Kayaian v. USA, No. 1:2006cv01595 - Document 3 (E.D. Cal. 2006)
Court Description: FINDINGS and RECOMMENDATIONS recommending to DISMISS this action withoutprejudice on grounds that: (1) the complaint fails to establish this Court?s subject matter jurisdiction;(2) the complaint fails to state a claim upon which relief may be granted; and (3) a further attempt atamendment is unwarranted based on the complaint?s unintelligible statements. Matter referred to Judge Wanger. Objections to F&R due by 11/24/2006 signed by Judge Lawrence J. O'Neill on 11/9/2006. (Timken, A)
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Kayaian v. USA Doc. 3 Case 1:06-cv-01595-OWW-LJO Document 3 Filed 11/13/2006 Page 1 of 6 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 SEVAN KAYAIAN, 13 14 15 CASE NO. CV F 06-1595 OWW LJO Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION vs. UNITED STATES OF AMERICA, 16 Defendant. / 17 18 INTRODUCTION 19 Plaintiff Sevan Kayaian (“plaintiff”) proceeds pro se and in forma pauperis and on November 20 8, 2006, filed an untitled document which this Court construes as a complaint (“complaint”), the 21 purported caption of which appears to list the United States of America as defendant. The complaint 22 is generally unintelligible and states: “Being poor and not voting does not mean we will sit bad [sic] and 23 let you mistreat us!” The complaint further states: 24 25 26 Driving they say is a privilege not a right. How about entering the Federal Building? According to the U.S. Marshals, that too is a privilege not a right. What is happening to this country?1 The complaint requests “respect all people as it should be. Even us with-out [sic] money.” 27 28 1 This Court has been informed that plaintiff has been escorted from the this Court’s building. 1 Dockets.Justia.com Case 1:06-cv-01595-OWW-LJO Document 3 Filed 11/13/2006 1 DISCUSSION 2 Page 2 of 6 Standards For Screening 3 “A trial court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6). . . . Such dismissal 4 may be made without notice where the claimant cannot possibly win relief.” Omar v. Sea-Land Service, 5 Inc., 813 F.2d 986, 991 (9th Cir. 1987); see Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir. 1981). Sua 6 sponte dismissal may be made before process is served on defendants. Neitzke v. Williams, 490 U.S. 7 319, 324 (1989) (dismissals under 28 U.S.C. § 1915(d) are often made sua sponte); Franklin v. Murphy, 8 745 F.2d 1221, 1226 (9th Cir. 1984) (court may dismiss frivolous in forma pauperis action sua sponte 9 prior to service of process on defendants). 10 This Court shall dismiss an in forma pauperis plaintiff’s action at any time if the Court 11 determines the action is frivolous, malicious, fails to state a claim on which relief may be granted, or 12 seeks monetary relief against an immune defendant. See 28 U.S.C. § 1915(e); 2 Schwarzer, Tashima 13 & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (2006) Attacking the 14 Pleadings, para. 9:226.1, pp. 9-69. A court need not accept as true factual allegations in in forma 15 pauperis complaints and may reject “completely baseless” allegations, including those which are 16 “fanciful,” “fantastic” or “delusional.” Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733 17 (1992). 18 A claim is legally frivolous when it lacks an arguable basis either in law or fact. Neitzke v. 19 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-1228 (9th Cir. 1984). A 20 frivolous claim is based on an inarguable legal conclusion or a fanciful factual allegation. Neitzke, 490 21 U.S. at 324. A federal court may dismiss a claim as frivolous where it is based on an indisputably 22 meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. 23 The test for maliciousness is a subjective one and requires the court to “determine the . . . good 24 faith of the applicant.” Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46 (1915); see Wright v. 25 Newsome, 795 F.2d 964, 968, n. 1 (11th Cir. 1986). A lack of good faith is found most commonly in 26 repetitive suits filed by plaintiffs who have used the advantage of cost-free filing to file a multiplicity 27 of suits. A complaint is malicious if it suggests an intent to vex defendants or abuse the judicial process 28 by relitigating claims decided in prior cases. Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C. Cir. 1981); 2 Case 1:06-cv-01595-OWW-LJO Document 3 Filed 11/13/2006 Page 3 of 6 1 Phillips v. Carey, 638 F.2d 207, 209 (10th Cir. 1981); Ballentine v. Crawford, 563 F.Supp. 627, 628-629 2 (N.D. Ind. 1983); cf. Glick v. Gutbrod, 782 F.2d 754, 757 (7th Cir. 1986) (court has inherent power to 3 dismiss case demonstrating “clear pattern of abuse of judicial process”). A lack of good faith or malice 4 also can be inferred from a complaint containing untrue material allegations of fact or false statements 5 made with intent to deceive the court. See Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984). 6 A complaint, or portion thereof, may be dismissed for failure to state a claim if it appears beyond 7 doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to 8 relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 9 45-46 (1957)); see also Palmer v. Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 10 1981). “[W]hen a federal court reviews the sufficiency of a complaint, before the reception of any 11 evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether 12 a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support 13 claims.” Scheurer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1688 (1974); Gilligan v. Jamco Development 14 Corp., 108 F.3d 246, 249 (9th Cir. 1997). 15 16 17 The complaint’s face reflects deficiencies to prevent plaintiff from offering evidence to proceed on the indecipherable complaint. Subject Matter Jurisdictional 18 Federal courts are courts of limited jurisdiction and lack inherent or general subject matter 19 jurisdiction. Federal courts can adjudicate only those cases in which the United States Constitution and 20 Congress authorize them to adjudicate. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 21 1673, 1677 (1994); Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 2008 (1989). Federal courts 22 are presumptively without jurisdiction over civil actions, and the burden to establish the contrary rests 23 upon the party asserting jurisdiction. Kokkonen, 511 U.S. at 377; 114 S.Ct. at 1677. Lack of subject 24 matter jurisdiction is never waived and may be raised by the court sua sponte. Attorneys Trust v. 25 Videotape Computer Products, Inc., 93 F.3d 593, 594-595 (9th Cir. 1996). “Nothing is to be more 26 jealously guarded by a court than its jurisdiction. Jurisdiction is what its power rests upon. Without 27 jurisdiction it is nothing.” In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988). 28 F.R.Civ.P. 8 establishes general pleading rules and provides in pertinent part: 3 Case 1:06-cv-01595-OWW-LJO 1 2 3 Document 3 Filed 11/13/2006 Page 4 of 6 (a) Claims for Relief. 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, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short 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. 4 ... 5 (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise and direct. 6 7 8 9 10 The complaint alleges neither grounds for nor facts to support this Court’s jurisdiction. The complaint reveals no grounds to properly invoke this Court’s jurisdiction. Pleading Deficiencies 11 A pleading may not simply allege a wrong has been committed and demand relief. The 12 underlying requirement is that a pleading give “fair notice” of the claim being asserted and the “grounds 13 upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103 (1957); Yamaguchi v. 14 United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997). Although a complaint need 15 not outline all elements of a claim, “[i]t must be possible . . . for an inference to be drawn that these 16 elements exist.” Walker v. South Central Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); Lewis 17 v. ACB Business Service, Inc., 135 F.3d 389, 405-406 (6th Cir. 1998). Despite the flexible pleading 18 policy of the Federal Rules of Civil Procedure, a complaint must give fair notice and state the elements 19 of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 20 1984). A plaintiff must allege with at least some degree of particularity overt facts which defendant 21 engaged in to support plaintiff’s claim. Jones, 733 F.2d at 649. 22 The complaint makes indecipherable references to poverty, mistreatment, and privileges. The 23 complaint is unintelligible and alleges no specific claims against a personalized defendant or a particular 24 defendant. The complaint fails to provide fair notice and to state facts to support elements of particular 25 claims. The complaint seeks no clear relief. 26 Bivens Claims 27 The complaint is unclear whether it attempts to allege claims pursuant to Bivens v. Six Unknown 28 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for 4 Case 1:06-cv-01595-OWW-LJO Document 3 Filed 11/13/2006 Page 5 of 6 1 violation of civil rights by federal actors. Under the doctrine of sovereign immunity, a Bivens action will 2 not lie against the United States, its agencies, or federal agents in their official capacity. See FDIC v. 3 Meyer, 510 U.S. 471, 486 (1994); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996); Cato v. United 4 States, 70 F.3d 1103, 1110 (9th Cir. 1995). To the extent that federal officers are sued in their official 5 capacity, such claims are barred by the doctrine of sovereign immunity. Gilbert v. DaCrossa, 756 F.2d 6 1455, 1458 (9th Cir. 1985). Although sovereign immunity does not bar damages actions against federal 7 officials in their individual capacities, an individual may not be held liable in a Bivens action on the 8 theory respondeat superior. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citations omitted). 9 To the extent it attempts to do so, the complaint fails to allege cognizable, viable Bivens claims. 10 Malice 11 This Court is concerned that plaintiff has brought this action in absence of good faith and 12 attempts to take advantage of cost-free filing to vex an insufficiently identified defendant. Plaintiff has 13 filed in this Court a similar action entitled Sevan Kayaian v. State of California, Case No. CV F 06-1594 14 AWI LJO. Such attempt to vex provides further grounds to dismiss this action. 15 RECOMMENDATION AND ORDER 16 For the reasons discussed above, this Court RECOMMENDS to DISMISS this action without 17 prejudice on grounds that: (1) the complaint fails to establish this Court’s subject matter jurisdiction; 18 (2) the complaint fails to state a claim upon which relief may be granted; and (3) a further attempt at 19 amendment is unwarranted based on the complaint’s unintelligible statements. 20 These findings and recommendations are submitted to the United States district judge assigned 21 to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72-304. No later than 22 November 24, 2006, plaintiff may file written objections to these findings and recommendations with 23 the Court and in compliance with this Court’s Local Rule 72-304(b). Such a document should be 24 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district court will 25 then review the magistrate judge’s ruling, pursuant to 28 U.S.C. § 636(b)(1)(c)). Plaintiff is admonished 26 that failure to file objections within the specified time may waive the right to appeal the district court’s 27 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 28 Plaintiff is admonished not to attempt to file an amended complaint as plaintiff’s recourse 5 Case 1:06-cv-01595-OWW-LJO Document 3 Filed 11/13/2006 Page 6 of 6 1 is to object to these findings and recommendations. Plaintiff is further admonished this Court will 2 strike any papers to attempt to file an amended complaint unless this Court specifically grants 3 plaintiff permission to file an amended complaint. 4 5 IT IS SO ORDERED. Dated: 66h44d November 9, 2006 /s/ Lawrence J. O'Neill UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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