Sullivan v. Town of Derry, Public Works Dept.

Filing 4

ORDER granting 3 Notice (Other) motion for leave to proceed in forma pauperis filed by Billy Budd Sullivan, FINDINGS AND RECOMMENDATIONS re 1 Complaint filed by Billy Budd Sullivan. Signed by Magistrate Judge Jeremiah C. Lynch on 3/11/2014. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
BILLY BUDD SULLIVAN,

CV 14-33-M-DWM-JCL

Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION

vs.

TOWN OF DERRY, PUBLIC WORKS
DEPT.,
Defendant.

Plaintiff Billy Budd Sullivan, proceeding pro se, submitted a document to
this Court which he titled as an “APPEAL.” In the body of the document Sullivan
states he desires to appeal his “case [...] that is in the New Hampshire Supreme
Court[.]” (Doc. 1 at 1.)
When Sullivan first submitted his pleading he did not pay the applicable
filing fee. Therefore, by Order entered February 7, 2014, the Court informed
Sullivan that before he could proceed with this action he had to either pay the
required filing fee of $400, or submit a motion to proceed in forma pauperis
together with the required affidavit under authority of 28 U.S.C. § 1915(a)(1).
On February 18, 2014, Sullivan filed a motion requesting leave to proceed
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in forma pauperis. Upon review of Sullivan’s declaration attached to his motion
the Court finds Sullivan has made the showing required by 28 U.S.C. § 1915(a)
rendering him eligible to proceed in forma pauperis. Because it appears he lacks
sufficient funds to prosecute this action IT IS HEREBY ORDERED that
Sullivan’s Motion to Proceed In Forma Pauperis is GRANTED. This action may
proceed without prepayment of the filing fee.
The Court has authority to screen pleadings filed by litigants who are
proceeding in forma pauperis, and to dismiss an action if the Court finds that the
action:
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.
28 U.S.C. § 1915(e)(2)(B).
In addition to the grounds for dismissal set forth in 28 U.S.C. § 1915(e)(2)
above, the Court must consider whether it possesses jurisdiction over the
particular matter presented to the Court.
Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute[.]... It is to be presumed that a
cause lies outside this limited jurisdiction,... and the burden of establishing
the contrary rests upon the party asserting jurisdiction[.]
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Kokkonen v. Guardian Life Ins. of America, 511 U.S. 375, 377 (1994) (citations
omitted). A pleading must set forth sufficient allegations to invoke the
jurisdiction of this Court (Fed. R. Civ. P. 8(a)(1))1, and a plaintiff bears the burden
to establish jurisdiction. Farmers Ins. Ex. v. Portage La Prairie Mut. Ins. Co., 907
F.2d 911, 912 (9th Cir. 1990).
Also, the federal courts are obligated to independently examine their own
jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). Absent
jurisdiction, a case is subject to dismissal. Fed. R. Civ. P. 12(h)(3); Fiedler v.
Clark, 714 F.2d 77, 78-9 (9th Cir. 1983).
For the reasons stated, the Court concludes this action is barred by the
Rooker-Feldman doctrine. This doctrine, which derives its name from two United
States Supreme Court Cases – Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)
and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) –
“stands for the relatively straightforward principle that federal district courts do
not have jurisdiction to hear de facto appeals from state court judgments.”
Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010). Restated, “[i]f a
federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state

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Pro se litigants are “bound by the rules of procedure.” Ghazali v. Moran,
46 F.3d 52, 54 (9th Cir. 1995).
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court, and seeks relief from a state court judgment based on that decision,
Rooker-Feldman bars subject matter jurisdiction in federal district court.” Noel v.
Hall, 341 F.3d 1148, 1155 (9th Cir. 2003). When a case is a forbidden “de facto
appeal” the district court also lacks jurisdiction over all issues which are
“inextricably intertwined” with an issue resolved by the predicate decision of the
state court. Id., 341 F.3d at 1158.
Here, Sullivan’s pleading clearly seeks to appeal his case that was filed with
the New Hampshire Supreme Court. Sullivan requests that the referenced “case
[be] appealed and brought here[]” for review by this Court. (Doc. 1 at 1.) Thus,
because Sullivan’s pleading seeks relief from the New Hampshire Supreme
Court’s proceedings, Sullivan’s pleading is the type of “de facto appeal” barred by
Rooker-Feldman.2
Ordinarily, “[d]ismissal of a pro se complaint without leave to amend is

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Alternatively, to the extent Sullivan’s pleading can be read to suggest his
case in the New Hampshire Supreme Court is not final and is still ongoing, this
Court would likewise be barred from interfering with that state proceeding. There
exists a strong policy against federal intervention in pending state judicial
proceedings in the absence of extraordinary circumstances. Younger v. Harris,
401 U.S. 37, 43-45 (1971). See also Gilbertson v. Albright, 381 F.3d 965, 973 (9th
Cir. 2004) (quoting Middlesex County Ethics Committee v. Garden State Bar
Association, 457 U.S. 423, 431 (1982)). The Younger doctrine, in general, directs
federal courts to abstain from granting relief that would interfere with pending
state or local proceedings. Gilbertson, at 381 F.3d at 968.
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proper only if it is absolutely clear that the deficiencies of the complaint could not
be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.
2007) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988));
Kendall v. VISA U.S.A., Inc., 518 F.3d 1042, 1051-52 (9th Cir. 2008). Here,
however, based on the Rooker-Feldman doctrine, any amendment by Sullivan
would be futile and, therefore, it is unnecessary to give Sullivan an opportunity to
amend his complaint. See Leadsinger, Inc. v. BMG Music Publishing, 512 F.3d
522, 532 (9th Cir. 2008).
Based on the foregoing, IT IS HEREBY RECOMMENDED that this action
be DISMISSED for lack of jurisdiction.
DATED this 11th day of March, 2014.

Jeremiah C. Lynch
United States Magistrate Judge

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