Bobo v. Countrywide Home Loans
Filing
6
Order and Findings & Recommendation: Order granting application for leave to proceed IFP 2 . Findings & Recommendation: Complaint 1 should be dismissed. Objections to the Findings and Recommendation are due by 8/14/2014. Signed on 7/28/2014 by Magistrate Judge Thomas M. Coffin. (plb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHARLES LEWIS BOBO,
6:14-cv-01068-TC
Plaintiff,
v.
FINDINGS AND
RECOMMENDATION
COUNTRYWIDE HOME LOANS,
Defendant.
COFFIN, Magistrate Judge.
Plaintiff's Application to Proceed in forma pauperis (#2)
is allowed.
should
failure
be
to
Sparling v.
However, for the reasons set forth below, this action
dismissed
state
a
sua
sponte
claim.
Hoffman Constr.
28
for
lack
U.S.C.
§
Co.,
8 64
of
jurisdiction
1915(e) (2);
F. 2d 635,
637
see
and
also
(9th Cir.
1988).
Plaintiff has filed six pro se complaints against various
individuals and entities alleging a wide variety of claims.
In
1 - FINDINGS AND RECOMMENDATION
D
this
action,
plaintiff
names
"Countrywide
Home
Loans"
as
the
defendant and alleges matters apparently having to do with the
foreclosure of his home.
"In federal court, dismissal for failure to state a claim is
proper 'only if it is clear that no relief could be granted under
any
set
of
facts
allegations."'
(9th Cir. 1993)
73
that
could
be
proved
consistent
with
the
Cervantes v. City of San Diego, 5 F.3d 1273, 1274
(quoting Hishon v. King
(1984)); Tanner v. Heise,
&
Spalding, 4 67 U.S. 69,
879 F.2d 572,
576 (9th Cir.
1989).
In making this determination, this court accepts all allegations
of material fact as true and construes the allegations in the
light most favorable to the nonmoving party.
Tanner, 879 F.2d at
576.
In cases involving a plaintiff proceeding pro se, this court
construes the pleadings liberally and affords the plaintiff the
benefit of any doubt.
Cir.
McGuckin v. Smith, 974 F.2d 1050, 1055 (9th
1992); Karim-Panahi v.
Los Angeles Police Dept.,
839 F.2d
621, 623 (9th Cir. 1988).
Before dismissing a pro se civil rights complaint for failure
to
state
a
claim,
this
court
supplies
statement of the complaint's deficiencies.
1055; Karim-Panahi,
839 F.2d at 623-24;
F.2d 1132, 1136 (9th Cir. 1987).
the
plaintiff
with
a
McGuckin, 974 F.2d at
Eldridge v.
Block,
832
A pro se litigant will be given
2 - FINDINGS AND RECOMMENDATION
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leave to amend his or her complaint unless it is absolutely clear
that
the
deficiencies
amendment.
of
Karim-Panahi,
the
complaint
cannot
be
cured
839 F.2d at 623; Noll v. Carlson,
by
809
F.2d 1446, 1447 (9th Cir. 1987).
As noted above, plaintiff's claims apparently arise out of
the foreclosure of his home.
are inscrutable.
However, the nature of the claims
His claims are not alleged'in full sentences and
although plaintiff apparently believes that the foreclosure was in
some manner improper, he does not allege any specific facts that
could be
construed as
defendants.
In
other
constituting a
words,
cause of action against
plaintiff
has
not
alleged
what
specific conduct on the part of defendant violated his rights.
Pursuant to Fed.
R.
Civ.
P.
8 (a),
a
complaint shall
include "(1) a short and plain statement of the grounds upon which
the
court's
jurisdiction
depends
... '
(2)
a
short
and
plain
statement of the claim showing that the pleader is entitled to
relief; and (3) a demand for judgment for the relief the pleader
seeks."
"Each averment of a pleading shall be simple, concise and
direct." Fed. R. Civ. P. 8(e).
A district court has the power to dismiss a complaint when a
plaintiff fails to comply with Federal Rules of Civil Procedure
8 (a)
and 8 (e).
McHenry v.
Renne,
84 F. 3d 1172,
1179
(9th Cir.
1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th
3 - FINDINGS AND RECOMMENDATION
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Cir. 1981).
If the factual elements of a cause of action are scattered
throughout the complaint but are not organized into a "short and
plain statement of the claim," dismissal for failure to satisfy
Rule 8(a)
635,
640
is proper.
Sparling v. Hoffman Constr. Co., 864 F.2d
(9th Cir. 1988); see also, Nevijel v. North Coast Life
Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981).
In
order
to
state
a
claim
against
plaintiff must allege specific facts
identify
how
that
defendant's
a
named
defendant,
about that defendant and
conduct
violated
his
rights.
General allegations are insufficient. The absence of any factual
allegations against a named defendant will entitle that defendant
to have the complaint dismissed as to him,
Civ. P. 12(b).
pursuant to Fed.
R.
Polk v. Montgomery County, 548 F. Supp. 613, 614
(D.Md.
1982). See also, Morabito v.
Blum,
(S.D.
N.Y.
se
1981).
Although
pro
528 F.Supp.
complaints
252,
are
262
to
interpreted liberally, Haines v. Kerner, 92 S.Ct. 594 (1972),
be
the
court may not supply essential elements that are not pleaded.
Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982).
For the reasons set forth above, I find that the complaint
before the court does not meet the minimal pleading requirements
of the federal
rules.
Assuming that the pleading deficiencies
could be cured by amendment, the court is barred from entertaining
4 - FINDINGS AND RECOMMENDATION
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plaintiff's claims in this case under the Rooker-Feldman Doctrine.
Under the Rooker Feldman Doctrine Federal District Courts
have no jurisdiction to review the final determinations of state
courts. Worldwide Church of God v. McNair, 805 F.2d 888,
890-91
(9th Cir. 1986); District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
413,
416
(1923)
[federal
district
courts
may
not
exercise
appellate jurisdiction over state courts]. This is true even when
the
challenge
to
a
constitutional issues.
state
court
Branson v.
decision
Nott,
involves
62 F.3d 287,
federal
291
(9th
Cir. 1995); see also, Ritter v. Ross, 992 F.2d 750, 754 (7th Cir.
1993), cert denied, 510 U.S. 1046 (1994)
[a federal plaintiff may
not avoid this jurisdictional issue by casting the complaint in
the form of a federal civil rights action].
Despite the lack of clarity of any purported violation of
plaintiff's rights, it is clear from plaintiff's allegations and
attached
exhibits
that
the
import
property was improperly foreclosed.
of
his
claim
is
that
his
Thus his claim, in essence,
constitutes an attack on the validity of the state court judgment
of foreclosure.
For the reasons set forth above, such a claim is
not proper in the federal district court.
CONCLUSION
Plaintiff's Application to Proceed In forma Pauperis (#2) is
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allowed.
failure
However, plaintiff's complaint should be dismissed for
to
state
a
claim.
Because
the
deficiencies
of
the
complaint cannot be cured by amendment, the dismissal should be
with prejudice.
The Clerk of the Court should be directed to
enter a judgment accordingly.
This
recommendation
is
not
an
order that
is
immediately
appealable to the Ninth Circuit Court of Appeals.
Any notice of
appeal
of
pursuant
to
Rule
4 (a) (1),
Federal
Rules
Appellate
Procedure, should not be filed until entry of the district court's
judgment or appealable order.
(14)
days
from
the
date
The parties shall have fourteen
of
service
of
a
copy
of
this
recommendation within which to file specific written objections
with the court. Thereafter, the parties have fourteen
within which to file a response to the objections.
timely
file
objections
to
any
factual
(14)
days
Failure to
determinations
of
the
Magistrate Judge will be considered a waiver of a party's right to
de novo consideration of the factual issues and will constitute a
waiver of a party's right to appellate review of the findings of
fact in an order or judgment entered pursuant to the Magistrate
Judge's recommendation.
Ill/
Ill/
Ill/
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Any
appeal
£rom
an
order
adopting
this
Finding
and
Recommendation or Judgment o£ dismissal would be £rivolous and not
taken in good £aith.
IT IS SO ORDERED.
DATED this
d-~
day of July, 2014.
Thomas
United
Judge
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