(PS) Oliver v. Placer County Superior Court ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID JEROME OLIVER, SR, et al., No. 2:20-cv-1203 JAM DB PS 12 Plaintiffs, 13 v. FINDINGS AND RECOMMENDATIONS 14 PLACER COUNTY SUPERIOR COURT, et al., 15 16 Defendants. 17 18 Plaintiff David Jerome Oliver Sr. is proceeding in this action pro se. This matter was 19 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 20 Pending before the court are plaintiff’s amended complaint and motion to proceed in forma 21 pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 2 & 4.) Therein, plaintiff complains about 22 state court child custody proceedings and criminal convictions. 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s amended complaint is deficient. Accordingly, for the reasons 26 stated below, the undersigned will recommend that plaintiff’s amended complaint be dismissed 27 without leave to amend. 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff David Oliver’s in forma pauperis application makes the financial showing 3 required by 28 U.S.C. § 1915(a)(1). However, three other individuals are named as plaintiffs in 4 the amended complaint.1 (Am. Compl. (ECF No. 4) at 3.) None of those individuals has 5 submitted an application to proceed in forma pauperis. Filing fees must be paid unless each 6 plaintiff applies for and is granted leave to proceed in forma pauperis. 7 Moreover, a determination that a plaintiff qualifies financially for in forma pauperis status 8 does not complete the inquiry required by the statute. “‘A district court may deny leave to 9 proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that 10 the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th 11 Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see 12 also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the 13 district court did not abuse its discretion by denying McGee’s request to proceed IFP because it 14 appears from the face of the amended complaint that McGee’s action is frivolous or without 15 merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court 16 to examine any application for leave to proceed in forma pauperis to determine whether the 17 proposed proceeding has merit and if it appears that the proceeding is without merit, the court is 18 bound to deny a motion seeking leave to proceed in forma pauperis.”). 19 The court must dismiss an in forma pauperis case at any time if the allegation of poverty is 20 found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a 21 1 While these other individuals are named in the amended complaint, only plaintiff David Oliver 22 Sr. has signed the amended complaint and provided an address. Plaintiff David Oliver Sr is 23 advised that the right to represent oneself pro se is personal and does not extend to other parties. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008); see also Russell v. United States, 24 308 F.2d 78, 79 (9th Cir. 1962) (“A litigant appearing in propria persona has no authority to represent anyone other than himself.”). Moreover, a non-attorney “has no authority to appear as 25 an attorney for others than himself.” C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 26 1987). Individuals who are representing themselves in this court may not delegate the litigation of their claims to any other individual. Local Rule 183(a). In this regard, the name, address, and 27 telephone number of each party must be included in the upper left-hand corner of each document presented for filing and each plaintiff must sign each document they file. Local Rule 131(a) and 28 (b); Fed. R. Civ. P. 11.) 1 claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 2 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or 3 in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 4 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous 5 where it is based on an indisputably meritless legal theory or where the factual contentions are 6 clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 7 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 8 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 9 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 10 true the material allegations in the complaint and construes the allegations in the light most 11 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 12 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 13 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 14 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 15 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 16 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 17 The minimum requirements for a civil complaint in federal court are as follows: 18 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 19 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 20 judgment for the relief the pleader seeks. 21 Fed. R. Civ. P. 8(a). 22 II. Plaintiff’s Amended Complaint 23 Here, plaintiff’s amended complaint fails to contain a short and plain statement of a claim. 24 In this regard, the amended complaint is devoid of any allegations. Instead, the amended 25 complaint consists of just three pages. Those pages list dozens of defendants, including the 26 Placer County Superior Court, “Placer County District Attorney Office Employees,” “California 27 Attorney General Office Employees,” and “Commission on Judicial Performance Office 28 //// 1 Employees,” as well as federal and state law cases involving the plaintiff. There are no 2 allegations or claims asserted. (Am. Compl. (ECF No. 4) at 1-3.2) 3 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 4 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 5 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 6 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 7 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 8 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 9 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 10 557). A plaintiff must allege with at least some degree of particularity overt acts which the 11 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 12 III. Further Leave to Amend 13 For the reasons stated above, plaintiff’s amended complaint should be dismissed. The 14 undersigned has carefully considered whether plaintiff may further amend the complaint to state a 15 claim upon which relief could be granted. “Valid reasons for denying leave to amend include 16 undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 17 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath 18 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 19 be freely given, the court does not have to allow futile amendments). 20 While plaintiff’s amended complaint is devoid of factual allegations, plaintiff’s original 21 complaint begins with allegations dating back to July 18, 2005, alleging that the “Auburn 22 Superior Court . . . granted relief that it had no authority to grant.” (Compl. (ECF No. 1) at 8.) 23 The complaint goes on to allege numerous allegations concerning proceedings involving child 24 custody and plaintiff’s violation of a restraining order through 2013. (Id. at 8-36.) 25 According to the amended complaint plaintiff is asserting a “VIOLATION OF CIVIL 26 RIGHTS.” (Am. Compl. (ECF No. 4) at 1.) A litigant who complains of a violation of a 27 2 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 system and not to the page numbers assigned by the parties. 1 constitutional right does not have a cause of action directly under the United States Constitution. 2 Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (affirming that it is 42 U.S.C. § 1983 that 3 provides a federal cause of action for the deprivation of rights secured by the United States 4 Constitution); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) (explaining 5 that 42 U.S.C. § 1983 was enacted to create a private cause of action for violations of the United 6 States Constitution); Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 7 1992) (“Plaintiff has no cause of action directly under the United States Constitution.”). 8 42 U.S.C. § 1983 provides that, 9 [e]very person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation 10 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 11 in equity, or other proper proceeding for redress. 12 42 U.S.C. § 1983 does not contain a specific statute of limitations. “Without a federal 13 limitations period, the federal courts ‘apply the forum state’s statute of limitations for personal 14 injury actions, along with the forum state’s law regarding tolling, including equitable tolling, 15 except to the extent any of these laws is inconsistent with federal law.’” Butler v. National 16 Community Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v. 17 Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007)); see also Jones v. Blanas, 393 F.3d 918, 927 18 (9th Cir. 2004). Before 2003, California’s statute of limitations for personal injury actions was 19 one year. See Jones, 393 F.3d at 927. Effective January 1, 2003, however, in California that 20 limitations period became two years. See id.; Cal. Code Civ. P. § 335.1. 21 Here, it appears that the most recent events at issued occurred in 2013. (Compl. (ECF No. 22 1) at 44.) The statute of limitations for any claims related to those events expired years prior to 23 the filing of this action. A court may dismiss a complaint where “‘it appears beyond doubt that 24 the plaintiff can prove no set of facts that would establish the timeliness of the claim.’” Von 25 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting 26 Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); see also Cervantes v. City of 27 San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the running of the statute of limitations 28 is apparent on the face of a complaint, dismissal for failure to state a claim is proper, so long as 1 plaintiff is provided an opportunity to amend in order to allege facts which, if proved, might 2 support tolling). 3 Moreover, plaintiff’s amended complaint acknowledges that plaintiff filed three previous 4 actions in this court. (Am. Compl. (ECF No. 4) at 1.) Review of those actions finds that the 5 allegations in those actions concerned the same allegations asserted in the original complaint here 6 and that those prior actions were dismissed without leave to amend based on the Rooker-Feldman 7 doctrine, Younger abstention, Eleventh Amendment immunity, prosecutorial immunity, and 8 judicial immunity. See Oliver v. Superior Court of California for County of Placer, No. 2:12-cv- 9 2705 KJM DAD PS, 2013 WL 3013670, at *3-4 (E.D. Cal. June 14, 2013); Oliver v. Superior 10 Court of California for County of Placer, No. 2:13-cv-2388 GEB DAD PS, 2013 WL 2605931, at 11 *3-4 (E.D. Cal. June 11, 2013); Oliver v. Placer Superior Court ex rel. Placer County, No. 2:12- 12 cv-2665 GEB GGH PS, 2013 WL 2488557, at *2 (E.D. Cal. June 10, 2013). 13 Because the allegations at issue in this action are identical to those in the previously 14 litigated actions the Rooker-Feldman doctrine, Younger abstention, Eleventh Amendment 15 immunity, prosecutorial immunity, and judicial immunity would also bar plaintiff from 16 proceeding in this action. Moreover, this action is duplicative of plaintiff’s previously filed 17 actions. “A complaint ‘that merely repeats pending or previously litigated claims’” is subject to 18 dismissal under 28 U.S.C. § 1915(e). Cato v. United States, 70 F.3d 1103, 1105 (9th Cir. 1995) 19 (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)). “[A] duplicative action arising 20 from the same series of events and alleging many of the same facts as an earlier suit” may be 21 dismissed as frivolous or malicious under section 1915(e). See Bailey, 846 F.2d at 1021. 22 “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of 23 proceedings, promotes judicial economy and the ‘comprehensive disposition of litigation.’” 24 Adams v. California Dep’t of Health Servs., 487 F.3d 684, 692 (9th Cir. 2007) (citation omitted), 25 overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 26 Accordingly, in light of the deficiencies noted above, the undersigned finds that it would 27 be futile to grant plaintiff further leave to amend in this case. 28 //// 1 CONCLUSION 2 Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiff’s June 16, 2020 application to proceed in forma pauperis (ECF No. 2) be 4 | denied; 5 2. Plaintiff’s September 17, 2020 amended complaint (ECF No. 4) be dismissed without 6 | leave to amend; and 7 3. This action be dismissed. 8 These findings and recommendations will be submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after 10 || being served with these findings and recommendations, plaintiff may file written objections with 11 || the court. A document containing objections should be titled “Objections to Magistrate Judge’s 12 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 13 | specified time may, under certain circumstances, waive the right to appeal the District Court’s 14 | order. See Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: November 22, 2020 16 17 18 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 20 21 22 DLB:6 23 || DB\orders\orders.pro se\oliverl 203.dism.f&rs 24 25 26 27 28