Schulstrom v. Schulstrom
Filing
6
Opinion and Order - Plaintiff's application to proceed in forma pauperis 2 is GRANTED. The Court finds, however, that the Complaint fails to state a claim on which relief may be granted and fails to establish that this Court has subject-matter jurisdiction over Plaintiff's claims. Plaintiff's claims for mail fraud, perjury, wiretapping, and violations of her constitutional rights are DISMISSED with prejudice. Signed on 7/11/2014 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAMELA SUE SCHULSTROM,
Plaintiff,
Case No. 3:14-cv-00791-SI
OPINION AND ORDER
v.
SCOTT RUSSELL SCHULSTROM,
Defendant.
Pamela Sue Schulstrom, c/o Kalie Schulstrom, 15246 S.W. Teal Blvd. #C, Beaverton, OR
97007. Pro se.
Michael H. Simon, District Judge.
Plaintiff Pamela Sue Schulstrom filed a pro se Complaint against Defendant Scott Russell
Schulstrom on May 14, 2014. Dkt. 1. Service of process has not yet occurred. Plaintiff also filed
an application to proceed in forma pauperis, Dkt. 2, and the Court grants Plaintiff’s application
to proceed in forma pauperis. Under the liberal pleading standards afforded to pro se plaintiffs,
however, the Court finds that Plaintiff’s Complaint fails to state a claim on which relief may be
granted. For the following reasons, Plaintiff’s Complaint is dismissed.
PAGE 1 – OPINION AND ORDER
STANDARDS
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless
Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s
factual allegations, the court must accept as true all well-pleaded material facts alleged in the
complaint and construe them in the light most favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a
complaint “may not simply recite the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the
benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se
PAGE 2 – OPINION AND ORDER
litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear that the
deficiencies of the complaint could not be cured by amendment.’” Karim-Panahi v. L.A. Police
Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th
Cir. 1987), superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122
(9th Cir. 2000)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
This standard “does not require ‘detailed factual allegations,’” but does demand “more than an
unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S.
at 555).
A complaint filed in forma pauperis may be dismissed at any time, including before
service of process, if the court determines that:
(A) the allegation of poverty is untrue; or
(B) the action or appeal (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).
The federal courts are courts of limited jurisdiction. Gunn v. Minton, --- U.S. ---, 133
S. Ct. 1059, 1064 (2013) (citation omitted). As such, a court is to presume “that a cause lies
outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party
asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The Court must dismiss any
PAGE 3 – OPINION AND ORDER
case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). The court has “an
independent obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The
court may therefore raise the question of subject-matter jurisdiction on its own initiative at any
stage in the litigation. Arbaugh, 546 U.S. at 506. “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis
added).
“Defective allegations of jurisdiction may be amended, upon terms, in the trial or
appellate courts.” 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective
allegation of jurisdiction without leave to amend “unless it is clear, upon de novo review, that the
complaint could not be saved by amendment.” Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6
(9th Cir. 2002) (citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)).
BACKGROUND
Plaintiff brings suit against her former husband. In her pro se Complaint, Plaintiff alleges
that Defendant concealed a piece of mail addressed to Plaintiff that pertained to the parties’ joint
Chapter 13 bankruptcy, causing the bankruptcy to be dismissed, and then lied to an Oregon state
court regarding the bankruptcy during a divorce proceeding. Plaintiff also alleges that Defendant
failed to comply with a state court order requiring him to provide Plaintiff with medical
insurance cards. Finally, Plaintiff alleges Defendant recorded a conversation between himself
and Plaintiff without her consent.
Plaintiff claims that Defendant has committed mail fraud, perjury, and wiretapping and
has deprived Plaintiff of property, due process, and her right to life, violating the Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution. Plaintiff seeks relief in the form
of $22,000 in damages related to debt not discharged through bankruptcy, $800 per month in
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damages related to health insurance, and intervention by the Court vacating a judgment of the
Clackamas County Circuit Court. Plaintiff asserts federal question jurisdiction as the basis for the
Court’s jurisdiction over her claims.
DISCUSSION
A. Mail Fraud
Plaintiff claims that Defendant committed mail fraud by concealing from Plaintiff a piece
of mail that would have alerted her to the pending dismissal of the couple’s joint Chapter 13
bankruptcy. The mail was addressed to Plaintiff but sent to an address at which she no longer
resided. Although Plaintiff does not cite a specific statute in her Complaint, the Civil Cover
Sheet filed with it lists 18 U.S.C. §§ 1346 and 1349 as statutes under which she has filed the
Complaint. Mail fraud is a federal crime under 18 U.S.C. § 1341. Section 1346 defines “scheme
or artifice to defraud” in the context of the federal mail fraud statutes and § 1349 applies the
same penalties for violation of those statutes to “attempt and conspiracy.” To the extent that
Plaintiff alleges a violation of §§ 1341, 1346, or 1349, however, a civil suit is not a viable
remedy. See Wilcox v. First Interstate Bank, 815 F.2d 522, 533 n.1 (9th Cir. 1987) (“there is no
private right of action for mail fraud under 18 U.S.C. § 1341”). It is clear that the deficiencies of
Plaintiff’s Complaint with respect to mail fraud cannot be cured by amendment, and her claim
for mail fraud is therefore dismissed with prejudice.
B. Perjury
Plaintiff claims that Defendant “perjured himself” in Clackamas County Circuit Court by
lying to that court regarding his compliance with multiple orders. It is unclear from the
Complaint whether Plaintiff alleges a violation of federal or state law with respect to her
allegation of perjury against Defendant, as she does not cite any statute. Neither federal nor
Oregon law, however, recognize a private right of action for perjury.
PAGE 5 – OPINION AND ORDER
Perjury is a federal crime under 18 U.S.C. § 1621. Federal criminal statutes, however,
including § 1621, do not generally create a private right of action in a plaintiff. See, e.g., Fuller
v. Unknown Officials from the Justice Dep't Crime Div., 387 F. App’x 3, 4 (D.C. Cir. 2010); see
also Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190
(1994) (noting the Court has refused to “infer a private right of action from a ‘bare criminal
statute’” (quoting Cort v. Ash, 422 U.S. 66, 80 (1975))). Similarly, this Court has previously held
that Oregon law does not recognize a private right of action for violation of criminal perjury
statutes, including Or. Rev. Stat. § 162.065; any criminal action for perjury must be initiated by
the State. Staton v. BAC Home Loans Servicing, L.P., 2012 WL 1624296 at *11 (D. Or. May 5,
2012); Moore v. Chambers, 2012 WL 5182806 at *5 (D. Or. Oct. 1, 2012), report and
recommendation adopted, 2012 WL 5051795 (D. Or. Oct. 18, 2012). It is clear that the
deficiencies of the Complaint with respect to the claim of perjury cannot be cured by
amendment, and that claim is therefore dismissed with prejudice.
C. Wiretapping
Plaintiff alleges that Defendant committed wiretapping by recording a conversation
between the two without Plaintiff’s knowledge and by disclosing that recording to a third-party,
including during divorce proceedings in Clackamas County Circuit Court. Although Plaintiff’s
Complaint does not cite any statute, the Civil Cover Sheet lists “18 U.S.C. §§ 2510-2522.” Under
those statutes, any person who “intentionally intercepts” or “endeavors to intercept . . . any wire,
oral or electronic communication” or who “intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or electronic communication, knowing or having
reason to know that the information was obtained through the interception of a wire, oral, or
electronic communication” is guilty of wiretapping. 18 U.S.C. §§ 2511(1)(a), (c).
PAGE 6 – OPINION AND ORDER
Although § 2511 is a criminal statute, 18 U.S.C. § 2520(a) recognizes a private right of
action for violation of § 2511. It is not a violation of § 2511, however, for a person to intercept a
wire, oral, or electronic communication if that person is a party to the communication. 18 U.S.C.
§ 2511(2)(c). Accordingly, Plaintiff’s factual allegations are insufficient to allege a violation of
§ 2511. Defendant was a party to the conversation that Plaintiff alleges that he recorded. Thus,
his recording is not a violation of § 2511. Plaintiff’s claim for wiretapping is therefore dismissed
with prejudice.
D. Constitutional Claims
Plaintiff cites 42 U.S.C. § 1983 on the Civil Cover Sheet and alleges that Defendant has
violated her rights under the Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution. Section 1983 creates a private right of action against any person who acts “under
color of any statute, ordinance, regulation, custom, or usage, of any State” to deprive the plaintiff
of any “rights, privileges, or immunities secured by the Constitution and laws.” Private
individuals are not generally subject to liability under § 1983 unless “under the facts of [the]
case, . . . [the] private parties, may be appropriately characterized as ‘state actors.’” Villegas v.
Gilroy Garlic Festival Ass'n, 541 F.3d 950, 955 (9th Cir. 2008) (en banc) (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 939 (1982)).
The Ninth Circuit has identified four approaches to determine whether private behavior
may be attributed to the State: “(1) public function; (2) joint action; (3) governmental
compulsion or coercion; and (4) governmental nexus.” Kirtley v. Rainey, 326 F.3d 1088, 1092
(9th Cir. 2003) (quotation marks and citation omitted). Under the public function test a court
must determine whether the defendant was “endowed by the State with powers or functions
governmental in nature.” Id. at 1093 (quotation marks and citation omitted). Under the joint
action approach, a court must decide “whether the [S]tate has so far insinuated itself into a
PAGE 7 – OPINION AND ORDER
position of interdependence with the private entity that it must be recognized as a joint
participant in the challenged activity.” Id. (quotation marks and citation omitted). The
government compulsion or coercion approach examines “whether the coercive influence or
significant encouragement of the [S]tate effectively converts a private action into a government
action.” Id. at 1094 (quotation marks omitted). Finally, under the governmental nexus test a court
must decide “whether there is such a close nexus between the State and the challenged action
that the seemingly private behavior may be fairly treated as that of the State itself.” Id.
at 1094-95 (quotation marks and citation omitted).
Plaintiff appears to allege that Defendant, a private individual, violated her rights under
the Fifth, Eighth, and Fourteenth Amendments by lying to the Clackamas County Circuit Court,
causing that court to issue an incorrect judgment, and by withholding health insurance cards
from her in violation of an order of the Clackamas County Circuit Court. These alleged acts are
private actions taken by Defendant.
Plaintiff does not allege any facts that suggest that Defendant was endowed by the State
with any powers or functions when he lied to the Clackamas County Circuit Court, nor that the
State placed itself in a position of interdependence with Defendant or coerced or encouraged his
behavior. Kirtley, 326 F.3d 1093-94. Furthermore, Plaintiff has not alleged facts that demonstrate
a close nexus between the State and Defendant that would allow his behavior to be treated as that
of the State. Id. at 1094-95. Finally, according to the Complaint, Defendant’s alleged action of
withholding health insurance cards from Plaintiff was in direct violation of an order of the
Clackamas County Circuit Court.
Because Plaintiff has failed to allege any facts that support an inference that Defendant’s
private actions are fairly attributable to the State, her constitutional claims against Defendant
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under § 1983 are dismissed with prejudice. The Court need not address the question of whether
Plaintiff has been deprived of any “rights, privileges, or immunities secured by the Constitution
and laws.” 42 U.S.C. § 1983.
E. Jurisdiction
Plaintiff contends that this Court has jurisdiction over her claims because they present a
federal question under 28 U.S.C. § 1331. The Court has liberally construed and dismissed the
four claims discussed above arising under the United States Constitution and federal law and
finds no other claims in the Complaint. To the extent that Plaintiff intended to assert any claims
arising under state law the Court declines to exercise supplemental jurisdiction under 28 U.S.C.
§ 1367.
CONCLUSION
Plaintiff’s application to proceed in forma pauperis is GRANTED. The Court finds,
however, that the Complaint fails to state a claim on which relief may be granted and fails to
establish that this Court has subject-matter jurisdiction over Plaintiff’s claims. Plaintiff’s claims
for mail fraud, perjury, wiretapping, and violations of her constitutional rights are DISMISSED
with prejudice.
IT IS SO ORDERED.
DATED this 11th day of July, 2014.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 9 – OPINION AND ORDER
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