(PS) Mesnaoui v. Christopher, et al.,, No. 2:2010cv01129 - Document 8 (E.D. Cal. 2010)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 7/8/10 ORDERING that plaintiff's Motions 2 5 for leave to proceed in forma pauperis are granted; and RECOMMENDING that this action be dismissed for lack of subject matter jurisdiction. Referred to Judge Garland E. Burrell, Jr; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
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(PS) Mesnaoui v. Christopher, et al., Doc. 8 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 HICHAM MESNAOUI, 10 Plaintiff, 11 12 13 vs. No. CIV. S-10-1129 GEB GGH PS BERGAUST CHRISTOPHER, et al., Defendants. ORDER AND FINDINGS AND 14 15 RECOMMENDATIONS / 16 Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma 17 pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 18 72-302(21), pursuant to 28 U.S.C. § 636(b)(1). 19 20 Plaintiff has now submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted. 21 Plaintiff was advised in this court’s previous order of the defects in his complaint. 22 Plaintiff has not cured those defects against the consular defendants with his amended complaint. 23 Plaintiff has also added Maryam Abdrahman, his wife and mother of his allegedly kidnaped 24 child, as a defendant in his amended complaint. 25 26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 1 Dockets.Justia.com 1 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 5 Cir. 1989); Franklin, 745 F.2d at 1227. 6 A complaint must contain more than a “formulaic recitation of the elements of a 7 cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 8 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 9 “The pleading must contain something more...than...a statement of facts that merely creates a 10 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 11 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 12 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 13 v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 14 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows 15 the court to draw the reasonable inference that the defendant is liable for the misconduct 16 alleged.” Id. 17 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 18 520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th 19 Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se 20 plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before 21 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. 22 Plaintiff was previously informed of the defects in his complaint, which have not 23 been cured in his amended complaint. Federal district courts are courts of limited jurisdiction. 24 U.S. Const. Art. III, § 1 provides that the judicial power of the United States is vested in the 25 Supreme Court, “and in such inferior Courts as the Congress may from time to time ordain and 26 establish.” Congress therefore confers jurisdiction upon federal district courts, as limited by U.S. 2 1 Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697-99, 112 S. Ct. 2206, 2212 2 (1992). Since federal courts are courts of limited jurisdiction, a case presumably lies outside the 3 jurisdiction of the federal courts unless proven otherwise. Kokkonen v. Guardian Life Ins. Co. of 4 America, 511 U.S. 375, 376-78, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994). Lack of 5 subject matter jurisdiction may be raised at any time by either party or by the court. See 6 Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 7 Fed. R. Civ. P. 8 sets forth general rules of pleading in the Federal Courts. 8 Complaints are required to set a forth (1) the grounds upon which the court’s jurisdiction rests, 9 (2) a short and plain statement of the claim showing entitlement to relief; and (3) a demand for 10 the relief plaintiff seeks. Rule 8 requires “sufficient allegations to put defendants fairly on notice 11 of the claims against them.” McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). The 12 complaint does not meet the first two requirements. 13 Plaintiff alleges that two U.S. Consulate officials in Morocco committed fraud in 14 issuing a passport with a falsified identification of his minor daughter, so that his wife could 15 abduct her and transport her from Morocco to the United States. There is no allegation of a basis 16 for this court’s jurisdiction. Although the court may have personal jurisdiction over both 17 defendant consulate employees if they are citizens of the United States and employed by the U.S. 18 government; see U.S. for Use of Garcia v. McAninch, 435 F. Supp. 240, 244 (D.C. N.Y. 1977); 19 plaintiff must allege the federal basis for the court’s subject matter jurisdiction. The complaint 20 alleges only negligence, fraud in the falsification of identification with respect to a passport, 21 conspiracy to kidnap, and “verbal assault,” all state law claims, but makes no claim against 22 defendants under the U.S. Constitution or federal laws.1 23 1 24 25 26 The statutes cited by plaintiff do not provide for remedies in this instance. 18 U.S.C. § 956 does not provide for a private right of action, but only for criminal prosecution by the government. See, e.g., Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th Cir.1999) (district court properly dismissed claims brought under the California Penal Code because the statutes do not create enforceable individual rights). 22 U.S.C. § 4807 only establishes a visa and passport security program in the Department of State. 28 U.S.C. § 137 addresses division of business 3 1 Plaintiff does not, for example, state a claim under the Federal Tort Claims Act, 2 20 U.S.C. § 2675, against the United States government;2 nor does he demonstrate entitlement to 3 a recognized Bivens-type remedy (Bivens v. Six Unknown Named Agents of Federal Bureau of 4 Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), authorizing a limited range of suits against 5 federal officials for violation of an individual’s federal constitutional rights). It is difficult to 6 understand how plaintiff, a resident of Morocco at the time of the allege tortious acts of consular 7 officials would be able to state claim under the Constitution of the United States. Rasul v. 8 Myers, 563 F.3d 527, 532 (n.5.) (D.D.C. 2009). 9 Plaintiff makes no possible claim against the United States under the Alien Tort 10 Statute, 28 U.S.C. § 1350, as the United States would be immune from suit. See Goldstar 11 (Panama) S.A. v. United States, 967 F.2d 965 (4th Cir. 1992). 12 In regard to plaintiffs’ wife who allegedly abducted their child, plaintiff claims 13 that she used fraud to obtain a United States passport under a false name in order to take their 14 child out of Morocco. Plaintiff has not stated a federal basis for subject matter jurisdiction 15 against this defendant. The Hague Convention and the International Child Abduction Remedies 16 Act (“ICARA”) would normally grant jurisdiction to a federal court sitting where the child is 17 physically located, in this case Carmichael. (Compl., Attach.) Nevertheless, ICARA can only be 18 implemented where both involved countries are signatories. 42 U.S.C. § 11601(b)(1); Sullivan 19 v. Sullivan, 2010 WL 227924 at *3 (D. Idaho Jan. 13, 2010). Morocco is not a signatory to the 20 Hague Convention. Www.visaus.com/hague.html. Therefore, this court has no jurisdiction. 21 Taveras v. Taveras, 397 F.Supp.2d 908, 910 (S.D. Ohio 2005) (when a child is taken from a non- 22 23 among district judges. 2 24 25 26 “Section 2675(a) establishes explicit prerequisites to the filing of suit against the Government in district court. It admits of no exceptions. . . . We are not allowed to proceed in the absence of fulfillment of the conditions merely because dismissal would visit a harsh result upon the plaintiff.” Vacek v. United States Postal Service, 447 F.3d 1248, 1250 (9th Cir. 2006) (internal citations omitted). Moreover, claims arising in a foreign country are expressly excluded from an FTCA action. 28 U.S.C. § 2680 (k). 4 1 2 3 4 5 6 7 8 9 signatory country to a signatory country, there is no remedy under Hague Convention). The court is not unsympathetic to plaintiff’s plight; however, federal court is not the proper forum to obtain the relief he seeks. Accordingly, IT IS HEREBY ORDERED that plaintiff's request for leave to proceed in forma pauperis is granted. 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 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 10 fourteen (14) days after being served with these findings and recommendations, any party may 11 file written objections with the court and serve a copy on all parties. Such a document should be 12 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 13 objections shall be served and filed within fourteen (14) days after service of the objections. The 14 parties are advised that failure to file objections within the specified time may waive the right to 15 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 DATED: July 8, 2010 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 17 GGH:076/Mesnaoui1129.fr.wpd 18 19 20 21 22 23 24 25 26 5
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