(PS) Van den Heuvel v. Expedia ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HEUVEL , Case No. 2:23-cv-01076-KJM-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS 14 EXPEDIA, ECF No. 2 15 Defendant. FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S COMPLAINT BE 16 DISMISSED WITHOUT LEAVE TO AMEND 17 ECF No. 1 18 19 Plaintiff Jean Marc Van den Heuvel brings this civil action against defendant Expedia. 20 His complaint, however, fails to state a claim, and I will recommend that it be dismissed. I will 21 grant plaintiff’s application to proceed in forma pauperis, ECF No. 2, which makes the showing 22 required by 28 U.S.C. §§ 1915(a)(1) and (2). 23 Screening and Pleading Requirements 24 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 25 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 26 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 27 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 28 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 1 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 2 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 3 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 4 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 5 n.2 (9th Cir. 2006) (en banc) (citations omitted). 6 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 7 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 8 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 9 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 10 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 11 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 12 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 13 Analysis 14 The complaint cites two federal laws as purported bases for plaintiff’s claims, ECF No. 1 15 at 3, but neither supports a cause of action. The complaint cites 49 U.S.C. § 41712, but that 16 statute gives the Department of Transportation, not a private citizen, power to “investigate and 17 decide whether an air carrier . . . has been or is engaged in an unfair or deceptive practice or an 18 unfair method of competition in air transportation or the sale of air transportation.” 49 U.S.C. 19 § 41712(a); Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1223 (11th Cir. 2014). Plaintiff may, 20 however, a file a complaint with the Department of Transportation, and the Department of 21 Transportation, at its discretion, can prosecute actions against carriers for “unfair and deceptive 22 practices.” See 49 U.S.C. § 41712(a); Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 23 1250 (6th Cir. 1996), amended on denial of re’g, No. 95-5120, 1998 WL 117980 (6th Cir. Jan. 24 15, 1998). The complaint also cites 14 Code of Federal Regulations Part 259. ECF No. 1 at 3. 25 This regulatory subchapter provides enhanced protections for certain airline passengers, but 26 plaintiff has neither alleged a cause of action under a specific subsection of this subchapter nor 27 alleged that he has standing do so. 28 1 The factual allegations consist of one sentence that spans several lines and makes no 2 reference to air travel, despite the complaint’s citation to the two, above-described statutes. Id. at 3 4. From what the court can glean, the complaint alleges that plaintiff was charged with 4 trespassing at the El Dorado County Public Library, but that Judge Jamie Pesce removed the trial 5 from calendar. Id. For this alleged wrong, plaintiff seeks twenty million dollars. 6 Plaintiff attached several documents to the complaint, including filings and court orders 7 from other cases filed by plaintiff in this district and an assortment of documents from the 8 Sacramento County Superior Court. Id. at 6-54. 9 The complaint fails to comport with Rule 8’s requirement that it present a short and plain 10 statement of plaintiff’s claims, and it contains no facts to support any cognizable legal claim 11 against defendant Expedia. See Fed. R. Civ. P. 8(a). Plaintiff must allege with at least some 12 degree of particularity overt acts of defendant that support his claims. See Jones v. Cmty. Redev. 13 Agency, 733 F.2d 646, 649 (9th Cir. 1984) (“The plaintiff must allege with at least some degree of 14 particularity overt acts which defendants engaged in that support the plaintiff’s claim.”). Indeed, 15 plaintiff does not mention Expedia or any actions taken by the corporation in his allegations. 16 The operative complaint should be dismissed for failure to state a claim. Given the 17 complaint’s allegations, I find that granting plaintiff an opportunity to amend would not cure its 18 deficiencies, and so I recommend that dismissal be without leave to amend.1 See Schucker v. 19 Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam) (“Dismissal of a pro se 20 complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of 21 the complaint could not be cured by amendment.”) (internal quotation marks and citations 22 omitted). 23 Accordingly, it is hereby ORDERED that plaintiff’s request for leave to proceed in forma 24 pauperis, ECF No. 2, is granted. 25 1 Plaintiff has filed approximately forty cases in this district in the past ten years. Several of his prior complaints resemble in some ways the instant complaint and have not survived 26 screening. See Van Den Heuvel v. A.M.P.M. Mini Mart, 2:23cv752-TLN-AC (PS) (E.D. Cal. 27 June 21, 2023) (dismissing plaintiff’s complaint for failure to state a claim); Van Den Heuvel v. Walmart Super Store, 2:22-cv-249-DJC-JDP (PS) (E.D. Cal. June 5, 2023) (same); Van Den 28 Heuvel v. Kathy McMillian, 2:22-cv-2292-DAD-CKD (PS) (E.D. Cal. Aug. 16, 2023) (same). 1 Furthermore, it is hereby RECOMMENDED that: 2 1. Plaintiff's complaint, ECF No. 1, be dismissed without leave to amend. 3 2. The Clerk of Court be directed to close this matter. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 6 | after being served with these findings and recommendations, any party may file written 7 | objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 | objections shall be served and filed within fourteen days after service of the objections. The 10 | parties are advised that failure to file objections within the specified time may waive the right to 11 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 12 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 13 4 IT IS SO ORDERED. 15 ( 1 Ow — Dated: _ December 8, 2023 Q_—_—. 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28