(PS)Young v. Burlingham ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL CHRISTOPHER YOUNG, No. 2:22–cv–0590–JAM-CKD PS 12 Plaintiff, 13 v. ORDER & FINDINGS AND RECOMMENDATIONS TO DISMISS SUA 14 STEVEN RICHARD BURLINGHAM, et SPONTE al., 15 (ECF Nos. 1, 5, 6, 8, 12) Defendants. 16 17 18 On April 4, 2022, plaintiff filed a fee-paid complaint initiating this action against twelve 19 defendants involved in California state probate court proceedings connected with the 20 conservatorship of plaintiff’s mother.1 (ECF No. 1.) Because the complaint failed to establish 21 this court’s subject matter jurisdiction and appeared to be barred by a previous case of plaintiff’s, 22 the court on May 4, 2022 issued an order for plaintiff to show cause within 14 days why the case 23 should not be dismissed. (ECF No 4.) 24 On May 16, 2022, the show cause order was returned to the court as undeliverable; 25 however, plaintiff continues to file motions and other documents listing the same street address 26 listed as his address of record for this case. (See, e.g., ECF Nos. 6, 7.) Another filing states that 27 1 Because plaintiff is self-represented, all pre-trial proceedings are referred to the undersigned 28 magistrate judge pursuant to 28 U.S.C. § 636(b)(1) and E.D. Cal. Local Rule 302(c)(21). 1 plaintiff is living out of his car. (ECF No. 5 at 1.) It is unclear whether plaintiff has received the 2 May 4th show cause order and whether he intends any of his numerous filings since its issuance 3 to serve as a response to it.2 Plaintiff’s possible housing instability, however unfortunate, does 4 not relieve him of his duty as a self-represented prosecuting party to maintain a current address 5 for receipt of the court’s orders. 6 Presented with no showing of good cause, the undersigned recommends that this case be 7 dismissed. The various motions and filings received since the May 4th show cause order confirm 8 that the court lacks subject matter jurisdiction over this suit. 9 BACKGROUND 10 None of the defendants have yet appeared or responded to the complaint, and the May 4th 11 show cause order instructed that the defendants were not required to respond to the complaint 12 until the show cause order was deemed satisfied. (ECF No. 4 at 7.) However, courts have “an 13 independent obligation to determine whether subject-matter jurisdiction exists, even when no 14 party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Pursuant to Rule 12(h)(3) of 15 the Federal Rules of Civil Procedure, “[i]f the court determines at any time that it lacks subject- 16 matter jurisdiction, the court must dismiss the action.” 17 Plaintiff has repeatedly filed suit in this federal court against the same individuals for 18 fraud and corruption that allegedly took place in probate proceedings in Sacramento County 19 Superior Court connected with the conservatorship of plaintiff’s mother. (See Young et al. v. 20 Burlingham et al., No. 2:21-cv-00537-TLN-KJN; Young v. Burlingham et al., No. 2:21-cv- 21 01660-KJM-AC; Young v. Burlingham et al., No. 2:22-cv-00053-TLN-CKD.) In each of those 22 suits, plaintiff was advised of issues with establishing the court’s subject matter jurisdiction. In 23 addition, Case No. 2:21-cv-00537 (hereafter “the 537 Action”) was involuntarily dismissed with 24 prejudice under Rule 41(b) for failure to comply with court orders by failing to oppose the 25 defendants’ motions to dismiss. (No. 2:21-cv-00537, ECF Nos. 15, 18.) 26 27 2 Although the document filed at ECF No. 7 was docketed as a Reply to the Order to Show Cause, that filing does not describe itself as such, nor does it expressly refer to the May 4th show cause 28 order. 1 Given this background, the court ordered plaintiff to show cause (1) why the court has 2 subject matter jurisdiction, and (2) why this suit is not barred by the “with prejudice” dismissal of 3 plaintiff’s substantively identical prior suit. 4 DISCUSSION 5 The undersigned now concludes that (1) the court lacks subject matter jurisdiction for at 6 least two reasons, and (2) this action is barred by the doctrine of res judicata. 7 1. Lack of Subject Matter Jurisdiction 8 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of 9 Am., 511 U.S. 375, 377 (1994). A federal district court generally has jurisdiction over a civil 10 action when (1) a federal question is presented in an action “arising under the Constitution, laws, 11 or treaties of the United States” or (2) there is complete diversity of citizenship between the 12 parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). A 13 complaint that fails to establish either type of jurisdictional basis must be dismissed. In addition, 14 various judicial doctrines require dismissal for lack of jurisdiction even when federal question or 15 diversity jurisdiction is present on the face of the complaint. 16 In this case, dismissal is required for both reasons. 17 1. No Diversity or Federal Question Jurisdiction 18 Plaintiff’s complaint does not assert “diversity jurisdiction,” and for good reason, because 19 it appears that plaintiff and all twelve defendants are citizens of California. (ECF No. 1 at 2, 5-7 20 (listing California addresses).) See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 21 553 (2005) (for § 1332(a), complete diversity requires that each plaintiff must be a citizen of a 22 different state from the defendants). 23 Instead, plaintiff asserts “federal question” jurisdiction based on three grounds. First, the 24 complaint lists “(Fraud Upon the Court) as set forth in (Cox v. Burke) 706 So. 2d 43 47 (Fla. 5th 25 DCA 1998).” (ECF No. 1 at 1, 4.) As made clear by plaintiff’s subsequent filings, plaintiff’s 26 entire theory for this suit is that the California Superior Court wrongly entered various rulings 27 against him in the conservatorship proceedings, based on allegedly fraudulent conduct by 28 opposing parties and their counsel. “Fraud on the court” is not a federal cause of action, and Cox 1 v. Burke is a Florida state court case that has no bearing on federal jurisdiction. The cited portion 2 of that case dealt with the state court’s inherent authority to dismiss a claim before it if a party or 3 their counsel is acting in a fraudulent manner. Id. at 46-47. 4 Second, the complaint asserts jurisdiction under California Penal Code § 182(a), which 5 makes conspiracy a criminal state offense. (ECF No. 1 at 1, 4.) However, private citizens have 6 no authority to assert civil claims under the criminal code, either state or federal. See Allen v. 7 Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (no private right of action for 8 violation of criminal statutes). 9 Third, the complaint asserts jurisdiction based on “deprivation of rights under color of 10 law,” briefly referencing in the caption the Due Process and Equal Protection Clauses of the 11 Fourteenth Amendment. (ECF No. 1 at 1, 4.) The court understands plaintiff to be invoking 12 42 U.S.C. § 1983, which “creates a private right of action against individuals who, acting under 13 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 14 F.3d 1070, 1074 (9th Cir. 2001). To state a claim under § 1983, a plaintiff must allege (1) that a 15 right secured by the Constitution or laws of the United States was violated, and (2) that the 16 alleged violation was committed by a person acting under color of state law. See West v. Atkins, 17 487 U.S. 42, 48 (1988). 18 Section 1983 would give the court jurisdiction if the complaint named any defendants who 19 were subject to suit thereunder. However, the complaint makes plain that 11 of the 12 defendants 20 are not “state actors” subject to suit under § 1983, and the only arguable state actor is immune 21 from this suit. All of the defendants besides Court Investigator Robin Pearl are private persons 22 involved in a personal capacity in the conservatorship/probate proceedings at issue: plaintiff’s 23 brother, the court-appointed conservator/fiduciary, and the numerous attorneys and legal staff 24 representing the probate parties.3 25 //// 26 3 Plaintiff provides an address for defendant attorney Olena Likhachova that indicates she works 27 for the California Department of Justice. However, the pleadings and attachments make clear that Likhachova is named in connection with her representation of plaintiff’s brother while she was in 28 private practice. (ECF No. 1 at 41, 44, 50.) 1 Conduct by private individuals or entities is generally not actionable under § 1983. See 2 Gomez v. Toledo, 446 U.S. 635, 640 (1980) (a private individual generally does not act under 3 color of state law). Conduct by private individuals or entities is only actionable under § 1983 if 4 there is “such a close nexus between the State and the challenged action that seemingly private 5 behavior may be fairly treated as that of the State itself.” Brentwood Academy v. Tennessee 6 Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (cleaned up). In alleging various and 7 sundry acts of fraud and conspiracy, plaintiff identifies nothing linking these defendants to the 8 State itself. That these acts took place in connection with a state court proceeding does not satisfy 9 § 1983’s “state action” requirement. 10 Defendant Robin Pearl is the only defendant arguably sued in connection with actions 11 taken under color of state law. The complaint identifies Ms. Pearl as a “Court Investigator” and, 12 as best the court can tell, she is sued here for two actions taken in the probate case: 13 (1) “produc[ing]” a “fraudulent investigator report” of elder abuse, which led to plaintiff being 14 removed from the home he previously shared with his mother (ECF No. 1 at 11, 23), and 15 (2) creating an “investigative report” recommending that plaintiff’s mother should be represented 16 by court-appointed counsel to avoid the conflict of interest with her being represented by the 17 same private attorney who was representing plaintiff (id. at 27). 18 Both of these actions are the type taken in the normal course of a Probate Court 19 Investigator performing her official duties. See Cal. Probate Code § 1826 (establishing court 20 investigator duties including reviewing allegations of the petition, interviewing petitioners and 21 relatives, and reporting to the Superior Court in writing regarding various matters, such as 22 representation and appointment of legal counsel). Given that these are integral parts of the 23 judicial process for state court probate proceedings, Ms. Pearl is immune from suit for these 24 actions under the doctrine of quasi-judicial immunity. See Moore v. Brewster, 96 F.3d 1240, 25 1244 (9th Cir. 1996) (“The concern for the integrity of the judicial process that underlies the 26 absolute immunity of judges is reflected in the extension of absolute immunity to certain others 27 who perform functions closely associated with the judicial process.”); In re Castillo, 297 F.3d 28 940, 947-49 (9th Cir. 2002) (overruled in part on other grounds) (noting that quasi-judicial 1 immunity extends “to court clerks and other nonjudicial officers for purely administrative acts— 2 acts which taken out of context would appear ministerial, but when viewed in context are actually 3 a part of the judicial function.”). Thus, even assuming the complaint’s minimal allegations 4 sufficiently stated a § 1983 claim against Ms. Pearl, she is immune from suit. 5 2. Rooker-Feldman Bar 6 Even if the complaint could be construed to state a § 1983 claim, dismissal is nevertheless 7 required under the Rooker-Feldman doctrine.4 “[T]he Rooker-Feldman doctrine bars suits 8 ‘brought by state-court losers complaining of injuries caused by state-court judgments rendered 9 before the district court proceedings commenced and inviting district court review and rejection 10 of those judgments.’” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010) (quoting Exxon 11 Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S. 280, 284 (2005)). The doctrine applies when 12 “the action contains a forbidden de facto appeal of a state court decision.” Bell v. City of Boise, 13 709 F.3d 890, 897 (9th Cir. 2013). “A de facto appeal exists when ‘a federal plaintiff [1] asserts 14 as a legal wrong an allegedly erroneous decision by a state court, and [2] seeks relief from a state 15 court judgment based on that decision.’” Id. (quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 16 2003)). If the federal action constitutes a de facto appeal, district courts are barred from deciding 17 not only the issues decided by the state court, but also any other issues that are “inextricably 18 intertwined” with an issue resolved by the state court’s decision. Kougasian v. TMSL, Inc., 359 19 F.3d 1136, 1142 (9th Cir. 2004) (citing Noel, 341 F.3d at 1158). 20 Plaintiff’s complaint and his many subsequent motions and filings demonstrate that both 21 elements of a de facto appeal are present in this case.5 First, plaintiff’s entire reason for bringing 22 this suit is that over the course of the conservatorship proceedings, the Superior Court made 23 several erroneous decisions: (1) ordering him to vacate the house he shared with his mother, 24 based on allegation of financial elder abuse, (2) issuing a restraining order against him, and 25 4 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of 26 Appeals v. Feldman, 460 U.S. 462 (1983). 27 5 In addition, the contested Superior Court rulings were entered between 2018 and 2021, before 28 this federal action was filed in April 2022. 1 (3) entering a judgment of $2,109,000 against him, based on a finding that he misappropriated 2 equity in certain real property. (See ECF No. 1 at 12, 23, 72-73; ECF Nos. 6 at 5, 7 at 1, and 8 3 at 2.) Plaintiff asserts that these rulings were wrongly decided based on fraudulent statements and 4 evidence presented to the court by other parties and their counsel. (ECF Nos. 6 at 1, 7 at 1.) 5 Thus, these court-imposed injuries were caused by the Superior Court’s alleged legal errors in 6 reviewing the evidence submitted in the conservatorship proceedings. See Noel, 341 F.3d at 1164 7 (Rooker-Feldman bar applies when the “federal plaintiff [is] complaining of legal injury caused 8 by a state court judgment because of a legal error committed by the state court”). 9 Although plaintiff’s complaint asserts widespread fraud in the state court proceedings, 10 none of the alleged types of fraud contributing to the Superior Court’s orders qualifies as 11 “extrinsic” fraud that would avoid the Rooker-Feldman bar. See Benavidez v. Cty. of San Diego, 12 993 F.3d 1134, 1143 (9th Cir. 2021) (“[W]here a party alleges extrinsic fraud by an adverse party 13 in procuring a state court judgment, the Rooker-Feldman doctrine does not apply, because such a 14 claim does not challenge the state court decision directly.”). “Extrinsic fraud is conduct which 15 prevents a party from presenting his claim in court.” Kougasian, 359 F.3d at 1140 (quotation 16 omitted). To qualify as extrinsic, the alleged fraud must be “collateral to the matters involved in 17 the action.” Green v. Ancora-Citronelle Corp., 577 F.2d 1380, 1384 (9th Cir. 1978). By contrast, 18 “intrinsic” fraud “goes to the very heart of the issues contested in the state court action.” Id. 19 All of the “exhibits” plaintiff includes with the complaint and continues to file separately 20 are offered to contradict the Superior Court’s finding that plaintiff improperly withdrew equity 21 from his mother’s real property. This goes to the core of the dispute in the conservatorship 22 proceedings. Cf. Green, 577 F.2d at 1384. Moreover, none of the alleged acts of fraud and 23 “corruption” prevented plaintiff from raising his fraud-related claims or objections to the Superior 24 Court. Cf. Kougasian, 359 F.3d at 1140; Lewis v. L.A. Metro. Transit Auth., No. CV-19-1456- 25 PSG-JPRx, 2019 WL 6448944, at *3-4 (C.D. Cal. Sept. 10, 2019) (because the allegedly 26 fraudulent actions “would have merely weakened Plaintiff’s case, rather than prevented him from 27 getting into court at all,” plaintiff at best alleged intrinsic fraud, so Rooker-Feldman bar applied 28 (cleaned up)). 1 Second, as clarified by the post-complaint filings, this lawsuit seeks to set aside the above- 2 mentioned Superior Court rulings. See Kougasian, 359 F.3d at 1140 (“Rooker-Feldman . . . 3 applies only when the federal plaintiff both [1] asserts as her injury legal error or errors by the 4 state court and [2] seeks as her remedy relief from the state court judgment.”); Cooper v. Ramos, 5 704 F.3d 772, 777-78 (9th Cir. 2012) (“To determine whether an action functions as a de facto 6 appeal, [courts] pay close attention to the relief sought by the federal-court plaintiff.” (quotation 7 omitted)). 8 The complaint itself is unclear as to what relief plaintiff seeks—other than holding every 9 defendant “guilty” of fraud. Plaintiff’s several subsequent motions and filings, however, 10 repeatedly and explicitly request relief from the Superior Court’s various rulings. (See ECF 11 Nos. 5, 6, 8, motions for “Relief From a Judgment Under Federal Rule 60(b)(6)”; ECF No. 6 at 1, 12 stating “I would like immediately the (Stay Away) Restraining order revoked,” which would void 13 all other judgments since produced; ECF No. 11 at 2, intent to have all judgments “vitiated” and 14 thereby return his ownership interest in properties; ECF No. 12 at 2, “requesting for a[n] 15 immediate release from the (Judgement)” of the Superior Court.) These express requests for 16 relief from the state court’s judgment easily satisfy the second element of a de facto appeal. See 17 Kougasian, 359 F.3d at 1140. For plaintiff’s benefit, the court notes that Federal Rule 60(b)(6) 18 only permits a court to grant a litigant relief from judgment previously entered by the same court. 19 It does not provide a method of challenging another court’s judgment. 20 Finally, plaintiff’s complaint raises no other claims beyond those contesting the Superior 21 Court’s rulings described above. Thus, the court need not analyze whether any claims are 22 “inextricably intertwined” with an issue resolved by the Superior Court. See Kougasian, 359 F.3d 23 at 1142 (“The inextricably intertwined test . . . allows courts to dismiss claims closely related to 24 claims that are themselves barred under Rooker-Feldman.”). 25 Accordingly, this suit is barred by the Rooker-Feldman doctrine and must be dismissed 26 for that reason as well. 27 //// 28 //// 1 2. Res Judicata from the 537 Action 2 Finally, there is one more reason that this suit must be dismissed: res judicata. The 3 doctrine of res judicata, also known as claim preclusion, protects “litigants from the burden of 4 relitigating an identical issue” and promotes “judicial economy by preventing needless litigation.” 5 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Res judicata provides that “a final 6 judgment on the merits bars further claims by parties or their privies based on the same cause of 7 action.” Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). “The 8 elements necessary to establish res judicata are: (1) an identity of claims, (2) a final judgment on 9 the merits, and (3) privity between parties.” Id. at 1052 (internal quotation omitted).6 10 Comparing the March 2021 complaint filed in the 537 Action and the complaint filed in 11 this case, it appears that all three elements are satisfied so as to bar plaintiff from proceeding with 12 this litigation. As to the first and second elements, both complaints assert identical purported 13 causes of action under the state penal code and the Fourteenth Amendment, regarding the same 14 allegedly fraudulent conduct and conspiracies against plaintiff in the probate proceedings; and 15 both name the exact same defendants (with the 537 Action also naming a thirteenth additional 16 defendant not named here). Indeed, plaintiff confirms in the present complaint that he is “refiling 17 [his] case against all of the (Defendant’s) from my previous filing.” (ECF No. 1 at 10 (sic).) 18 As to the second element, the 537 Action resulted in a final judgment on the merits 19 because it was dismissed “with prejudice” under Rule 41(b) as a sanction for not complying with 20 court orders and failing to prosecute the case. (No. 2:21-cv-00537, ECF No. 15, recommending 21 dismissal sanction; id., ECF No. 18 at 2, adopting F&Rs and dismissing “with prejudice” under 22 Rule 41(b).) Several of the defendants moved to dismiss the 537 Action, and despite being given 23 24 6 “[I]f a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the [preclusion] defense has not been raised,” Arizona v. 25 California, 530 U.S. 392, 416 (2000), provided that the parties have an opportunity to be heard prior to dismissal. Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1054-55 (9th Cir. 2005). 26 “As a general matter, a court may, sua sponte, dismiss a case on preclusion grounds ‘where the 27 records of that court show that a previous action covering the same subject matter and parties had been dismissed.’” Id. (quoting Evarts v. W. Metal Finishing Co., 253 F.2d 637, 639 n.1 (9th Cir. 28 1958)). 1 multiple opportunities and a directive to respond to the motion, plaintiff failed to file any 2 opposition or notice of non-opposition. (Id., ECF Nos. 8, 9, 11.) After notifying plaintiff that 3 the case would be dismissed with prejudice as a sanction if plaintiff did not comply with the 4 court’s rules and orders, the magistrate judge recommended dismissal with prejudice under 5 Rule 41(b) based on his analysis of the Ferdik factors.7 (Id., ECF Nos. 11 at 2-3, 15 at 2-4.) The 6 district judge adopted that recommendation, and final judgment dismissing the action “with 7 prejudice” was entered on August 31, 2021 (id., ECF Nos. 18, 19)—many months before plaintiff 8 filed the present complaint on April 4, 2022. 9 The Supreme Court has held that a dismissal with prejudice under Rule 41(b) bars a 10 plaintiff from refiling the same claim in the same court. Semtek Int’l Inc. v. Lockheed Martin 11 Corp., 531 U.S. 497, 505–06 (2001); see Costello v. United States, 365 U.S. 265, 287 (1961) 12 (Rule 41(b) dismissals operate as adjudications on the merits where “the defendant has been put 13 to the trouble of preparing his defense”). By the terms of Rule 41(b), an involuntary dismissal 14 operates as an adjudication on the merits unless the dismissal order states otherwise, or if the 15 dismissal was for lack of jurisdiction, improper venue, or failure to join a necessary party. Fed. 16 R. Civ. P. 41(b). None of these exceptions applies here where the 537 Action was explicitly 17 dismissed “with prejudice” as a sanction for failure to follow court rules and failure to prosecute, 18 and the dismissal was ordered after weighing the Ferdik prejudice factors. C.f. Gibson v. Cty. of 19 Orange, No. 8:20-CV-01232-JWH-DFMx, 2021 WL 860000, at *7 (C.D. Cal. Mar. 8, 2021) 20 (finding prior court did not intend its dismissal with prejudice to have claim-preclusive effect 21 under Rule 41(b) because court did not conduct the required multi-factor prejudice analysis in its 22 dismissal order). 23 Thus, plaintiff’s claims against all twelve defendants are barred by the doctrine of res 24 judicata because they were previously adjudicated on the merits in the 537 Action. 25 //// 26 //// 27 28 7 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 1 RECOMMENDATION 2 For all of these reasons, it is HEREBY RECOMMENDED that: 3 1. This case be DISMISSED for lack of subject matter jurisdiction and as barred by res 4 judicata; 5 2. Plaintiffs miscellaneous motions (ECF Nos. 5, 6, 8, 12) be DENIED both as moot and as 6 procedurally improper; and 7 3. The Clerk of Court be instructed to close this case. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 10 || days after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 13 || shall be served on all parties and filed with the court within seven (7) days after service of the 14 || objections. The parties are advised that failure to file objections within the specified time may 15 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 16 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 17 18 ORDER 19 Because of the court’s findings and recommendations, it is HEREBY ORDERED that: 20 1. The Initial Scheduling Conference set for September 7, 2022 is VACATED; and 21 2. All pleading, discovery, and motion practice in this action are STAYED pending 22 resolution of these findings and recommendations. Other than objections to the findings 23 and recommendations or non-frivolous motions for emergency relief, the court will not 24 entertain or respond to any pleadings or motions until the findings and recommendations 25 are resolved. 26 | Dated: June 28, 2022 □□ / dp ai 7 CAROLYNK. DELANEY 28 |) 19, youn.0590 UNITED STATES MAGISTRATE JUDGE 1]