(PS) Peden v. Comcast Communications LLC ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WESLEY ELVIS PEDEN, Case No. 2:22-cv-01551-DAD-JDP (PS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS 14 COMCAST COMMUNICATIONS, LLC, ECF No. 2 et al., 15 SCREENING ORDER THAT PLAINTIFF: Defendants. 16 (1) STAND BY HIS COMPLAINT SUBJECT TO DISMISSAL, OR 17 (2) FILE AN AMENDED COMPLAINT 18 ECF No. 1 19 THIRTY-DAY DEADLINE 20 21 Plaintiff Wesley Peden filed a complaint against Comcast Communications, LLC and 22 Xfinity alleging that defendants attempted to blackmail him into making unnecessary payments. 23 His complaint, however, fails to state a claim. I will give plaintiff a chance to amend his 24 complaint before recommending dismissal. I will also grant his application to proceed in forma 25 pauperis, ECF No. 2, which makes the showing required by 28 U.S.C. §§ 1915(a)(1) and (2). 26 Screening and Pleading Requirements 27 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 28 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 1 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 2 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 3 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 4 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 5 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 6 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 7 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 8 n.2 (9th Cir. 2006) (en banc) (citations omitted). 9 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 10 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 11 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 12 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 13 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 14 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 15 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 16 Analysis 17 In August 2021, plaintiff contracted with defendants at a Sacramento Xfinity store for 18 high-speed internet at the rate of $73 per month. ECF No. 1 at 1. Plaintiff did not agree to setup 19 automatic payments; however, he claims that a month later, someone at Xfinity signed him up for 20 automatic payments without his permission. Id. Plaintiff received email notifications that his 21 monthly payments were accepted until July 2022, when he received an alert from his bank that 22 Xfinity attempted to debit $169 from his account. Id. Plaintiff inquired at the same Xfinity store 23 as to the change in his bill and was informed that he was being charged for services, including 24 phone and television, that he had not agreed to purchase. Id. The Xfinity representative fixed 25 plaintiff’s account, but plaintiff later discovered that Xfinity had attempted to withdraw $285 26 from his bank account; Xfinity claimed that he owed $358 in outstanding fees. Id. at 1-2, 5. 27 Xfinity advised plaintiff via text message and email that his services would be stopped if he did 28 not pay the outstanding balance. Id. at 2. 1 These allegations do not state a claim for relief. As an initial matter, the only cause of 2 action identified by plaintiff is 18 U.S.C. § 873. See id. at 1, ECF No. 1-1 at 1. However, 3 plaintiff cannot state a claim under 18 U.S.C. § 873; it is a criminal statute that does not provide a 4 private right of action. See Markley v. City of Seattle, No. C22-5038-RSL, 2022 WL 374415, at 5 *1 (W.D. Wash. Feb. 8, 2022); Afshari v. Montana Black Gold, No. 20-5362, 2020 WL 9217980, 6 at *3 (6th Cir. Dec. 17, 2020) (affirming the district court’s finding that there was no private right 7 of action for a violation of 18 U.S.C. § 873). 8 Additionally, plaintiff’s complaint does not set forth the basis for federal court 9 jurisdiction. A federal court may adjudicate only those cases authorized by the Constitution and 10 by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The basic federal 11 jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal question” and “diversity” 12 jurisdiction, respectively. Federal question jurisdiction requires that the complaint (1) arise under 13 a federal law or the U.S. Constitution, (2) allege a “case or controversy” within the meaning of 14 Article III, § 2 of the U.S. Constitution, or (3) be authorized by a federal statute that both 15 regulates a specific subject matter and confers federal jurisdiction. Baker v. Carr, 369 U.S. 186, 16 198 (1962). A case presumably lies outside the jurisdiction of the federal courts unless 17 demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. To invoke the court’s diversity 18 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 19 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan Am. World Airlines, 20 Inc., 828 F.2d 546, 552 (9th Cir. 1987). 21 Plaintiff has failed to establish federal question jurisdiction since, as noted above, he has 22 not stated a federal cause of action. See Markley, 2022 WL 374415, at *1 (“If a federal statute 23 does not provide plaintiff a private right of action to sue, then it does not bestow federal question 24 subject-matter jurisdiction.”). Additionally, he has not alleged diversity jurisdiction because, 25 according to the complaint, all parties reside in Sacramento, California, and the damages sought 26 do not exceed $75,000. ECF No. 1 at 6, ECF No.1-1 at 1. As such, plaintiff has not established 27 federal jurisdiction. 28 1 I will allow plaintiff a chance to amend his complaint before recommending that this 2 | action be dismissed. If plaintiff decides to file an amended complaint, the amended complaint 3 | will supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th 4 | Cir. 2012) (en banc). This means that the amended complaint will need to be complete on its face 5 | without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 6 | complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 7 | complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 8 | defendant’s involvement in sufficient detail. The amended complaint should be titled “First 9 | Amended Complaint” and refer to the appropriate case number. If plaintiff does not file an 10 | amended complaint, I will recommend that this action be dismissed. 11 Accordingly, it is hereby ORDERED that: 12 1. Plaintiff's request for leave to proceed in forma pauperis, ECF No. 2, is granted. 13 2. Within thirty days from the service of this order, plaintiff must either file an 14 | amended complaint or advise the court he wishes to stand by his current complaint. If he selects 15 | the latter option, I will recommend that this action be dismissed. 16 3. Failure to comply with this order will result in the dismissal of this action. 17 4. The Clerk of Court is directed to send plaintiff a new form complaint. 18 19 IT IS SO ORDERED. 20 ( q oy — Dated: _ April 13, 2023 Q——— 21 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28