(PS) Portnoy - VEXATIOUS LITIGANT v. State of California ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SERGEI PORTNOY, No. 2:19-cv-01504-TLN-CKD PS 12 Plaintiff, 13 v. ORDER AND 14 STATE OF CALIFORNIA, FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 17 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 18 28 U.S.C. § 1915 to proceed in forma pauperis. (ECF No. 2.) This proceeding was referred to 19 this court by Local Rule 302(c)(21). 20 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable 21 to prepay fees and costs or give security for them. Accordingly, his request to proceed in forma 22 pauperis will be granted. 28 U.S.C. § 1915(a). 23 The federal in forma pauperis statute authorizes federal courts to dismiss a case at any 24 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 26 an immune defendant. 28 U.S.C. § 1915(e)(2). 27 I. Allegations in Plaintiff’s Complaint 28 In this action, plaintiff “demand[s] determination for void tentative ruling and judgment” 1 in a state court action. (ECF No. 1 at 2.) According to plaintiff’s complaint, he filed a complaint 2 in Yolo County Superior Court alleging causes of action for defamation, intentional infliction of 3 emotional distress, and loss earnings and future earnings against Carmen Alba, Perri Newel, and 4 Veolia/Transdew. (Id.) Plaintiff alleges that Yolo County Superior Court Judge Arvid Johnson 5 issued a tentative ruling declaring plaintiff a vexatious litigant and holding plaintiff’s complaint 6 fails to state facts sufficient to state a cause of action. (Id. at 3, 5.)1 Plaintiff further alleges that 7 Judge Timothy L. Fall committed fraud upon the court “because of his unconscionable scheme(s) 8 to make misrepresentation(s), corruption of a court official and judicial fraud” when he denied a 9 motion to vacate a tentative ruling. (Id. at 6–7.) Finally, plaintiff alleges that Judge Thomas E. 10 Warriner “continued fraud upon the court” in denying plaintiff’s motion to void the tentative 11 ruling. (Id. at 9–10.) Based on these denials, plaintiff claims that the three judges denied his 12 First, Seventh, and Fourteenth Amendment rights and named the State of California as the sole 13 defendant in this action. (Id. at 10–11.) On these grounds, plaintiff demands that the state court 14 tentative ruling and judgment be voided, that a state court case be reopened, and that the three 15 named state court judges be declared “trespassers of the law and crooks.” (Id. at 12.) 16 II. Legal Standard 17 “The Eleventh Amendment prohibits federal courts from hearing suits brought against an 18 unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th 19 Cir. 1991) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (holding 20 the Eleventh Amendment prohibits federal jurisdiction over suits against states unless the state 21 unequivocally consents to the suit)). This jurisdictional limitation applies regardless of whether 22 plaintiff seeks damages or injunctive relief. Pennhurst State Sch., 465 U.S. at 102 (citing Cory v. 23 White, 457 U.S. 85, 91 (1982)). 24 //// 25 1 The court notes that plaintiff has been declared a vexatious litigant by this court in an action 26 against the same three defendants. See Portnoy v. Veolia Transportation Services, Inc., et al., 27 Case No. 2:13-cv-00043-MCE-EFB, ECF No. 67 (order declaring plaintiff a vexatious litigant as to defendant Veolia Transportation Services, Inc. and requiring that plaintiff seek permission 28 from the court prior to filing any future suits against this defendant). 1 III. Analysis 2 Here, plaintiff attempts to sue the State of California in federal court. However, the State 3 of California is entitled to sovereign immunity under the Eleventh Amendment and plaintiff fails 4 to show any waiver of such sovereign immunity. See Dittman v. California, 191 F.3d 1020, 5 1025–26 (9th Cir. 1999) (“State of California has not waived its Eleventh Amendment 6 immunity . . . in federal court.”). Accordingly, the Eleventh Amendment bars plaintiff from 7 bringing any claims against the State of California, the complaint fails to state a valid claim for 8 relief against the State of California, and dismissal is proper. 9 IV. No Leave to Amend 10 If the court finds that a complaint should be dismissed for failure to state a claim, the court 11 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126– 12 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 13 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130–31; see 14 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 15 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 16 clear that the deficiencies of the complaint could not be cured by amendment.” (citing Noll v. 17 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after careful consideration, it is 18 clear that a complaint cannot be cured by amendment, the court may dismiss without leave to 19 amend. Cato, 70 F.3d at 1105–06 (affirming dismissal and finding the plaintiff’s “theories of 20 liability either fall outside the limited waiver of sovereign immunity by the United States, or 21 otherwise are not within the jurisdiction of the federal courts”). 22 The undersigned finds that, as set forth above, defendant is immune from liability and the 23 complaint does not identify a waiver of sovereign immunity. As it appears amendment would be 24 futile, the undersigned will recommend that this action be dismissed without leave to amend. 25 //// 26 //// 27 //// 28 //// 1] V. Conclusion 2 Tn accordance with the above, IT IS HEREBY ORDERED that plaintiff's motion to 3 | proceed in forma pauperis (ECF No. 2) is granted. 4 IT IS ALSO HEREBY RECOMMENDED that: 5 1. The action be dismissed without leave to amend; and 6 2. The case be closed. 7 These findings and recommendations are submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 9 | after being served with these findings and recommendations, any party may file written 10 | objections with the court and serve a copy on all parties. Such a document should be captioned 11 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 12 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 13 | Yist, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: August 8, 2019 CA rd / / { 4 Is CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 | 15 pormoy1504.ifp.dismissal 20 21 22 23 24 25 26 27 28