Dean v. Baltagar et al, No. 2:2012cv00172 - Document 4 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/6/12 RECOMMENDING that re 2 MOTION to Proceed in Forma Pauperis filed by Michael Dean be dismissed, 1 Complaint filed by Michael Dean be dismissed without leave to amend; 3 MOTION for Temporary Restraining Order filed by Michael Dean be denied, and that this action be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due 14 days after being served with these Findings and Recommendations. (Meuleman, A)
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Dean v. Baltagar et al Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL DEAN, 11 12 13 14 Plaintiff, v. PRISCILA M. BALTAGAR, et al., FINDINGS AND RECOMMENDATIONS Defendants. 15 16 No. CIV S-12-0172 MCE DAD PS / This matter was referred to the undersigned in accordance with Local Rule 17 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has requested leave to proceed in forma pauperis 18 pursuant to 28 U.S.C. § 1915. 19 Plaintiff has submitted an in forma pauperis application that makes the showing 20 required by 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies 21 financially for in forma pauperis status does not complete the inquiry required by the statute. The 22 court must dismiss an in forma pauperis case at any time if the allegation of poverty is found to 23 be untrue or if it is determined that the action is frivolous or malicious, fails to state a claim on 24 which relief may be granted, or seeks monetary relief against an immune defendant. See 28 25 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or in 26 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 12271 Dockets.Justia.com 1 28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is 2 based on an indisputably meritless legal theory or where the factual contentions are clearly 3 baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 4 To state a claim on which relief may be granted, the plaintiff must allege “enough 5 facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court 7 accepts as true the material allegations in the complaint and construes the allegations in the light 8 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. 9 Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 10 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 11 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as 12 true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 13 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 14 The minimum requirements for a civil complaint in federal court are as follows: 15 A pleading which sets forth a claim for relief . . . shall contain (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. 16 17 18 19 Fed. R. Civ. P. 8(a). Here, plaintiff’s filing is deficient in several respects. First, plaintiff’s one-page 20 complaint, although certainly short, does not contain a plain statement of the grounds upon which 21 the court’s jurisdiction depends. In this regard, plaintiff’s complaint consist exclusively of vague 22 and conclusory allegations, and is nearly incomprehensible. 23 Jurisdiction is a threshold inquiry that must precede the adjudication of any case 24 before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 25 858 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may 26 adjudicate only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 2 1 U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992).1 “Federal courts are 2 presumed to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” 3 Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. 4 Dist., 475 U.S. 534, 546 (1986)). 5 Lack of subject matter jurisdiction may be raised by the court at any time during 6 the proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th 7 Cir. 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] 8 has subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It 9 is the obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux 10 v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court 11 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380. 12 The burden of establishing jurisdiction rests upon plaintiff as the party asserting 13 jurisdiction. Kokkonen, 511 U.S. at 377; see also Hagans v. Lavine, 415 U.S. 528, 543 (1974) 14 (acknowledging that a claim may be dismissed for lack of jurisdiction if it is “so insubstantial, 15 implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy 16 within the jurisdiction of the District Court”); Bell v. Hood, 327 U.S. 678, 682-83 (1946) 17 (recognizing that a claim is subject to dismissal for want of jurisdiction where it is “wholly 18 insubstantial and frivolous” and so patently without merit as to justify dismissal for lack of 19 jurisdiction ); Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (holding that even 20 “[a] paid complaint that is ‘obviously frivolous’ does not confer federal subject matter 21 jurisdiction . . . and may be dismissed sua sponte before service of process.”). 22 23 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also 24 25 26 1 Congress has conferred jurisdiction upon the federal district courts as limited by the United States Constitution. U.S. Const. Art. III, § 2; 28 U.S.C. § 132; see also Ankenbrandt v. Richards, 504 U.S. 689, 697-99 (1992). 3 1 be conferred by federal statutes regulating specific subject matter. District courts have “original 2 jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United 3 States.” 28 U.S.C. § 1331. “Most federal-question jurisdiction cases are those in which federal 4 law creates a cause of action. A case may also arise under federal law where ‘it appears that 5 some substantial, disputed question of federal law is a necessary element of one of the well- 6 pleaded state claims.’” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (quoting Franchise 7 Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13 (1983)). The 8 “well-pleaded complaint rule” provides that federal jurisdiction exists only when a federal 9 question is presented on the face of the plaintiff’s properly pleaded complaint. California v. 10 United States, 215 F.3d 1005, 1014 (9th Cir. 2000). 11 “‘Arising under’ federal jurisdiction only arises . . . when the federal law does 12 more than just shape a court’s interpretation of state law; the federal law must be at issue.” Int’l 13 Union of Operating Eng’rs v. County of Plumas, 559 F.3d 1041, 1045 (9th Cir. 2009). The mere 14 presence of a federal issue does not automatically confer federal-question jurisdiction, and 15 passing references to federal statutes do not create a substantial federal question. Lippitt v. 16 Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1040-41 (9th Cir. 2003); Rains v. Criterion 17 Sys., Inc., 80 F.3d 339, 344 (9th Cir. 1996). “When a claim can be supported by alternative and 18 independent theories – one of which is a state law theory and one of which is a federal law theory 19 – federal question jurisdiction does not attach because federal law is not a necessary element of 20 the claim.” Rains, 80 F.3d at 346. See also Lippitt, 340 F.3d at 1043. 21 In addition, plaintiff’s complaint does not state a cause of action or allege the 22 factual allegations underlying that cause of action. In this regard, plaintiff’s complaint reads as 23 follows: 24 25 26 ON 6 11 2010 PRISCILA M BALTAGAR FORGED FORECLOSURE DOCUMENT “DECLARATION OF COMPLIANCE CC SEC 2923(b) TO PROCEDE [sic] FORECLOSURE ON 420 LAS PALMAS AVE IN SACRAMENTO CA, IN VIOLATION OF FEDERAL AND 4 1 LOCAL LAWS CAL SB 2923 & 2923.b AND US CODE TITLE 9 (ARBITRATION) AND LOCAL LAWS EVER SINCE 6 11 2010 FIN.CO DOES NOT RELEASE REFINANCING STATEMENT (HUD PRESENTED REF, DOCUMENTS ON SEVERAL OCASIONS [sic] WITHOUT RESULT) SPRINGLEAF CLAIMS DEED AS LEGAL DOCUMENT THAT WOULD PROVE ANY CONTACT ADMITTED GUILT IN COURT CASE IN SUP CT IN SACRAMENTO (ALLOWING 3 MOS EXTENTION [sic] OF REFINANCING PERIOD WHERE AGAIN DENIED ACCESS TO HUD REFINANCE[.] 2 3 4 5 6 7 (Compl. (Doc. No. 1) at 1.) 8 9 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 10 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 11 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 12 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 13 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 14 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, ---, 129 S. Ct. 1937, 1949 (2009) (quoting 15 Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of particularity 16 overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 17 649. 18 Finally, plaintiff’s complaint appears to refer to a prior action between the parties 19 that was apparently filed in the Sacramento County Superior Court. Under the Rooker-Feldman 20 doctrine, federal district courts lack jurisdiction to review alleged errors in state court decisions. 21 Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983) (holding that review 22 of state court determinations can be obtained only in the United States Supreme Court). The 23 doctrine applies to “cases of the kind from which the doctrine acquired its name: cases brought 24 by state-court losers complaining of injuries caused by state-court judgments rendered before the 25 district court proceedings commenced and inviting district court review and rejection of those 26 judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “The 5 1 purpose of the doctrine is to protect state judgments from collateral federal attack.” Doe & 2 Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001). Pursuant to this 3 doctrine, a federal district court is prohibited from exercising subject matter jurisdiction over a 4 suit that is “a de facto appeal” from a state court judgment. Kougasian v. TMSL, Inc., 359 F.3d 5 1136, 1139 (9th Cir. 2004). A federal district court may not examine claims that are inextricably 6 intertwined with state court decisions, “even where the party does not directly challenge the 7 merits of the state court’s decision but rather brings an indirect challenge based on constitutional 8 principles.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n.4 (9th Cir. 2003). See also Ignacio v. 9 Judges of U.S. Court of Appeals, 453 F.3d 1160, 1165-66 (9th Cir. 2006) (affirming district 10 court’s dismissal of the case “because the complaint is nothing more than another attack on the 11 California superior court’s determination in [plaintiff’s] domestic case”). 12 13 14 For all of the reasons cited above, plaintiff’s complaint should be dismissed for failure to state a claim upon which relief can be granted. The undersigned has carefully considered whether plaintiff may amend his 15 pleading to state a claim upon which relief can be granted. “Valid reasons for denying leave to 16 amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. 17 Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake 18 Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that 19 while leave to amend shall be freely given, the court does not have to allow futile amendments). 20 In light of the obvious deficiencies of the complaint filed by plaintiff in this action as noted 21 above, the court finds that it would be futile to grant plaintiff leave to amend. 22 Plaintiff has also filed a motion for a temporary restraining order. The standards 23 governing the issuance of temporary restraining orders are “substantially identical” to those 24 governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D. 25 Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). “[I]njunctive relief [is] an 26 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 6 1 to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “The proper 2 legal standard for preliminary injunctive relief requires a party to demonstrate ‘that he is likely to 3 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 4 relief, that the balance of equities tips in his favor, and that an injunction is in the public 5 interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 6 U.S. at 20); see also Center for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) 7 (“After Winter, ‘plaintiffs must establish that irreparable harm is likely, not just possible, in order 8 to obtain a preliminary injunction.”); Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 9 1046, 1052 (9th Cir. 2009). The Ninth Circuit has also held that “[a] preliminary injunction is 10 appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were 11 raised and the balance of hardships tips sharply in the plaintiff’s favor.” Alliance for Wild 12 Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (quoting Lands Council v. McNair, 13 537 F.3d 981, 97 (9th Cir. 2008) (en banc)).2 14 As discussed above, the undersigned will recommend that plaintiff’s complaint be 15 dismissed for failure to state a claim upon which relief can be granted. In light of that 16 recommendation, it is unlikely that plaintiff will succeed on the merits of the claims alleged in 17 his complaint. Moreover, for the same reasons, the court finds that plaintiff has not raised 18 serious questions with respect to the merits of his claims. Accordingly, the undersigned will 19 recommend that plaintiff’s motion for a temporary restraining order be denied. 20 Accordingly, IT IS RECOMMENDED that: 21 1. Plaintiff’s January 24, 2012 application to proceed in forma pauperis (Doc. No. 22 2) be denied; 23 2 24 25 26 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale approach survives “when applied as part of the four-element Winter test.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). “That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1135. 7 1 2. Plaintiff’s January 24, 2012 complaint be dismissed without leave to amend; 2 3. Plaintiff’s February 2, 2012 ex parte motion for a temporary restraining order 3 (Doc. No. 3) be denied; and 4 4. This action be dismissed. 5 These findings and recommendations will be submitted to the United States 6 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 7 fourteen (14) days after being served with these findings and recommendations, plaintiff may file 8 written objections with the court. A document containing objections should be titled “Objections 9 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 10 objections within the specified time may, under certain circumstances, waive the right to appeal 11 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: February 6, 2012. 13 14 15 16 17 18 DAD:6 Ddad1\orders.pro se\dean0172.ifpden.tro.f&rs 19 20 21 22 23 24 25 26 8
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