(PS)EL v. Kelly ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO EL, No. 2:21–cv–53–JAM–KJN PS 12 Plaintiff, ORDER GRANTING IFP AND STAYING CASE; and 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS WITH PREJUDICE 14 CLINTON KELLY, et al., (ECF No. 1, 2) 15 Defendants. 16 17 Plaintiff, who proceeds in this action without counsel, requested leave to proceed in forma 18 pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) Plaintiff’s application in support of his 19 request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. 20 Accordingly, the court grants plaintiff’s request to proceed without paying the filing fee. 21 The determination that a plaintiff may proceed in forma pauperis does not complete the 22 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any 23 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 24 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 25 an immune defendant. For the reasons stated below, the court recommends the case be dismissed 26 with prejudice as legally frivolous. 27 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. 28 § 636(b)(1) for the issuance of findings and recommendations. See Local Rule 304. 1 Legal Standard 2 Federal courts have an independent duty to assess whether federal subject matter 3 jurisdiction exists. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 4 (9th Cir. 2004) (stating that “the district court had a duty to establish subject matter jurisdiction 5 over [an] action sua sponte, whether the parties raised the issue or not”); accord Rains v. Criterion 6 Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). The court must sua sponte dismiss the case if, at any 7 time, it determines that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). 8 Generally, federal courts have original jurisdiction over a civil action when: (1) a federal 9 question is presented in an action “arising under the Constitution, laws, or treaties of the United 10 States” or (2) there is complete diversity of citizenship and the amount in controversy exceeds 11 $75,000. See 28 U.S.C. §§ 1331, 1332(a). 12 However, the Supreme Court has held that federal courts lack subject matter jurisdiction 13 to consider claims that are “so insubstantial, implausible, foreclosed by prior decisions of this 14 court, or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. 15 v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998) (citations and internal quotations 16 omitted); Hagans v. Lavine, 415 U.S. 528, 537 (1974) (court lacks subject matter jurisdiction over 17 claims that are “essentially fictitious,” “obviously frivolous” or “obviously without merit”); see 18 also Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549-50 (9th Cir. 2018) (noting 19 that the “wholly insubstantial and frivolous” standard for dismissing claims operates under Rule 20 12(b)(1) for lack of federal question jurisdiction) (citing Franklin v. Murphy, 745 F.2d 1221, 21 1227 n.6 (9th Cir. 1984) (“A [] complaint that is ‘obviously frivolous’ does not confer federal 22 subject matter jurisdiction.”) (abrogated on other grounds)). A claim is legally frivolous when it 23 lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); 24 Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). 25 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 26 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear 27 that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma 28 pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll v. 1 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) superseded on other grounds by statute as stated in 2 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc); Franklin v. Murphy, 745 F.2d 1221, 3 1230 (9th Cir. 1984). However, leave to amend need not be granted when further amendment 4 would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 5 Analysis 6 Here, plaintiff has filed suit against the State of California, the Superior Court in Los 7 Angeles, the L.A. Sheriff’s Department and two named individuals. (ECF No. 1.) Plaintiff lists 8 several statutes arising under the criminal code, including 18 U.S.C. § 241-Conspiracy; 18 U.S.C. 9 § 242-Deprivation of Rights; 18 U.S.C. § 878-Extortion against Foreign Officials; and 18 U.S.C. 10 § 1001-Falsification of Documents. The complaint is mostly a collection of conclusory 11 statements and phrases with little meaning attached to each. Plaintiff’s attachments also appear 12 disconnected from any actual allegations. 13 The undersigned finds plaintiff’s complaint wholly frivolous. Plaintiff, as a private 14 citizen, has no authority to bring claims under criminal statutes. See Allen v. Gold Country 15 Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (no private right of action for violation of criminal 16 statutes). For these reasons, plaintiff’s complaint should be dismissed. Steel Co., 523 U.S. at 89. 17 Further, the record here shows that plaintiff would be unable to cure the above-mentioned 18 deficiencies through further amendment of the complaint, granting leave to amend would be 19 futile. Cahill, 80 F.3d at 339. 20 ORDER 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s motion to proceed in forma pauperis is GRANTED; 23 2. In light of the court’s recommendations and plaintiff’s frivolous filing, all pleading, 24 discovery, and motion practice in this action are stayed pending resolution of these 25 findings and recommendations. Other than objections to the findings and 26 recommendations, the court will not entertain or respond to any pleadings or motions 27 until the findings and recommendations are resolved. 28 /// 1 RECOMMENDATIONS 2 Further, IT IS HEREBY RECOMMENDED that: 3 1. The action be DISMISSED WITH PREJUDICE; and 4 2. The Clerk of Court be directed to CLOSE this case. 5 | These findings and recommendations are submitted to the United States District Judge assigned to 6 | the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days after 7 | being served with these findings and recommendations, plaintiff may file written objections with 8 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 9 | Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 10 | objections within the specified time may waive the right to appeal the District Court’s order. 11 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 12 | (9th Cir. 1991). 13 | Dated: January 21, 2021 i Aectl Aharon 15 KENDALL J. NE o153 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28