(PS) Ashford v. Yee ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BURK N. ASHFORD, Case No. 2:19-cv-02358-KJM-JDP (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO STATE A 13 v. CLAIM 14 BETTY T. YEE, et al., OBJECTIONS DUE WITHIN 14 DAYS 15 Defendants. ECF No. 13 16 17 On May 13, 2020, the court found that plaintiff’s complaint failed to state a claim, but 18 allowed plaintiff the opportunity to file an amended complaint. ECF No. 12. Plaintiff’s first 19 amended complaint, ECF No. 13, is now before me for screening, see 28 U.S.C. § 1915(e)(2). 20 Plaintiff claims that his Social Security deposits—placed into his account with defendant 21 Comerica Bank—were not given to him at his request. ECF No. 13 at 2. The amended complaint 22 remains defective, and I recommend that the court dismiss it. 23 Background 24 In approximately March 2011, when plaintiff was taken into custody, he had an account 25 with money in it, which was capable of receiving deposits. Id. After his release on November 6, 26 2017, he contacted the bank and was told that his account had a zero balance. Id. He was 27 initially unable to figure out what had happened to his money, id., but later learned that the 28 balance previously in the account, $2,294.18, had been classified as unclaimed after three years, 1 then transferred to the California State Controller’s office under state law. Id. at 3. Plaintiff 2 began the process of filing a claim for it with the state. Id. at 3-4. Plaintiff was able to recover all 3 of his money, except for about $500. Id. at 5. 4 Screening and Pleading Requirements 5 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 6 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 7 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 8 require detailed allegations, but legal conclusions alone do not suffice. See Ashcroft v. Iqbal, 556 9 U.S. 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 10 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 11 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 12 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 13 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 14 n.2 (9th Cir. 2006) (en banc) (citations omitted). 15 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 16 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 17 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 18 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 19 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 20 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 21 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 22 Discussion 23 In his first amended complaint, plaintiff fails to remedy the shortcomings that the court 24 noted when screening his original complaint. The court previously advised him that, to state a 25 claim under 42 U.S.C. § 407, he would have to show that defendants precluded him from 26 recovering his funds under the procedures established by California’s Unclaimed Property Law. 27 ECF No. 12 at 4. Instead, in plaintiff’s first amended complaint, he alleges that he filed a claim 28 1 || with the state of California and retrieved all his money, except for about $500.1 ECF No. 13 at 4- 2 | 5. The court also advised plaintiff that he must pursue a remedy in state court before he can bring 3 | his claim to federal court. ECF No. 12 at 4. Plaintiff, however, does not allege that he has filed a 4 | state action. See ECF No. 13 at 6. Instead, he argues that pursuing his claims in state court 5 | would be futile because Texas has jurisdiction and California is “the most litigious State in the 6 | Union.” 7d. 7 These arguments are without merit. Plaintiff has a remedy under California state law, his 8 || money is being held according to California state law, and whether the state of California is 9 | “litigious” has no bearing on the futility of pursuing his claim in state court. Thus, plaintiff's first 10 || amended complaint, like his original one, fails to state a claim. As it appears that plaintiff's case 11 | should be brought in state court, and plaintiff has already been given leave to amend with detailed 12 | instructions on the legal standards, further leave to amend would be futile. Accordingly, I 13 | recommend that the court dismiss this case without prejudice to filing in state court. 14 I submit these findings and recommendations to the district judge under 28 U.S.C. 15 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 16 | Eastern District of California. Within 14 days of the service of the findings and 17 | recommendations, the parties may file written objections to the findings and recommendations 18 | with the court and serve a copy on all parties. That document should be captioned “Objections to 19 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 20 | and recommendations under 28 U.S.C. § 636(b)(1)(C). 21 IT IS SO ORDERED. 23 ( q oy — Dated: _ February 4, 2021 Q_-——— 24 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 26 27 28 | | Plaintiff does not specify when this occurred.