(PS)Van den Heuvel v. Johnson ( 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, No. 2:23–cv–0777–DJC–CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR LACK OF 13 v. SUBJECT MATTER JURISDICTION; ORDER 14 MATTHEW M. JOHNSON, ET AL., 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 However, because the undersigned finds that the court lacks subject matter jurisdiction over this 21 action, the undersigned recommends that the action be dismissed without prejudice, and that 22 plaintiff’s application to proceed in forma pauperis in this court be denied as moot. See United 23 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (noting the 24 federal court’s independent duty to ensure it has subject matter jurisdiction in the case). 25 //// 26 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 27 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. Resolution of dispositive matters by a magistrate judge are to be filed as findings and recommendations. See 28 Local Rule 304. 1 Legal Standards 2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn. 7 3 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 4 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 5 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 6 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 7 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). The court must dismiss a 8 case if, at any time, it determines that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). 9 A federal district court generally has jurisdiction over a civil action when: (1) a federal question is 10 presented in an action “arising under the Constitution, laws, or treaties of the United States” or (2) 11 there is complete diversity of citizenship and the amount in controversy exceeds $75,000. See 28 12 U.S.C. §§ 1331, 1332(a). Further, a plaintiff must have standing to assert a claim, which requires 13 an injury in fact caused by defendant(s) that may be redressed in court. Harrison v. Kernan, 971 14 F.3d 1069, 1073 (9th Cir. 2020). 15 Federal courts lack subject matter jurisdiction to consider claims that are “so 16 insubstantial, implausible, foreclosed by prior decisions of this court, or otherwise completely 17 devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better 18 Environment, 523 U.S. 83, 89 (1998); see also Grancare, LLC v. Thrower by & through Mills, 19 889 F.3d 543, 549-50 (9th Cir. 2018) (noting that the “wholly insubstantial and frivolous” 20 standard for dismissing claims operates under Rule 12(b)(1) for lack of federal question 21 jurisdiction). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 22 Neitzke v. Williams, 490 U.S. 319, 325 (1989). A court may dismiss a claim as frivolous where it 23 is based on an indisputably meritless legal theory or where the factual contentions are clearly 24 baseless. Id. at 327; Rule 12(h)(3). 25 Analysis 26 Plaintiff sues public defender Matthew Johnson and El Dorado County Superior Court 27 Judge Kenneth J. Melikian. (ECF No. 1.) To the extent that plaintiff’s allegations concern the 28 judicial process, defendant Melikian is absolutely immune from suit. Olson v. Idaho State Board 1 of Medicine, 363 F.3d 916 (9th Cir. 2004) (noting that judges are entitled to absolute immunity 2 for actions taken within their jurisdiction). 3 Further, plaintiff has neither alleged a specific cause of action over which the court has 4 original jurisdiction or any facts from which the court can infer a cause of action over which the 5 court has original jurisdiction. The court does not have federal question jurisdiction over this 6 action, as plaintiff does not assert any federal claims against any defendant. There is no diversity 7 of citizenship jurisdiction, because both plaintiff and defendants are citizens of California and the 8 amount in controversy requirement plainly cannot be met. See McDaniel v. Hinch, No. 2:17-cv 9 02448-KJM-CKD (E.D. Cal. July 11, 2018) (“[W]ith no stated claim triggering either diversity or 10 federal question jurisdiction, the complaint is properly subject to dismissal for lack of 11 jurisdiction”). 12 Accordingly, the court recommends that the action be dismissed without prejudice for lack 13 of federal subject matter jurisdiction. 14 RECOMMENDATIONS 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT; 17 2. The action be DISMISSED for lack of subject matter jurisdiction; and 18 3. The Clerk of Court be directed to CLOSE this case. 19 These findings and recommendations are submitted to the United States District Judge assigned to 20 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 21 being served with these findings and recommendations, plaintiff may file written objections with 22 the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 23 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 24 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 25 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 26 //// 27 //// 28 //// 1 ORDER 2 All pleading, discovery, and motion practice in this action are stayed pending resolution of 3 || these findings and recommendations. Other than objections to the findings and recommendations 4 | ornon-frivolous motions for emergency relief, the court will not entertain or respond to any 5 || pleadings or motions until the findings and recommendations are resolved. 6 | Dated: October 24, 2023 □□ I / dip Ze 7 CAROLYNK. DELANEY 8 UNITED STATES MAGISTRATE JUDGE 9 10 |} 21,vand.0777 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28