(PS) Johnson v. Bernstein, No. 2:2009cv03275 - Document 3 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be dismissed for lack of subject matter jurisdiction. Objections to F&R due within fourteen (14) days; signed by Magistrate Judge Gregory G. Hollows on 4/29/10. (Kaminski, H)
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(PS) Johnson v. Bernstein Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROY LEE JOHNSON, 11 12 13 14 Plaintiff, vs. ROBERT G. BERNSTEIN, Defendant. 15 16 No. CIV. S-09-3275 MCE GGH PS FINDINGS & RECOMMENDATIONS / Plaintiff, a former state prisoner proceeding pro se, has filed an action together 17 with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 18 proceeding was referred to this court by Local Rule 72-302(21), pursuant to 28 U.S.C. 19 § 636(b)(1). After plaintiff initiated this action, he was released from Solano County Jail. 20 Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). 21 Accordingly, the request to proceed in forma pauperis will be granted. 22 The determination that plaintiff may proceed in forma pauperis does not complete 23 the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case 24 at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 26 an immune defendant. 1 Dockets.Justia.com 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 3 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989); Franklin, 745 F.2d at 1227. 8 A complaint must contain more than a “formulaic recitation of the elements of a 9 cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 10 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 11 “The pleading must contain something more...than...a statement of facts that merely creates a 12 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 13 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 14 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 15 v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 16 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows 17 the court to draw the reasonable inference that the defendant is liable for the misconduct 18 alleged.” Id. 19 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 20 520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th 21 Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se 22 plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before 23 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. 24 The court is unable to determine a jurisdictional basis for this action. A federal 25 court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the 26 Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 2 1 S. Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1 provides that the judicial power of the United 2 States is vested in the Supreme Court, “and in such inferior Courts as the Congress may from 3 time to time ordain and establish.” Congress therefore confers jurisdiction upon federal district 4 courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697- 5 99, 112 S. Ct. 2206, 2212 (1992). Lack of subject matter jurisdiction may be raised at any time 6 by either party or by the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93 7 F.3d 593, 594-95 (9th Cir. 1996). 8 9 The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal question” and “diversity” jurisdiction, respectively. Statutes which regulate specific subject 10 matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J. 11 Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible 12 assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v. 13 Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1945). A federal claim which is so insubstantial as 14 to be patently without merit cannot serve as the basis for federal jurisdiction. See Hagans v. 15 Lavine, 415 U.S. 528, 587-38, 94 S. Ct. 1372, 1379-80 (1974). 16 For diversity jurisdiction pursuant to 28 U.S.C. § 1332, each plaintiff must be 17 diverse from each defendant, and the amount in controversy must exceed $75,000. For federal 18 question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a 19 federal law or the United States Constitution, (2) allege a “case or controversy” within the 20 meaning of Article III, section 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 21 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962). 22 The complaint alleges that defendant Bernstein, plaintiff’s former defense 23 attorney, was ineffective in representing him in his criminal trial. The allegations in the 24 complaint assert a claim for negligence only, which does not implicate federal law. Although 25 plaintiff refers to a Sixth Amendment violation, the entirety of his complaint alleges failures 26 which might amount to malpractice only, but do not implicate any federal violations. He seeks 3 1 damages for defendant’s deficient representation, and an injunction preventing this attorney from 2 duping future clients. 3 Simple reference to federal law does not create subject-matter jurisdiction. Avitts 4 v. Amoco Prod. Co., 53 F.3d 690, 694 (5th Cir.1995). Subject-matter jurisdiction is created only 5 by pleading a cause of action within the court’s original jurisdiction. Id. None of these matters 6 states a federal claim. It is plaintiff’s obligation to state the basis of the court’s jurisdiction in the 7 complaint, and plaintiff has not done so. 8 Furthermore, although plaintiff seeks $1 million in damages, he and the defendant 9 are not diverse. Both parties are residents of California. Therefore, plaintiff is informed that his 10 11 12 13 best course of action is to proceed in state court. In accordance with the above, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of subject matter jurisdiction. These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 15 fourteen (14) days after being served with these findings and recommendations, plaintiff may file 16 written objections with the court and serve a copy on all parties. Such a document should be 17 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 18 advised that failure to file objections within the specified time may waive the right to appeal the 19 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: April 29, 2010 21 /s/ Gregory G. Hollows 22 23 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE GGH:076/Johnson3275.fr.wpd 24 25 26 4
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