(PC) Clark v. Jones ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOUREECE STONE CLARK, No. 2:22-cv-1451 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 MORGAN JONES, et al., 15 Defendants. 16 17 Plaintiff, a county prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 18 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 13. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against “a 5 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 6 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. First Amended Complaint 12 The first amended complaint names as defendants Morgan Jones Funeral Home, Shawnté 13 Duncan, and Andre Fleming. ECF No. 14 at 2. Plaintiff appears to allege that he had a son with 14 Duncan and their son is now deceased. Id. at 3. Duncan signed paperwork for the death 15 certificate and with Morgan Jones indicating that Fleming was the father, and Morgan Jones 16 removed their son’s body from the coroner. Id. Plaintiff further alleges that Duncan has 17 continued to file for child support even though their son passed away on April 23, 2022, and 18 appears to allege that she uses plaintiff’s social security number to harass him by opening 19 accounts in plaintiff’s name. Id. at 5. 20 IV. Failure to State a Claim 21 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of 22 Am., 511 U.S. 375, 377, (1994). 23 In 28 U.S.C. §§ 1331 and 1332(a), Congress granted federal courts jurisdiction over two general types of cases: cases that “aris[e] 24 under” federal law, § 1331, and cases in which the amount in controversy exceeds $ 75,000 and there is diversity of citizenship 25 among the parties, § 1332(a). These jurisdictional grants are known as “federal-question jurisdiction” and “diversity jurisdiction,” 26 respectively. 27 Home Depot U. S. A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019) (alteration in original). 28 //// 1 The complaint does not allege either diversity jurisdiction or federal question jurisdiction, 2 and supports neither. Plaintiff represents that defendants are all citizens of California, and 3 plaintiff is in the custody of the Marin County Jail and indicated on his civil cover sheet that he is 4 a citizen of California. ECF No. 1 at 4; ECF No. 14 at 2. He also fails to clearly identify an 5 amount in controversy. Id. at 3-6. There is no basis for diversity jurisdiction on the face of the 6 complaint. 7 Nor does there appear to be a basis for federal question jurisdiction. 8 A case “arises under” federal law either where federal law creates the cause of action or “where the vindication of a right under state law 9 necessarily turn[s] on some construction of federal law.” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 10 (1983)). “[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides 11 that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 12 Rivet v. Regions Bank, 522 U.S. 470, 475 (1998)). 13 Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (alteration in 14 original). Plaintiff’s complaint does not invoke any federal law or constitutional right. To the 15 extent plaintiff indicates that he is bringing this action pursuant to 42 U.S.C. § 1983 (ECF No. 14 16 at 1), he does not state cognizable claims because the defendants are private parties and 42 U.S.C. 17 § 1983 applies only to persons who are “acting under color of state law.” Marsh v. County of San 18 Diego, 680 F.3d 1148, 1158 (9th Cir. 2012). “‘[T]he under-color-of-state-law element of § 1983 19 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.’” Id. 20 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). 21 V. No Leave to Amend 22 Leave to amend should be granted if it appears possible that the defects in the complaint 23 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 24 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 25 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 26 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 27 The undersigned finds that, as set forth above, this court lack subject matter jurisdiction 28 over plaintiff’s claims. Given the nature of the claims and plaintiff’s representations about the 1 parties’ citizenship, amendment would be futile. The complaint should therefore be dismissed 2 without leave to amend. 3 VI. Plain Language Summary of this Order for a Pro Se Litigant 4 Your request to proceed in forma pauperis is granted. That means you do not have to pay 5 the entire filing fee now. You will pay it over time, out of your trust account. 6 It is being recommended that your complaint be dismissed without leave to amend 7 because this court does not have jurisdiction to hear your claims because all the parties are 8 citizens of California and you have not alleged any violations of federal law. 9 In accordance with the above, IT IS HEREBY ORDERED that: 10 1. Plaintiff’s requests for leave to proceed in forma pauperis (ECF No. 2, 6, 13) are 11 GRANTED. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 13 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 14 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 15 appropriate agency filed concurrently herewith. 16 3. The Clerk of the Court shall randomly assign a United States District Judge to this 17 action. 18 IT IS FURTHER RECOMMENDED that the complaint be dismissed without leave to 19 amend for failure to state a claim. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 22 after being served with these findings and recommendations, plaintiff may file written objections 23 with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 24 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 25 //// 26 //// 27 //// 28 //// 1] || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 2 | (9th Cir. 1991). 3 || DATED: October 17, 2023 . 4 Hthren— Lhor—e_ 5 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28