS)

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apparent on the face of the complaint. See Lifecare Mgmt. Servs., LLC v. Zenith Am.

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Sols., Inc., No. 3:15-CV-0307-RCJ-VPC, 2015 WL 7185459, at *3 (D. Nev. Nov. 13,

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2015). Here, the Complaint alleges Defendant made statements to the court during

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hearings in December 2014 and October 2015 regarding her relationship with her son,

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such as that Plaintiff was not involved in her son’s life, and did not pay child support.

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Accordingly, it appears on the face of the Complaint that the absolute privilege would bar

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Plaintiff’s defamation claims.

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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

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and without leave to amend. See Franklin v. Murphy, 245 F.2d 1221, 1228 n.9 (9th Cir.

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1984).

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CONCLUSION

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Based on the foregoing, the Court:

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1. GRANTS Plaintiff’s motion to proceed IFP;

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2. DISMISSES Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure

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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.

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DATE: April 18, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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