(PS) Ortiz v. Enforcement Tow et al, No. 2:2018cv02043 - Document 3 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/23/2018 RECOMMENDING that 2 Motion to Proceed IFP be denied; 1 Complaint be dismissed without prejudice; and this action be dismissed. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)
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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 RENE ORTIZ, 12 Plaintiff, 13 14 No. 2:18-cv-2043 MCE DB PS v. FINDINGS AND RECOMMENDATIONS ENFORCEMENT TOW, et al., 15 Defendants. 16 Plaintiff, Rene Ortiz, is proceeding in this action pro se. This matter was referred to the 17 18 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 20 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about the towing of plaintiff’s 21 vehicle. The court is required to screen complaints brought by parties proceeding in forma 22 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 25 below, the undersigned will recommend that plaintiff’s complaint be dismissed without prejudice. 26 I. 27 28 Plaintiff’s Application to Proceed In Forma Pauperis Plaintiff’s in forma pauperis application makes the financial showing required by 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 1 1 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 2 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 3 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 4 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 5 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 6 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 7 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 8 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 9 District Court to examine any application for leave to proceed in forma pauperis to determine 10 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 11 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 12 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 13 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 14 state a claim on which relief may be granted, or seeks monetary relief against an immune 15 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 16 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 17 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 18 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 19 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 20 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 21 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 22 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 23 true the material allegations in the complaint and construes the allegations in the light most 24 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 25 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 26 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 27 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 28 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 2 1 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 2 3 The minimum requirements for a civil complaint in federal court, as explained by Rule 8 of the Federal Rules of Civil Procedure (“Rules”), are as follows: 4 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. 5 6 7 Fed. R. Civ. P. 8(a). 8 II. 9 Plaintiff’s Complaint Jurisdiction is a threshold inquiry that must precede the adjudication of any case before 10 the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 11 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate 12 only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 13 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are presumed 14 to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 15 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 16 546 (1986)). 17 Lack of subject matter jurisdiction may be raised by the court at any time during the 18 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 19 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has 20 subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the 21 obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v. 22 Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court 23 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380. 24 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer 25 “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be 26 conferred by federal statutes regulating specific subject matter. “[T]he existence of federal 27 jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to 28 those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 3 1 1108, 1113 (9th Cir. 2000). District courts have diversity jurisdiction only over “all civil actions where the matter in 2 3 controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action 4 is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a 5 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are 6 additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different 7 States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be 8 a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss, 9 797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between 10 the parties-each defendant must be a citizen of a different state from each plaintiff.” In re 11 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). Plaintiff’s complaint asserts that the court has federal question jurisdiction over this 12 13 action.1 (Compl. (ECF No. 1) at 3.) In support of this assertion the complaint cites to a string of 14 alleged violations of plaintiff’s constitutional rights. (Id.) However, a litigant who complains of 15 a violation of a constitutional right does not have a cause of action directly under the United 16 States Constitution. Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (affirming that it is 42 17 U.S.C. § 1983 that provides a federal cause of action for the deprivation of rights secured by the 18 United States Constitution); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) 19 (explaining that 42 U.S.C. § 1983 was enacted to create a private cause of action for violations of 20 the United States Constitution); Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 21 (9th Cir. 1992) (“Plaintiff has no cause of action directly under the United States Constitution.”). 22 42 U.S.C. § 1983 provides that, 23 [e]very person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 24 25 26 27 28 //// 1 Plaintiff and defendants are alleged to be citizens of California. (Compl. (ECF No. 1) at 1-2.) Therefore, the court does not have diversity jurisdiction over this action. 4 Here, the complaint alleges that defendant Enforcement Tow, its employees “Driver NA,” 1 2 “Tora. T,” and owner “B. White . . . seized [plaintiff’s] personal property only for the purpose to 3 defraud and extort monies from” plaintiff. (Compl. (ECF No. 1) at 5.) Specifically, on January 8, 4 2018, an employee of defendant Enforcement Tow, towed plaintiff’s vehicle, accused plaintiff of 5 “altering . . . plates and address” of the vehicle, and towed the vehicle “without cause, a Warrant, 6 or legal authority to do so.” (Id.) “When, as here, the state has not compelled a private act—when the impetus and the 7 8 actors remain private—there is no state action.” Beyer v. Village of Ashwaubenon, 444 Fed. 9 Appx. 99, 101 (7th Cir. 2011). “A number of federal courts have held that towing companies and 10 employees, when acting independent from the police or other state officials, are not state actors 11 for the purposes of 42 U.S.C. § 1983.” Bugoni v. Charles, No. 2:10-CV-1173, 2012 WL 12 6214301, at *3 (S.D. Ohio Dec. 13, 2012). The complaint does not, and it appears cannot, allege 13 that the defendants were acting under color of state law. 14 The complaint also cites a string of alleged violations of federal criminal statutes. 15 (Compl. (ECF No. 1) at 3.) “These criminal provisions, however, provide no basis for civil 16 liability.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see also Jianjun Xie v. 17 Oakland Unified School Dist., No. C 12-2950 CRB, 2012 WL 5869707, at *5 (N.D. Cal. Nov. 19, 18 2012) (“Although Plaintiffs assert many causes of action through various federal criminal statutes 19 and California Penal Code provisions, no private right of action exists to enforce a criminal 20 statutory provision.”). Thus, plaintiff’s complaint fails to establish a basis for the court’s federal question 21 22 jurisdiction over this action. 23 III. 24 Leave to Amend For the reasons stated above, plaintiff’s complaint should be dismissed. The undersigned 25 has carefully considered whether plaintiff may amend the complaint to state a claim over which 26 the court would have subject matter jurisdiction. “Valid reasons for denying leave to amend 27 include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. 28 Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n 5 1 v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to 2 amend shall be freely given, the court does not have to allow futile amendments). 3 4 Here, given the defects noted above, the undersigned finds that granting plaintiff leave to amend would be futile. 5 CONCLUSION 6 Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that: 7 1. Plaintiff’s July 26, 2018 application to proceed in forma pauperis (ECF No. 2) be 8 9 denied; 2. Plaintiff’s July 26, 2018 complaint (ECF No. 1) be dismissed without prejudice; and 10 3. This action be dismissed. 11 These findings and recommendations will be submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 13 days after being served with these findings and recommendations, plaintiff may file written 14 objections with the court. A document containing objections should be titled “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may, under certain circumstances, waive the right to appeal 17 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 Dated: October 23, 2018 19 20 21 22 23 DLB:6 DB/orders/orders.pro se/ortiz2043.dwolta.f&rs 24 25 26 27 28 6
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