Hinojo v. Zuckerberg ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO GARCIA HINOJO, III, Case No. 1:23-cv-01184-JLT-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION 13 v. AS FRIVOLOUS 14 MARK ZUCKERBERG, et al., (ECF No. 1) 15 Defendants. OBJECTIONS DUE WITHIN TWENTY- ONE DAYS 16 17 I. 18 INTRODUCTION 19 Plaintiff Francisco Garcia Hinojo, III is appearing pro se in this action filed on August 9, 20 2023. (ECF No. 1.) On August 11, 2023, the Court issued findings and recommendations that 21 Plaintiff’s motion to proceed in forma pauperis be denied. (ECF No. 3.) On September 15, 22 2023, the District Judge adopted the findings and recommendations and ordered Plaintiff to pay 23 the filing fee to proceed. (ECF No. 4.) On September 21, 2023, Plaintiff paid the filing fee in 24 this action. Based on review of the complaint, the Court issues the following findings and 25 recommendations recommending that this action be dismissed for being frivolous, and lacking in 26 any arguable basis of fact or law. 27 / / / / / / 1 II. 2 LEGAL STANDARD 3 “A district court has the inherent authority to dismiss frivolous actions.” Baldhosky v. 4 California, No. 114CV00166LJOMJSPC, 2018 WL 1407103, at *3 (E.D. Cal. Mar. 21, 2018) 5 (citing Damjanovic v. Ambrose, 991 F.2d 803 (9th Cir. 1993) (“Damjanovic”); Sparling v. 6 Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (“Sparling”); Fitzgerald v. First East 7 Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000)); see also Ireland v. Buffet, No. 8 122CV00497JLTBAM, 2023 WL 2938377, at *1 (E.D. Cal. Apr. 13, 2023) (noting same and 9 citing to same Damjanovic and Sparling), report and recommendation adopted, No. 10 122CV00497JLTBAM, 2023 WL 3319091 (E.D. Cal. May 9, 2023);1 Stevens v. Rifkin, 608 F. 11 Supp. 710, 733 (N.D. Cal. 1984) (“[T]he Court will dismiss plaintiffs’ Complaint as against the 12 SPCA pursuant to its inherent power to dismiss frivolous lawsuits.”); In re Van Owen Car Wash, 13 Inc., 82 B.R. 671, 674 (Bankr. C.D. Cal. 1988) (“[J]udicial power in bankruptcy judges is 14 analogous to the broad, inherent power of district court judges to dismiss collusive, sham, and 15 frivolous suits, and needs no statutory basis.”). 16 “A paid complaint that is ‘obviously frivolous’ does not confer federal subject matter 17 jurisdiction . . . and may be dismissed sua sponte before service of process.” Franklin v. 18 Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (citing Hagans v. Lavine, 415 U.S. 528, 536– 19 37, (1974)), abrogated by Neitzke v. Williams, 490 U.S. 319 (1989). Thus, “[w]here a complaint 20 is ‘obviously frivolous’ the district court may dismiss the complaint, even if the plaintiff has paid 21 the filing fee.” Wallace v. Lynch, No. 220CV2265TLNDBPS, 2021 WL 2016620, at *1 (E.D. 22 Cal. May 20, 2021) (quoting Franklin, 745 F.2d at 1227 n.6). “However, this authority extends 23 1 The Court notes that Damjanovic is an unpublished Ninth Circuit opinion. See Ninth Circuit Rule 36-3 24 (“Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to the courts of this circuit, except in the following circumstances . . . when relevant under the doctrine of law of the case or rules of 25 claim preclusion or issue preclusion . . . for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys' fees, or the existence of a related case . . . [or] in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to 26 demonstrate the existence of a conflict among opinions, dispositions, or orders.”) (emphasis added). The Court notes that Sparling stated “[a] trial court may act on its own initiative to note the inadequacy of a complaint and 27 dismiss it for failure to state a claim . . . [and] must give notice of its intention to dismiss and give the plaintiff some opportunity to respond unless the ‘[p]laintiffs cannot possibly win relief.’ ” Sparling, 864 F.2d at 638 (emphasis 1 only to suits that lack ‘an arguable basis either in law or fact.’ ” Baldhosky, 2018 WL 1407103, 2 at *3(quoting Greathouse v. JHS Sec. Inc., 784 F.3d 105, 119 (2d Cir. 2015)). “Unlike the 3 authority provided under the in forma pauperis statute, the court’s inherent authority to dismiss 4 sua sponte does not extend to ‘otherwise well-pled claims for relief on the ground that they fail 5 to state a claim.’ ” Baldhosky, 2018 WL 1407103, at *3 (quoting Greathouse, 784 F.3d at 119- 6 20) (citing Nietzke, 490 U.S. at 329–30); see also Anderson, No. MC 18-3-M-DLC-JCL, 2018 7 WL 4901082, at *1 (D. Mont. June 26, 2018) (“[E]ven where the filing fee is paid, the court has 8 the inherent authority to dismiss a complaint that is frivolous and lacking any arguable basis in 9 law or fact.” (citing Baldhosky 2018 WL 1407103 *3)). 10 The Court has an independent obligation to determine whether it has subject-matter 11 jurisdiction. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal 12 courts have an independent obligation to ensure that they do not exceed the scope of their 13 jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties 14 either overlook or elect not to press.”); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 514 15 (2006) (noting that “subject-matter jurisdiction, because it involves a court’s power to hear a 16 case, can never be forfeited or waived”); Wilson v. Lynch, 835 F.3d 1083, 1091 (9th Cir. 2016). 17 Consequently, “[f]ederal courts are required sua sponte to examine jurisdictional issues such as 18 standing.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008); 19 Bernhardt v. Cnty. of L.A., 279 F.3d 862, 868 (9th Cir. 2002) (internal quotation marks omitted 20 and citations omitted); accord U.S. v. Hays, 515 U.S. 737, 742 (1995); Apple v. Glenn, 183 F.3d 21 477, 479 (6th Cir. 1999) (“Generally, a district court may not sua sponte dismiss a complaint 22 where the filing fee has been paid unless the court gives the plaintiff the opportunity to amend 23 the complaint . . . [however] a district court may, at any time, sua sponte dismiss a complaint for 24 lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil 25 Procedure when the allegations of a complaint are totally implausible, attenuated, unsubstantial, 26 frivolous, devoid of merit, or no longer open to discussion.”). 27 Courts are to liberally construe documents filed pro se, and “a pro se complaint, however 1 lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); see also Wilhelm v. 2 Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (“[W]here the petitioner is pro se, particularly in 3 civil rights cases, [courts should] construe the pleadings liberally and … afford the petitioner the 4 benefit of any doubt.” (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010))). 5 Nonetheless, while factual allegations are accepted as true, legal conclusions are not. Bell 6 Atlantic Corp. v. Twombly (Twombly), 550 U.S. 544, 555 (2007). Leave to amend may be 7 granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. 8 U.S., 70 F.3d 1103, 1106 (9th Cir. 1995). 9 III. 10 DISCUSSION 11 Plaintiff names the following Defendants: (1) Mark Zuckerberg, identified as CEO of 12 Meta and Facebook; (2) Lisa Smittcamp, identified as District Attorney of Fresno County; (3) 13 Jerry Dyer, identified as Mayor of Fresno; (4) and Stacy Cordero, identified as a Senior 14 Investigator for the County of Fresno. (Compl. 2-3, ECF No. 1.) 15 As a basis for jurisdiction, Plaintiff checks the box for diversity jurisdiction. (Compl. 3.) 16 However, Plaintiff identifies himself and Mark Zuckerberg as both citizens of California, and 17 thus has not pled diversity jurisdiction. 18 Plaintiff also fills in information in the area requesting information pertaining to federal 19 question jurisdiction. There, Plaintiff cites to at least fourteen (14) different federal statutes, 20 including the following identified by name: the Patriot Act, the Freedom of Information Act, and 21 ERISA. Plaintiff also cites to California penal statutes, for example, Penal Code § 132, 22 pertaining to falsifying evidence, and bribing, influencing, intimidating or threatening witnesses. 23 Plaintiff also appears to cite to Standard 2.11, Title IV of the Rules of Procedure of the State Bar 24 of California, which provides for disbarring an attorney for committing an act of moral turpitude. 25 A review of some of the federal statutes reveals no apparent connection to the lawsuit, 26 and Plaintiff does not explain the reasoning behind the citations as to support federal jurisdiction. 27 For example, 15 U.S.C. § 7001, states in one part, “that with respect to any transaction in or 1 such transaction may not be denied legal effect, validity, or enforceability solely because it is in 2 electronic form.” 15 U.S.C. § 7001(a)(1). Plaintiff cites to 15 U.S.C. § 2087, which pertains to 3 whistleblower protection for employees discharged by a “manufacturer, private labeler, 4 distributor, or retailer.” 15 U.S.C. § 2087(a). 5 For amount in controversy, Plaintiff writes “Mark Zuckerberg allowed criminal 6 investigations with settlements and lawsuits and overall thirty billion for this $30,000,000,000.” 7 (Compl. 5 (capitalization altered).) 8 Under statement of claim, Plaintiff writes “amount ($30,000,000,000) thirty billion 9 dollars and criminal prosecution . . . additional forms attached.” (Id. (capitalization altered).) 10 For relief, Plaintiff writes: “moral turpitude 2.11 (18 U.S.C. 242) (18 U.S.C. 241), theft 11 and fraud, deprivation of rights 18 U.S.C. 241, civil harassment, obstruction of justice, evidence, 12 witnesses, and cases.” (Compl. 6.) 13 Plaintiff attached various exhibits that have no clear connection to the above allegations 14 and claims. The first exhibit appears to be an email from Defendant Stacy Cordero, acting as 15 Senior Investigator for the Office of the District Attorney, County of Fresno, responding to an 16 email sent from what appears to be Plaintiff’s email account, with the subject line “Welfare 17 Fraud and Child Endangerment and Negligience [sic].” (Compl. 7.) The next exhibit is an 18 account summary from “FasTrak Customer Service,” apparently relating to tolls charged to 19 Plaintiff. (Compl. 8.) The next exhibit is a printout from what appears to be the United States 20 Secret Service website, and the National Center for Missing and Exploited Children Liaison.” 21 (Compl. 9.) The next attachment is a letter dated September 22, 2016, from the office of then 22 Attorney General Kamala Harris, relating to Plaintiff’s request for criminal history records. 23 (Compl. 10.) 24 Plaintiff then attaches typewritten documents pertaining to other cases, and the 25 Defendants in this case. In part, describing other cases, Plaintiff writes: 26 Needing enough evidence for All active and “ON-GOING” investigations against me, (1:23-CV-00481-JLT-BAM), proves 27 how my credit score is targeted daily along with my financial accounts being grossly handled, including healthcare concerns over 1 case I recently filed . . . . . . A little about myself I have been on surveillance most of my 2 life, well, we’ll say my whole life. My family being involved with the Department of Treasure . . . Department of Justice and [i]n 3 Politics living on a LIVE system is a must, it’s the Federal Government and its paranoia. Yet, with family and myself being 4 involved with immigration and agriculture we are familiar with the [DHS] (PATRIOT ACT/FISA). . . . Through the Holy See 5 (Catholic Church) my surveillance and case reached the United Nations and International Court of Justice in which the United 6 States Supreme Court has access to the same warrants . . . I reached out to the Attorney General who is now Vice-President 7 Kamala Harris regarding surveillance and investigations hoping to get some feedback. 8 9 (Compl. 12-13.) 10 Plaintiff lists the following investigations: “FBI, CIA, CPS/HHS, White House (USSS), 11 Congress (USSS), District Attorney Fresno, District Attorney Alameda County, California 12 Attorney General’s Office, Fresno Police, Fresno County Sheriff, United Nations (USSS) 13 (INTERPOL), Catholic Church (USSS) (INTERPOL.” (Compl. 13.) Plaintiff states to 14 cooperate “with the investigations and communicate with the investigators I needed to use social 15 media to avoid obstruction of justice [18 U.S.C. § 510] with the Government Officials involved I 16 had to avoid sophisticated obstacles [18 U.S.C. § 241[ [and] [m]y trust issues in these 17 conversations opened awareness and suspicion [18 U.S.C. § 242] 2.11 Moral Turpitude.” 18 (Compl. 13.) 19 The complaint continues in the same fashion listing similar general allegations under the 20 named Defendants, without a clear factual basis actually connected to the listed Defendants. 21 (Compl. 14-18.) For example, under Mark Zuckerberg, Plaintiff begins by stating: 22 Donald John Trump was a figure I reached out to regarding many of my concerns . . . [t]he case would be in achieves through the 23 USSS. Don’t forget the investigations that were opened before the Facebook account. Candidate Trump and I used the same United 24 States Secret Service . . . During Former President Trumps Tenure, I was consistent- with messaging using Facebook as I do today, its 25 surveillance no way around the warrants. 26 (Compl. 14.) As another example, under Defendant Lisa Smittcamp, Plaintiff writes: 27 As the City’s Public Defense and Prosecutor most, influential cases were overlooked by this Attorney. Yet, on DA Smittcamp[’]s term 1 other independent contractor to correct and restore confidence to the community. Public Corruption, Human Trafficking, Sex 2 Trafficking, Drug Trafficking, Theft by Deception/Phishing . . . 3 (Compl. 16.) 4 A pleading is “factual[ly] frivolous[ ]” when “the facts alleged rise to the level of the 5 irrational or the wholly incredible, whether or not there are judicially noticeable facts available to 6 contradict them.” Denton v. Hernandez, 504 U.S. 25, 25-26 (1992). Clearly baseless factual 7 allegations include those “that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’ ” Denton, 504 U.S. at 8 32-33 (quoting Neitzke, 490 U.S. at 325, 327, 328). Here, the Court finds that Plaintiff has 9 alleged claims that are frivolous and lacking any arguable basis in law or fact, and therefore 10 recommends sua sponte dismissal pursuant to the Court’s inherent authority. See Baldhosky 11 2018 WL 1407103 *3); Franklin, 745 F.2d at 1227 n.6; Hinojo v. United States, No. 12 123CV00481JLTBAM, 2023 WL 2976299, at *2 (E.D. Cal. Apr. 17, 2023) (“The court 13 concludes that the allegations in the complaint are fanciful, insubstantial, devoid of merit, and 14 frivolous . . . Plaintiff seeks relief of $30,000,000,000.00 for an unspecified ‘medical related’ 15 issue . . . [and] further cites statutes that appear unrelated to personal medical issues.”), report 16 and recommendation adopted, No. 1:23-CV-0481 JLT BAM, 2023 WL 4087583 (E.D. Cal. June 17 20, 2023). 18 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be freely 19 given when justice so requires. Fed. R. Civ. P. 15(a)(2). In this instance, the Court finds no 20 amendment could cure the frivolous nature of the complaint. Nunes v. Ashcroft, 375 F.3d 805, 21 808 (9th Cir. 2004; Washington v. Lowe’s HIW Inc., 75 F. Supp. 3d 1240, 1245 (N.D. Cal. 22 2014), appeal dismissed (Feb. 25, 2015). Accordingly, the Court finds that granting leave to 23 amend would be futile and this action should be dismissed without leave to amend. 24 Nonetheless, the Court shall provide twenty-one (21) days to file objections. See 25 Douglas v. Kalanta, No. 121CV01535JLTEPGPC, 2022 WL 16748728, at *11 n.11 (E.D. Cal. 26 Nov. 7, 2022) (noting “a sua sponte dismissal generally requires notice and an opportunity to be 27 heard before the dismissal,” and stating “[t]hese findings and recommendations shall service as notice to Plaintiffs that the claims against Defendant Modesto Police Department may sua sponte 1 | be dismissed and Plaintiffs shall have the opportunity to be heard by being permitted to file 2 | objections within twenty-one days of these findings and recommendations.” (citing Baldhosky, 3 | 2018 WL 1407103, at *3)), report and recommendation adopted, No. 121CV0O1535JLTEPG, 4 | 2022 WL 17834036 (E.D. Cal. Dec. 21, 2022) 5 IV. 6 RECOMMENDATION 7 Based on the foregoing, IT IS HEREBY RECOMMENDED that, pursuant to the Court’s 8 | inherent authority, Plaintiff's complaint be sua sponte dismissed without leave to amend, as 9 | frivolous and lacking an arguable basis in fact or law. 10 These findings and recommendations are submitted to the District Judge to be assigned to 11 | this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within 12 | twenty-one (21) days of service of these recommendations, Plaintiff may file written objections 13 | to these findings and recommendations with the Court. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” The District Judge will 15 | review the Magistrate Judge’s findings and recommendations pursuant to 28 U.S.C. § 16 | 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 17 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 18 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. OF. ee 21 | Dated: _September 29, 2023 _ ef UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28