-KJN (PS) Brooks v. Legislative Bill Room, No. 2:2010cv00379 - Document 12 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/28/2011 recommending that 10 Amended Prisoner Civil Rights Complaint filed by Charlie E. Brooks be dismissed with prejudice for failure to allege a proper basis for this court's federal subject matter jurisdiction; and Clerk be directed to close this case. Matter referred to Judge Kimberly J. Mueller. Objections may be filed w/i 14 days from the date of these findings and recommendations.(Waggoner, D)

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-KJN (PS) Brooks v. Legislative Bill Room Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHARLIE BROOKS 11 12 13 Plaintiff, No. 2:10-cv-00379 FCD KJN PS vs. LEGISLATIVE BILL ROOM 14 Defendant. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff, a California state prisoner, is proceeding in forma pauperis and without 17 counsel. Plaintiff filed a complaint in the Northern District of California on February 9, 2009, 18 alleging a violation of the Freedom of Information Act based upon the California Legislative Bill 19 Room’s alleged failure to send him copies of certain senate and assembly bills upon request. 20 (Dkt. No. 1.) For the reasons stated below and pursuant to the court’s screening obligation stated 21 in 28 U.S.C. § 1915(e)(2), the undersigned recommends that plaintiff’s amended complaint be 22 dismissed with prejudice for failure to allege a proper basis for this court’s subject matter 23 jurisdiction. 24 Because plaintiff is a prisoner seeking relief against a governmental entity or 25 officer or employee of a governmental entity, the court screened plaintiff’s original complaint 26 pursuant to 28 U.S.C. § 1915A(a). In the court’s order of May 24, 2010 (the “Order”), the court 1 Dockets.Justia.com 1 dismissed the complaint with leave to amend after finding that it failed to assert any basis for 2 subject matter jurisdiction. (Order, Dkt. No. 7.) 3 As to the existence of subject matter jurisdiction based upon a “federal question,” 4 the Order explained that the Freedom of Information Act (“FOIA”) is a federal law requiring 5 federal agencies to disclose information upon request unless such information is exempt from 6 disclosure. (Order, Dkt. No. 7 (citing 5 U.S.C. § 552; Oregon Natural Desert Ass’n v. Locke, 7 572 F.3d 610, 614 (9th Cir. 2009).) The Order explained that plaintiff did not properly allege a 8 FOIA violation because the FOIA does not apply to state agencies such as California’s 9 Legislative Bill Room. (Id. (citing Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 484 10 (2nd Cir. 1999); Mamarella v. County of Westchester, 898 F. Supp. 236, 237 (S.D.N.Y. 1995)).) 11 Thus, as the Order explained, plaintiff did not plead the basis for federal question jurisdiction, 12 and the court concluded that subject matter jurisdiction could not be premised on that ground. 13 (Id.) 14 As to the existence of diversity jurisdiction, the Order explained that a federal 15 court’s authority to hear cases in “diversity” is established by 28 U.S.C. § 1332. (Id.) The Order 16 explained that, to properly assert diversity jurisdiction, the plaintiff must allege “complete 17 diversity” between the plaintiff and the Legislative Bill Room. (Id. at 5-6.) The Order noted 18 that, on the facts pleaded within the complaint, both plaintiff and the Legislative Bill Room 19 appear to be California residents. (Id.) The Order explained that, therefore, plaintiff had failed to 20 plead the basis for diversity jurisdiction and thus that subject matter jurisdiction could not be 21 premised on that ground. (Id.) 22 The Order gave plaintiff the opportunity to file an amended complaint to properly 23 allege a basis for either federal question or diversity jurisdiction. (Id.) In response to the Order, 24 the plaintiff filed a document captioned “AMENDED COMPLAINT.” (Dkt. No. 10.) However, 25 the plaintiff failed to make any material changes to the substance of his pleading. (Compare Dkt. 26 No. 1 with Dkt. No. 10.) Indeed, the documents are substantively identical. Because plaintiff’s 2 1 amended complaint is substantively identical to his original complaint, it too fails to state a basis 2 for subject matter jurisdiction. 3 As Plaintiff has received the opportunity to amend his pleading but has been 4 unable to remedy the shortcomings described above, the undersigned remains unable to 5 determine a jurisdictional basis for this action.1 (Compare Dkt. Nos. 1 & 10.) Accordingly, the 6 undersigned recommends that plaintiff’s amended complaint be dismissed with prejudice, 7 pursuant to the court’s screening obligation stated in 28 U.S.C. § 1915(e)(2), for failure to allege 8 a proper basis for this court’s subject matter jurisdiction. 9 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 10 11 1. Plaintiff’s complaint be dismissed with prejudice for failure to allege a proper basis for this court’s federal subject matter jurisdiction; and 12 2. The Clerk of the Court be directed to close this case. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 15 days after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). 17 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 18 Recommendations.” Any response to the objections shall be filed with the court and served on 19 all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). 20 //// 21 //// 22 //// 23 24 25 1 As noted in the prior Order, plaintiff may be able to assert a state law claim under the California Public Records Act. See Cal. Govt. Code §§ 6253 et seq. (permitting inspection under certain conditions of California state or local agency record). However, such claim is a state law rather than federal law claim, and plaintiff would have to allege it in state court. 26 3 1 Failure to file objections within the specified time may waive the right to appeal the District 2 Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 3 1153, 1156-57 (9th Cir. 1991). 4 DATED: January 28, 2011 5 6 7 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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