(PS) Roy v. USA, No. 2:2009cv03026 - Document 3 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 12/22/09 recommending that Plaintiff's 2 October 29, 2009 application to proceed in forma pauperis ( Doc No 1 at pages electronically numbered 7 through 10) be denied; an d this action be dismissed with prejudice for lack of subject matter jurisdiction. Within twenty-one (21) days after these findings and recommendations are served by the Clerk of the Court, plaintiff may file written objections with the court. (Duong, D) Modified on 12/23/2009 (Duong, D).
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(PS) Roy v. USA Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KAMAL K. ROY, 11 Plaintiff, 12 13 14 15 16 No. 2:09-cv-3026 LKK DAD PS vs. USA, FINDINGS AND RECOMMENDATIONS Defendant. / Kamal K. Roy, a New York resident proceeding pro se, has filed a collection of 58 17 pages that have been liberally construed as a civil complaint. The collection does not bear a 18 proper caption, and the court has found it necessary to derive the names of the parties from the 19 civil cover sheet included in the filing. Also included in plaintiff’s filing is an application to 20 proceed in forma pauperis, presented on a form utilized by the United States District Court for 21 the District of Colorado. The proceeding has been referred to the undersigned in accordance with 22 Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 23 A filing fee of $350.00 is required to commence a civil action in a federal district 24 court. 28 U.S.C. § 1914(a). The court may authorize the commencement of an action without 25 prepayment of fees or security therefor by a litigant who submits an affidavit demonstrating 26 inability to pay. 28 U.S.C. § 1915(a). Here, the affidavit submitted by plaintiff indicates that he 1 Dockets.Justia.com 1 is a “part disabled” senior citizen whose income consists of SSI. (Doc. 1 at page electronically 2 numbered 8.) 3 Although plaintiff’s in forma pauperis application appears to demonstrate inability 4 to pay the filing fee, the determination that a plaintiff is eligible to proceed in forma pauperis 5 does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is required 6 to dismiss an in forma pauperis case at any time if the court determines that the allegation of 7 poverty is untrue or that the action is frivolous or malicious, fails to state a claim on which relief 8 may be granted, or seeks monetary relief against an immune defendant. 9 A case is frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 11 699 (9th Cir. 1990). Under this standard, a court must dismiss a claim as frivolous where it is 12 based on an indisputably meritless legal theory or where the factual contentions are clearly 13 baseless. See Neitzke, 490 U.S. at 327; see also 28 U.S.C. § 1915(e). 14 To state a claim on which relief may be granted, the plaintiff must allege “enough 15 facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 16 U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court 17 accepts as true the material allegations in the complaint and construes the allegations in the light 18 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. 19 Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 20 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 21 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court is not required to 22 accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. 23 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 24 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 25 complaint must give the defendants fair notice of the plaintiff’s claims and must allege facts that 26 state the elements of the claims plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 2 1 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The plaintiff must allege with at 2 least some degree of particularity overt acts which the defendants engaged in that support the 3 plaintiff’s claims. 733 F.2d at 649. 4 The Federal Rules of Civil Procedure also require that a pleading contain “a short 5 and plain statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). Such a 6 statement is required because federal courts, as courts of limited jurisdiction, may adjudicate only 7 those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 8 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992).1 “Federal courts are presumed to 9 lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 4 10 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 11 546 (1986)). Lack of subject matter jurisdiction may be raised by the court at any time during the 12 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 13 1996). The burden of establishing jurisdiction rests upon the party asserting jurisdiction. 14 Kokkonen, 511 U.S. at 377. 15 Plaintiff’s pleading consists of numerous pages filled with random scribblings 16 scattered across them. Some pages are copies of documents on which plaintiff has scrawled 17 various letters, numbers, words, and sentence fragments. In the civil cover sheet referenced 18 supra, plaintiff identifies defendants as “#1 To Whom It May Concern in USA et al, #2 Rev Dr 19 K. KK Roy, #3 Nobel Peace Prize Norwegian, #4 BH Obama.” (Compl., page electronically 20 numbered 3.) In the section titled “Basis of Jurisdiction,” plaintiff has checked boxes indicating 21 jurisdiction based on “U.S. Government Defendant” and “Federal Question (U.S. Government 22 Not a Party).” He has marked boxes indicating that the nature of his suit is “Other Civil Rights” 23 and his cause of action is “civil rights violations,” for which he seeks “60 million US $.” 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; Ankenbrandt v. Richards, 504 U.S. 689, 697-99 (1992). 3 1 The court is unable to discern in plaintiff’s filing any statement that can be 2 construed as jurisdictional or any allegations that state a cognizable federal claim against any 3 person or entity within the jurisdiction of this court. It is impossible to summarize plaintiff’s 4 allegations, as no comprehensible statements can be found in plaintiff’s filing. 5 It appears that this court lacks subject matter jurisdiction over this action. See 6 Bell v. Hood, 327 U.S. 678, 682-83 (1946) (recognizing that a claim is subject to dismissal for 7 want of jurisdiction where it is “wholly insubstantial and frivolous” and so patently without merit 8 as to justify dismissal for lack of jurisdiction ); Hagans v. Lavine, 415 U.S. 528, 543 (1974) 9 (acknowledging that a claim may be dismissed for lack of jurisdiction if it is “so insubstantial, 10 implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy 11 within the jurisdiction of the District Court”). See also Franklin v. Murphy, 745 F.2d 1221, 1227 12 n.6 (9th Cir. 1984) (holding that even “[a] paid complaint that is ‘obviously frivolous’ does not 13 confer federal subject matter jurisdiction . . . and may be dismissed sua sponte before service of 14 process.”). 15 The court notes that among the documents plaintiff has used for writing paper is a 16 multi-page PACER search result showing that as of May 20, 2009, plaintiff had filed over a 17 hundred cases in federal courts across the nation. The records of the United States District Court 18 for the Eastern District of California reveal that plaintiff has filed two previous cases in this 19 court.2 On August 13, 2007, Kamal K. Roy filed Roy v. Unknown, 2:07-cv-1665 MCE GGH PS, 20 a case in which the defendants could not be discerned from plaintiff’s 166-page pleading. The 21 case was dismissed on May 2, 2008, due to plaintiff’s failure to comply with a court order 22 requiring him to file a properly completed in forma pauperis application on the form provided by 23 ///// 24 2 25 26 A court may take judicial notice of its own files and of documents filed in other courts. Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,442 F.3d 741, 746 n.6 (9th Cir. 2006); BurbankGlendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998); Hott v. City of San Jose, 92 F. Supp. 2d 996, 998 (N.D. Cal. 2000). 4 1 the court. On October 24, 2008, Kamal K. Roy filed Roy v. USA Government, 2:08-cv-2537 2 GEB KJM PS. In screening plaintiff’s pleading, Magistrate Judge Mueller observed that 3 [t]he complaint consists of 38 pages, some of which are jotted handwritten notes of what appear to be random thoughts, rather than an attempt to state a cause of action. There is no discernible theme running through the notes, other than it appears that plaintiff is complaining about the political process and is demanding $49.8 million dollars in “matching funds.” On page seventeen of the complaint, there is an order from the United States District Court for the Eastern District of New York indicating that plaintiff is prone to filing vexatious and frivolous pleadings. Because plaintiff presently resides in New York and there is no apparent connection between the allegations of the complaint and the Eastern District of California, plaintiff’s choice of venue appears random and is dubious, at best. 4 5 6 7 8 9 10 Order filed in 2:08-cv-2537 GEB KJM PS on Nov. 17, 2008, at 2. Although plaintiff’s 2008 11 complaint was dismissed with leave to amend, plaintiff did not file an amended complaint or 12 respond to the court’s November 17, 2008 order in any manner. The 2008 case was dismissed on 13 March 10, 2009 due to plaintiff’s failure to file an amended complaint. 14 In light of the severe deficiencies of plaintiff’s current pleading and his past 15 failure to cure similar deficiencies in response to court orders in prior cases in this court, the 16 undersigned finds that it would be futile to grant plaintiff leave to amend the complaint in this 17 action. See California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 18 (9th Cir. 1988) (“Valid reasons for denying leave to amend include undue delay, bad faith, 19 prejudice, and futility.”); Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 20 1276, 1293 (9th Cir. 1983) (holding that, while leave to amend shall be freely given, the court 21 does not have to allow futile amendments). The undersigned will therefore recommend that 22 plaintiff’s in forma pauperis application be denied and that this action be dismissed with 23 prejudice for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). 24 ///// 25 ///// 26 ///// 5 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Plaintiff’s October 29, 2009 application to proceed in forma pauperis (Doc. 3 No. 1 at pages electronically numbered 7 through 10) be denied; and 4 2. This action be dismissed with prejudice for lack of subject matter jurisdiction. 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 twenty-one (21) days after these findings and recommendations are served by the Clerk of the 8 Court, plaintiff may file written objections with the court. A document containing objections 9 must be titled “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 10 advised that failure to file objections within the specified time may waive the right to appeal the 11 District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: December 22, 2009. 13 14 15 16 DAD:kw Ddad1\orders.prose\roy 3026.f&r.dsm 17 18 19 20 21 22 23 24 25 26 6
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