Emert v. California Department of Child Support Services et al

Filing 5

ORDER Denying Application for Leave to Proceed In Forma Pauperis and Dismissing Case [ECF Nos. 1 - 2 ]. Signed by Judge Cathy Ann Bencivengo on 11/26/2024. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT EMERT,

Case No.: 3:24-cv-02072-CAB-JLB
Plaintiff,

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v.

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CALIFORNIA DEPARTMENT OF
CHILD SUPPORT SERVICES, et al.,

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Defendants.

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ORDER DENYING APPLICATION
FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND
DISMISSING CASE
[ECF Nos. 1–2]

On Nov. 4, 2024, Plaintiff, proceeding pro se, filed a “notice of removal”1 of his
divorce judgment from the Superior Court of California. [ECF No. 1.] Plaintiff did not
prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time of filing; instead, he
filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). [ECF
No. 2.] For the reasons outlined below, the Court DENIES Plaintiff’s IFP motion and
DISMISSES the case.

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Although captioned as “notice of removal,” Plaintiff is actually seeking federal court review of a state
court judgment.
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3:24-cv-02072-CAB-JLB

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I.

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Generally, all parties instituting a civil action in this court must pay a filing fee. See

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28 U.S.C. § 1914(a); CivLR 4.5(a). But under 28 U.S.C. § 1915(a), the court may authorize

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any suit’s commencement, prosecution, or defense without payment of fees if the plaintiff

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submits an affidavit, including a statement of all his or her assets, showing he or she is

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unable to pay filing fees or costs. “An affidavit in support of an IFP application is sufficient

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where it alleges that the affiant cannot pay the court costs and still afford the necessities of

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life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking

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IFP status must allege poverty with some particularity, definiteness and certainty.” Id.

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(internal quotation marks omitted). Granting or denying leave to proceed IFP in civil cases

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is within the district court’s sound discretion. Venerable v. Meyers, 500 F.2d 1215, 1216

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(9th Cir. 1974) (citations omitted).

Motion to Proceed IFP

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Here, Plaintiff has listed his income and expenses at $0. He notes, however, that his

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parents cover his basic living expenses and that he receives Medi-Cal and SNAP benefits.

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Plaintiff must specify (1) the amount of financial support he receives both from his parents

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and in public benefits and (2) his monthly expenses. Due to Plaintiff’s lack of particularity,

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his application to proceed IFP is DENIED.

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II.

Screening of the Complaint Pursuant to 42 U.S.C. § 1915(e)(2)(B)

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A plaintiff seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua

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sponte dismissal if the complaint is “frivolous or malicious; fails to state a claim upon

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which relief may be granted; or seeks monetary relief against a defendant who is immune

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from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th

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Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”);

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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only

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permits but requires a district court to dismiss an in forma pauperis complaint that fails to

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state a claim.”). Congress enacted this safeguard because “a litigant whose filing fees and

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court costs are assumed by the public . . . lacks an economic incentive to refrain from filing

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frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992)
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3:24-cv-02072-CAB-JLB

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(quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). Although the Court denies

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Plaintiff’s IFP application, it elects nonetheless to screen Plaintiff’s complaint.

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A.

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“The Rooker-Feldman doctrine bars lower federal courts from exercising

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jurisdiction ‘to review the final determinations of a state court in judicial proceedings.’”

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Benavidez v. County of San Diego, 993 F.3d 1134, 1142 (9th Cir. 2021) (quoting Branson

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v. Nott, 62 F.3d 287, 291 (9th Cir. 1995), overruled on other grounds by Amphastar Pharm.

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Inc. v. Aventis Pharma SA, 856 F.3d 696, 710 (9th Cir. 2017)) (other citations omitted).

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Indeed, “a party losing in state court is barred from seeking what in substance would be

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appellate review of the state judgment in a United States district court, based on the losing

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party’s claim that the state judgment itself violates the loser’s federal rights.” Johnson v.

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De Grandy, 512 U.S. 997, 1005–06 (1994). “The Rooker–Feldman doctrine prevents

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lower federal courts from exercising jurisdiction over any claim that is ‘inextricably

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intertwined’ with the decision of a state court, even where the party does not directly

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challenge the merits of the state court's decision but rather brings an indirect challenge

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based on constitutional principles.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n.4 (9th

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Cir. 2003). “If the court determines at any time that it lacks subject-matter jurisdiction, the

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court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

The Court Lacks Subject Matter Jurisdiction

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Here, Plaintiff alleges violations of federal law by various parties involved in his

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divorce and child custody/support proceedings: the California Department of Child

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Support Services (“CDCSS”), opposing counsel, the family court commissioner, and the

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state court judge. Plaintiff’s sought relief includes voidance of his divorce judgment,

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recalculation of his income for child support purposes, and various injunctions against the

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CDCSS. As Plaintiff purports to remove a California state court divorce judgment, the

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3:24-cv-02072-CAB-JLB

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Court lacks subject matter jurisdiction and Plaintiff’s case is dismissed.2 See Conte v.

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Conte, No. 2:17-CV-015720-JAD-VCF, 2017 WL 3908665 (D. Nev. Sept. 6, 2017)

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(finding Court lacked subject matter jurisdiction over challenge to divorce decree that

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judge relied on inaccurate information); see also McCavey v. Gold, 625 F. App’x 968, 971–

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72 (11th Cir. 2015) (finding Court lacked subject matter jurisdiction over claims related to

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structure and nature of divorce proceedings); see also Betts v. CPS, No. 2:13-CV-01486-

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KJM-KJN, 2013 WL 4049720 (E.D. Cal. Aug. 9, 2013) (finding Plaintiff’s challenge to

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state-court decision regarding child custody barred by Rooker-Feldman).

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III.

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Accordingly, Plaintiff’s application to proceed IFP is DENIED and Plaintiff’s case

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Conclusion

is DISMISSED.

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It is SO ORDERED.

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Dated: November 26, 2024

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advised that any causes of action independent of the divorce judgment may be the source of a separately

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filed complaint.

As to Plaintiff’s claims against CDCSS which allegedly arose after the divorce judgment, Plaintiff is

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3:24-cv-02072-CAB-JLB