(PS)Dorsey v. Ricci et al, No. 2:2018cv01256 - Document 3 (E.D. Cal. 2018)

Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/7/2018 RECOMMENDING that the action be dismissed without prejudice for lack of subject matter jurisdiction; Plaintiff's 2 motion to proceed in forma paupe ris in this court be denied without prejudice as moot; the Clerk of Court be directed to close this case; IT IS ALSO ORDERED that all pleading, discovery, and motion practice in this action are STAYED pending resolution of the findings and recommendations; Referred to Judge John A. Mendez; Objections due within 14 days after being served with these F & R's. (Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 TAMRA L. DORSEY a/k/a TAMRA L. MECUM DORSEY 13 14 15 Plaintiff, v. No. 2:18-cv-1256-JAM-KJN PS ORDER AND FINDINGS AND RECOMMENDATIONS GARY RICCI, et al., 16 17 Defendants. 18 19 20 21 Plaintiff Tamra L. Dorsey, proceeding without counsel, commenced this action and requested leave to proceed in forma pauperis. (ECF Nos. 1, 2.) A federal court has an independent duty to assess whether federal subject matter 22 jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. 23 Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty 24 to establish subject matter jurisdiction over the removed action sua sponte, whether the parties 25 raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). 26 The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject 27 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original 28 jurisdiction over a civil action when: (1) a federal question is presented in an action “arising 1 1 under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of 2 citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). 3 Liberally construed, plaintiff’s complaint alleges that she obtained cash bail from 4 Sacramento Bail Bonds around December 9, 2016, and that the related criminal charges were 5 ultimately dropped. Plaintiff acknowledges that she still owes money to Sacramento Bail Bonds, 6 but claims that she never put her home up for collateral. Nevertheless, according to plaintiff, 7 Sacramento Bail Bonds and Placer Foreclosure Inc. have been attempting to foreclose on 8 plaintiff’s home by purportedly offering false and fraudulent documents, seals, and records. 9 Plaintiff names as defendants Pete Lindgren, a notary and bail bond agent at Sacramento Bail 10 Bonds; Gary Ricci, the owner of Sacramento Bail Bonds; and Shannon Winford, an agent of 11 Placer Foreclosure Inc., who appears to be the trustee sale officer under a deed of trust 12 purportedly related to plaintiff’s bail loan. (See generally ECF No. 1.) 13 The court lacks federal question jurisdiction over this action. Although plaintiff’s 14 complaint references violations of certain federal criminal statutes, plaintiff, as a private citizen, 15 does not have standing to prosecute violations of federal criminal statutes. Furthermore, to the 16 extent that plaintiff attempts to state a claim for violation of her constitutional rights under 42 17 U.S.C. § 1983, such as alleged deprivation of property without due process, such a claim is not 18 cognizable here, because defendants are not state actors. See Franklin v. Fox, 312 F.3d 423, 444 19 (9th Cir. 2002). Finally, to the extent that plaintiff attempts to state a claim for wrongful 20 foreclosure, that is a state law claim that should be pursued in state court. 21 22 The court also plainly lacks federal diversity of citizenship jurisdiction, because plaintiff and all defendants are citizens of California. 23 Therefore, the court lacks subject matter jurisdiction over the action and recommends that 24 the case be dismissed. However, such dismissal should be without prejudice, allowing plaintiff to 25 pursue any potential claims in state court. 26 Accordingly, IT IS HEREBY RECOMMENDED that: 27 1. The action be dismissed without prejudice for lack of subject matter jurisdiction. 28 2. Plaintiff’s motion to proceed in forma pauperis in this court (ECF No. 2) be denied 2 1 without prejudice as moot. 2 3. The Clerk of Court be directed to close this case. 3 In light of those recommendations, IT IS ALSO ORDERED that all pleading, discovery, 4 and motion practice in this action are STAYED pending resolution of the findings and 5 recommendations. With the exception of objections to the findings and recommendations, and 6 non-frivolous motions for emergency relief, the court will not entertain or respond to any motions 7 or filings until the findings and recommendations are resolved. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 10 days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 13 shall be served on all parties and filed with the court within fourteen (14) days after service of the 14 objections. The parties are advised that failure to file objections within the specified time may 15 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 16 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 17 18 IT IS SO ORDERED AND RECOMMENDED. Dated: June 7, 2018 19 20 21 22 23 24 25 26 27 28 3

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