(PS) Van den Heuvel v. Pesce ( 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–00546 TLN CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR LACK OF 13 v. SUBJECT MATTER JURISDICTION; ORDER 14 JAMIE PESCE, 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 The court finds that it lacks federal subject matter jurisdiction over the action. See United 21 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (noting the 22 federal court’s independent duty to ensure it has subject matter jurisdiction in the case). 23 Accordingly, the court recommends that the action be dismissed without prejudice, and that 24 plaintiff’s application to proceed in forma pauperis in this court be denied as moot. 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). 8 The court must dismiss a case if, at any time, it determines that it lacks subject matter 9 jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has jurisdiction over a 10 civil action when: (1) a federal question is presented in an action “arising under the Constitution, 11 laws, or treaties of the United States” or (2) there is complete diversity of citizenship and the 12 amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). Further, a plaintiff 13 must have standing to assert a claim, which requires an injury in fact caused by defendant(s) that 14 may be redressed in court. Harrison v. Kernan, 971 F.3d 1069, 1073 (9th Cir. 2020). 15 Federal courts lack subject matter jurisdiction to consider claims that are “so insubstantial, 16 implausible, foreclosed by prior decisions of this court, or otherwise completely devoid of merit 17 as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 18 83, 89 (1998); Hagans v. Lavine, 415 U.S. 528, 537 (1974) (court lacks subject matter jurisdiction 19 over claims that are “essentially fictitious,” “obviously frivolous” or “obviously without merit”); 20 see also Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549-50 (9th Cir. 2018) 21 (noting that the “wholly insubstantial and frivolous” standard for dismissing claims operates 22 under Rule 12(b)(1) for lack of federal question jurisdiction). A claim is legally frivolous when it 23 lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A 24 court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory 25 or where the factual contentions are clearly baseless. Id. at 327; Rule 12(h)(3). 26 Analysis 27 Here, plaintiff purports to sue an El Dorado County judge and court clerk, respectively, 28 for unintelligible reasons. The complaint is incoherent and states no factual premise for any 1 cognizable legal injury. Insofar as the actions giving rise to the complaint are related to the 2 judicial process, defendants have immunity from this suit. See Olson v. Idaho State Board of 3 Medicine, 363 F.3d 916 (9th Cir. 2004) (noting that judges are entitled to absolute immunity for 4 actions taken within their jurisdiction); Cal. Gov’t Code § 821.6 (“A public employee is not liable 5 for injury caused by his instituting or prosecuting any judicial . . . proceeding within the scope of 6 his employment, even if he acts maliciously and without probable cause.”); see also Pagtakhan v. 7 Alexander, 999 F. Supp. 2d 1151, 1156-60 (N.D. Cal. 2013) (applying Section 821.6 to claims for 8 false prosecution, general negligence, and intentional infliction of emotional distress). 9 The court does not have federal question jurisdiction over this action, because plaintiff 10 does not assert any federal claims against any defendant. Furthermore, there is no diversity of 11 citizenship jurisdiction, because both plaintiff and defendants are citizens of California and the 12 amount in controversy requirement plainly cannot be met. See McDaniel v. Hinch, No. 2:17-cv- 13 02448 KJM CKD (E.D. Cal.), Order dated July 11, 2018 (“[W]ith no stated claim triggering 14 either diversity or federal question jurisdiction, the complaint is properly subject to dismissal for 15 lack of jurisdiction. Fed. R. Civ. P 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).”). 16 Therefore, the court recommends that the action be dismissed without prejudice for lack 17 of federal subject matter jurisdiction. 18 RECOMMENDATIONS 19 Accordingly, IT IS HEREBY RECOMMENDED that: 20 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT; 21 2. The action be DISMISSED for lack of subject matter jurisdiction; and 22 3. The Clerk of Court be directed to CLOSE this case. 23 These findings and recommendations are submitted to the United States District Judge assigned to 24 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 25 being served with these findings and recommendations, plaintiff may file written objections with 26 the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 27 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 28 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 1 |} (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 2 ORDER 3 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 4 || discovery, and motion practice in this action are stayed pending resolution of these findings and 5 || recommendations. Other than objections to the findings and recommendations or non-frivolous 6 || motions for emergency relief, the court will not entertain or respond to any pleadings or motions 7 || until the findings and recommendations are resolved. 8 | Dated: April 7, 2023 / hice ANKE) flo ° CAROLYN K DELANEY? 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15. || 2Wandenheuvel546.f&r dismiss no SMJ, IFP moot 16 17 18 19 20 21 22 23 24 25 26 27 28