Wilburn v. Homando et al, No. 1:2018cv01152 - Document 6 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS as follows: The Court finds that Plaintiff fails to state any claim on which relief may be granted as the Complaint does not present any federal question that would invoke the Court's jurisdiction. Accordingly, the Court HEREBY RECOMMENDS that: 1) Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), this action be DISMISSED, with prejudice, based on Plaintiff's failure to state a claim on which relief may be granted; and 2) The Clerk of Court be directed to clos e this case. These findings and recommendations are submitted to Chief Judge Lawrence J. O'Neill. Within thirty (30) days after being served with these findings and recommendations, Plaintiff may file written objections with the court. Order signed by Magistrate Judge Erica P. Grosjean on 10/16/2018. (Rooney, M)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DEBORAH ANN WILBURN Plaintiff, 11 v. 12 13 14 MICK HOMANDO and SHARAN HOMANDO, Defendants. 15 Case No. 1:18-cv-01152-LJO-EPG FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM (ECF No. 1) OBJECTIONS, IF ANY, DUE WITHIN THIRTY (30) DAYS 16 17 18 I. BACKGROUND 19 On August 27, 2018, Deborah Ann Wilburn (“Plaintiff”), proceeding pro se and in 20 forma pauperis, commenced this action by filing a Complaint against Mick Homando and 21 Sharan or Sarah Homando (collectively, “Defendants”). (ECF No. 1.) Plaintiff states that the 22 Court has jurisdiction in this action because Defendants checked her social security, and both 23 “Social Security” and the Fresno County Police Department are aware. Plaintiff alleges that 24 Jimmy Homando, Rose Marie Diann, Charlan Gray, and Landia Gray, said that Mick Homando 25 and Sarah Homando ran a background check on Plaintiff’s social security and has given out her 26 information. Id. Plaintiff further alleges that Jimmy Homando and Mick Homando have asked 27 to buy her prescription cough syrup for $500.00. As relief, Plaintiff seeks a subpoena. Id. 28 \\\ 1 1 II. 2 SCREENING REQUIREMENT Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of an in forma pauperis 3 complaint to determine whether it “state[s] a claim on which relief may be granted,” is 4 “frivolous or malicious,” or “seek[s] monetary relief against a defendant who is immune from 5 such relief.” If the Court determines that the complaint fails to state a claim, it must dismiss the 6 complaint. Id. Leave to amend may be granted to the extent that the deficiencies of the 7 complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 8 1995). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 14 factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 15 556 U.S. at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as 16 true, legal conclusions are not. Id. at 678. 17 In determining whether a complaint states an actionable claim, the Court must accept 18 the allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 19 740 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, 20 Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s 21 favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be 22 held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 23 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally 24 construed after Iqbal). 25 III. DISCUSSION 26 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited 27 to that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant to 28 28 U.S.C. § 1331, federal courts have “original jurisdiction of all civil actions arising under the 2 1 Constitution, laws, or treaties of the United States.” “A case ‘arises under’ federal law either 2 where federal law creates the cause of action or where the vindication of a right under state law 3 necessarily turns on some construction of federal law.” Republican Party of Guam v. Gutierrez, 4 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd. 5 v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983) (citations omitted)). “The 6 presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint 7 rule,’ which provides that federal jurisdiction exists only when a federal question is presented 8 on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 9 386, 392 (1987). As explained by the United States Court of Appeals for the Ninth Circuit in 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Provincial Gov't of Marinduque v. Placer Dome, Inc.: Federal courts may exercise federal-question jurisdiction over an action in two situations. First, and most commonly, a federal court may exercise federal-question jurisdiction if a federal right or immunity is “‘an element, and an essential one, of the plaintiff's cause of action.’” Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 11, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (quoting Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). Thus, the federal question on which jurisdiction is premised cannot be supplied via a defense; rather, the federal question must “be disclosed upon the face of the complaint, unaided by the answer.” Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127–28, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974) (per curiam). Second, a federal court may have such jurisdiction if a state-law claim “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally-approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Such a federal issue must be “a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum.” Id. at 313, 125 S.Ct. 2363. 582 F.3d 1083, 1086–87 (9th Cir. 2009). Plaintiff states that her claims arise under federal law. She alleges that both “Social 27 Security” and the Fresno County Police Department are aware that Defendants have checked 28 her social security and have given out her person information. The only relief requested is the 3 1 issuance of a subpoena. Based on review of the documents attached to the complaint, Plaintiff 2 has complained to the police that individuals are harassing her by following her and speaking 3 on a horn all day long. (ECF No. 1 at 6-41). 4 Essentially, Plaintiff is alleging that private individuals are harassing her, and she has 5 notified the police of the harassment. These allegations do not implicate any federal law or 6 federal issue. And, Plaintiff does not identify any federal law or federal issue under which to 7 evaluate her claims. Thus, the Court is without jurisdiction to adjudicate this action. 8 Accordingly, Plaintiff fails to state a claim on which relief may be granted. 9 IV. 10 CONCLUSION AND RECOMMENDATIONS The Court finds that Plaintiff fails to state any claim on which relief may be granted as 11 the Complaint does not present any federal question that would invoke the Court’s jurisdiction. 12 Accordingly, the Court HEREBY RECOMMENDS that: 13 1. Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), this action be DISMISSED, with 14 prejudice, based on Plaintiff=s failure to state a claim on which relief may be 15 granted; and 16 17 2. The Clerk of Court be directed to close this case. These findings and recommendations are submitted to the district judge assigned to the 18 case, pursuant to the provisions of 28 U.S.C. ' 636(b)(l). Within thirty (30) days after being 19 served with these findings and recommendations, Plaintiff may file written objections with the 20 court. Such a document should be captioned, “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 22 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 23 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 26 IT IS SO ORDERED. Dated: October 16, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 27 28 4
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