Kalincheva v. Neubarth, No. 1:2014cv01262 - Document 21 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS Denying Plaintiff's Motion to Proceed in Forma Pauperis and Dismissing the Complaint without Leave to Amend, signed by Magistrate Judge Jennifer L. Thurston on 10/9/14. Referred to Judge O'Neill; 14-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MAGDALINA KALINCHEVA, 12 Plaintiff, 13 14 v. JESSE NEUBARTH, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01262 - LJO - JLT FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT WITHOUT LEAVE TO AMEND Magdalina Kalincheva (“Plaintiff”) seeks to proceed pro se and in forma pauperis with an 17 18 action against Jesse Neubarth (“Defendant”). Plaintiff initiated this action by filing complaint a motion 19 to proceed in forma pauperis. (Docs. 1, 2.) Because Plaintiff is unable to state claim upon which relief 20 may be granted, it is recommended that Plaintiff’s motion to proceed in forma pauperis be DENIED 21 and the complaint be DISMISSED with leave to amend. 22 I. 23 Motion to Proceed In Forma Pauperis As a general rule, all parties instituting any civil action, suit or proceeding in a United States 24 District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the 25 commencement of an action “without prepayment of fees and costs of security therefor, by a person 26 who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” 28 27 U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if 28 leave to proceed in forma pauperis (“IFP”) is granted by the Court. See Rodriguez v. Cook, 169 F.3d 1 1 1178, 1177 (9th Cir. 1999). The Ninth Circuit has held “permission to proceed in forma pauperis is itself a matter of 2 3 privilege and not a right; denial of an informa pauperis status does not violate the applicant’s right to 4 due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citing Weller v. Dickson, 314 5 F.2d 598, 600 (9th Cir. 1963)). In addition, the Court has broad discretion to grant or deny a motion to 6 proceed IFP. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Weller, 314 F.2d at 600-01. In 7 making a determination, the court “must be careful to avoid construing the statute so narrowly that a 8 litigant is presented with a Hobson’s choice between eschewing a potentially meritorious claim or 9 foregoing life’s plain necessities.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984). Here, the Court recommends Plaintiff’s application to proceed be denied because, as discussed 10 11 below, the complaint fails to state a meritorious claim upon which relief may be granted.1 See 28 12 U.S.C.§ 1915(e)(2). 13 II. Screening Requirement 14 When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, and 15 shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff has filed numerous lawsuits in this district, and others throughout the country, against Jessie Neubarth, each of which have been dismissed for failure to state a cognizable claim upon which relief may be granted and/or lack of jurisdiction. See, e.g., Kalincheva v. Neubarth, Case No. 2:13-cv-1601-TLN-DAD, 2013 WL 5493407 (E.D. Cal. Oct. 2, 2013) (finding Plaintiff raised essentially the same allegations against Neubarth in a prior action that was dismissed with prejudice, and the doctrine of res judicata barred her claims); Kalincheva v. Neubarth, Case No. 2:12-cv-2231-JAM-DAD, 2012 WL 5328616 (E.D. Cal. Oct. 26, 2012) (denying Plaintiff’s motion to proceed in forma pauperis upon finding she failed to state a claim upon which relief may be granted by the Court); Kalincheva v. Neubarth, 2014 WL 1240040 (N.Dak. Dist. Mar. 25, 2014) (denying Plaintiff’s motion to proceed in forma pauperis and dismissing the complaint without leave to amend); Kalincheva v. Neubarth, 2014 WL 359381 (D. Minn. Feb. 3, 2014) (finding “Plaintiff’s complaint does not set forth a coherent set of factual allegations that could support a cause of action” and the court lacked jurisdiction over the complaint); Kalincheva v. Neubarth, 2013 WL 2445360 (S.D. Cal. June 4, 2013) (dismissing the complaint without leave to amend and denying Plaintiff’s motion to proceed in forma pauperis because Plaintiff did not show she was “entitled to relief in federal court under any decipherable or cognizable legal theory); Kalincheva v. Neubarth, 2013 WL 6170879 (N.D. Ind. Nov. 21, 2013) (denying Plaintiff’s motion to proceed in forma pauperis upon finding the court lacked jurisdiction and “the complaint [was] frivolous and fail[ed] to state claim upon which relief can be granted”). Notably, Plaintiff has been warned by another district court that she would be subject to monetary sanctions for any additional frivolous filings. Kalincheva v. Neubarth, 2013 WL 5524815 (D.Mass. Oct. 2, 2013) (finding it was “crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile,” and warning Plaintiff that she would be subject to monetary sanctions if she submitted any additional frivolous or unreasonable pleadings). Therefore, Plaintiff is warned that the filing of another action lacking merit may result in the Court ordering Plaintiff to show cause why she should not be declared a vexatious litigant and pre-filing restrictions be imposed. See De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990). 2 1 action or appeal is “frivolous, malicious or fails to state a claim on which relief may be granted; or . . . 2 seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 1915(e)(2). A 3 claim is frivolous “when the facts alleged arise to the level of the irrational or the wholly incredible, 4 whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 5 504 U.S. 25, 32-33 (1992). 6 III. 7 Pleading Standards General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A 8 pleading stating a claim for relief must include a statement affirming the court’s jurisdiction, “a short 9 and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the 10 relief sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 11 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to “less 12 stringent standards” than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972). 13 A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and 14 succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). Further, a 15 plaintiff must identify the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 16 U.S. 506, 512 (2002). The Supreme Court noted, 19 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. 20 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). 21 Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 22 266, 268 (9th Cir. 1982). The Court clarified further, 17 18 23 24 25 26 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ 27 28 Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should 3 1 assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal 2 conclusions in the pleading are not entitled to the same assumption of truth. Id. 3 The Court has a duty to dismiss a case at any time it determines an action fails to state a claim, 4 “notwithstanding any filing fee that may have been paid.” 28 U.S.C. § 1915e(2). Accordingly, a court 5 “may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a 6 claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal 7 Practice and Procedure, § 1357 at 593 (1963)). However, leave to amend a complaint may be granted 8 to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 9 1122, 1127-28 (9th Cir. 2000) (en banc). 10 11 IV. Discussion and Analysis2 Plaintiff alleges she is an immigrant from Bulgaria, where she was married to Defendant. 12 Plaintiff alleges Defendant is liable for a breach of contract, based upon an Affidavit of Support filed 13 with the American Embassy in 1991. (Doc. 1 at 1-2.) In addition, Plaintiff appears to be dissatisfied 14 with the terms of their divorce. Plaintiff asserts Defendant failed to provide for her basic needs and 15 stole “everything from her.” (Id. at 5.) For example, Plaintiff alleges Defendant has “deliberately 16 stolen her last Six years fertility Time and Health,” as well as her work history book and medical 17 diploma. (Id. at 8, 29.) 18 A. 19 The district court is a court of limited jurisdiction, and is empowered only to hear disputes The Court lacks subject matter jurisdiction. 20 “authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 21 377 (1994); Exxon Mobil Corp v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Pursuant to 28 22 U.S.C. § 1331, the district court has jurisdiction over civil actions arising under federal laws. The Ninth 23 Circuit explained that an action “arises under” federal law “where federal law creates the cause of 24 action or where the vindication of a right under state law necessarily turn[s] on some construction of 25 federal law.” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (citation, 26 27 28 2 Plaintiff initiated this action by filing a complaint in the Northern District of California. (Doc. 1.) Since that time, Plaintiff filed and lodged amended complaints without the permission of the Court, but the allegations appear substantively the same. For purposes of this screening Order, the Court refers only to Plaintiff’s initial complaint. 4 1 internal quotation marks omitted). The presence of subject matter jurisdiction is governed by the “well- 2 pleaded complaint rule,” under which the Court has jurisdiction “only when a federal question is 3 presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 4 U.S. 386, 392 (1987). Although Plaintiff cites several federal statutes, her sole claim is for a breach of 5 contract, which arises under state law. Further, the Court declines “to hear disputes which would 6 deeply involve . . . adjudicating domestic matters.” Thompson v. Thompson, 798 F.2d 1547, 1558 (9th 7 Cir. 1986.) 8 B. 9 Plaintiff appears to complain of the terms of her divorce agreement, but the Court may not grant Relief may not be granted under the Rooker-Feldman doctrine. 10 relief from its terms. Under the Rooker-Feldman doctrine, a party may not seek appellate review in 11 federal court of a decision made by a state court. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); 12 D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). The Ninth Circuit explained, 13 14 15 Typically, the Rooker-Feldman doctrine bars federal courts from exercising subjectmatter jurisdiction over a proceeding in which a party losing in state court seeks what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the losers’ federal rights. 16 Doe v. Mann, 415 F.3d 1038, 1041-42 (9th Cir. 2005); see also Exxon Mobil Corp. v. Saudi Basic 17 Indus. Corp., 544 U.S. 280, 284 (2005) (the Rooker-Feldman doctrine precludes a district court from 18 appellate review of “cases brought by state-court losers complaining of injuries caused by state-court 19 judgments rendered before the district court proceeding commenced . . .”). Accordingly, the district 20 court lacks jurisdiction over “claims . . . ‘inextricably intertwined’ with the state court’s decision such 21 that the adjudication of the federal claims would undercut the state ruling.” Bianchi v. Rylaarsdam, 334 22 F.3d 895, 898 (9th Cir. 2003) (citing Feldman, 460 U.S. at 483, 485)). 23 Significantly, “[a] number of courts have held that the Rooker-Feldman doctrine . . . bars 24 federal court review of final state divorce decrees.” See In re Schwartz, 409 B.R. 240, 248 (1st Cir. 25 BAP 2008) (citing Davis v. United States, 499 F.3d 590, 595 (6th Cir. 2007)); see also Ignacio v. 26 Judges of U.S. Court of Appeals, 453 F.3d 1160, 1165-66 (9th Cir. 2006) (affirming the district court’s 27 dismissal of the case “because the complaint is nothing more than another attack on the California 28 superior court’s determination in [the plaintiff’s] domestic case”). Accordingly, the Court is unable to 5 1 grant Plaintiff relief from the divorce decree under the Rooker-Feldman doctrine. 2 C. The doctrine of res judicata bars Plaintiff from litigating her claim. 3 Under the doctrine of res judicata, “a final judgment on the merits bars further claims by 4 parties or their privies based on the same cause of action.” Montana v. United States, 440 U.S. 147, 5 153 (1979). Thus, a claimant may not seek to re-litigate claims decided previously on their merits. 6 Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). In addition, res judicata 7 “precludes the litigation of ‘any claims that were raised or could have been raised’ in a previous 8 lawsuit.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). The doctrine 9 is applicable “whenever there is “(1) an identity of claims, (2) a final judgment on the merits, and (3) 10 privity between parties.” Stratosphere Litig. L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 11 (9th Cir. 2002) (citation omitted). Notably, “[i]f a court is on notice that it has previously decided the 12 issue presented, the court may dismiss the action sua sponte, even though the defense has not been 13 raised.” Arizona v. California, 530 U.S. 392, 416 (2000). Here, because the Court has evaluated 14 Plaintiff’s claims against Defendant in Kalincheva v. Neubarth, Case No. 2:13-cv-01601-TLN-DAD 15 and Case No. 2:12-cv-2231-JAM-DAD, it is necessary to determine whether the doctrine of res 16 judicata bars Plaintiff from proceeding in this action for a breach of contract. 17 Significantly, Plaintiff raises the factual allegations and the same causes of action as those 18 previously adjudicated.3 Previously, the Court observed: “[I]t appears that the thrust of plaintiff’s 19 complaint is her allegation that defendant Neubarth signed an immigration form imposing on the 20 defendant certain financial obligations and guaranteeing that he would provide plaintiff with a certain 21 level of financial support.” (Case No. 2:13-cv-01601-TLN-DAD, Doc.16 at 3.) However, the Court 22 reviewed the form and found it did “not create legally enforceable contractual obligations.” (Id.) 23 (citing, e.g., Cobb v. Cobb, 2012 WL 2620524 at *3 (E.D. Cal. July 5, 2012)); see also Cheshire v. 24 25 26 27 28 3 The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The Court’s docket is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). Therefore, judicial notice is taken of the complaints and orders filed in Kalincheva v. Neubarth, Case Nos. 2:13-cv01061-TLN-DAD and 2:12-cv-2231-JAM-DAD. 6 1 Cheshire, 2006 WL 1208010 at *2 (M.D. Fla. May 4, 2006) (federal courts have “consistently” 2 determined an Affidavit of Support “is not a legally enforceable contract against a sponsor by a 3 sponsored immigrant”). In Case No. 2:12-cv-2231-JAM-DAD, the Court dismissed Plaintiff’s 4 complaint without leave to amend for failure to state a claim. Because, the Court “analyze[d] the facts 5 and legal claims in the complaint to determine if the plaintiff has alleged a cause of action,” the 6 “dismissal for failure to state a claim” is considered a judgment on the merits to which the doctrine of 7 res judicata applies. Stewart v. United States Bancorp, 297 F.3d 953, 957 (9th Cir. 2002); see also 8 Federated Dep’t Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981). Accordingly, the Court finds 9 Plaintiff’s claims are barred by the doctrine of res judicata. 10 V. 11 Findings and Recommendations A plaintiff should be granted leave to amend when the deficiencies of the complaint can be 12 cured by amendment. Lopez, 203 F.3d at 1130. In light of the numerous deficiencies identified above, 13 Plaintiff is unable to state a claim upon which relief can be granted. Accordingly, leave to amend to 14 amend would be futile. Id. (dismissal of a pro se complaint for failure to state a claim is proper where 15 it is obvious that the plaintiff cannot prevail on the facts that she has alleged and that an opportunity to 16 amend would be futile); see also Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 17 Based upon the foregoing IT IS HEREBY RECOMMENDED: 18 1. Plaintiff’s motions to proceed in forma pauperis (Docs. 2, 18) be DENIED; 19 2. Plaintiff’s Complaint be DISMISSED WITHOUT LEAVE TO AMEND; 20 3. All remaining motions be terminated as moot; and 21 4. The Clerk of Court be DIRECTED to close the action. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 24 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 25 days after being served with these findings and recommendations, Plaintiff may file written objections 26 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 27 Recommendations.” 28 /// 7 1 2 Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: October 9, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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