(PS) Newson v. Chen ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES NEWSON, No. 2:24-cv-00558 DAD AC (PS) 12 Plaintiff, 13 v. ORDER 14 NAN CHEN, Chief Financial Officer of California State Disbursement Unit, 15 Defendant. 16 17 18 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 19 undersigned by E.D. Cal. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma 20 pauperis (“IFP”) and have submitted the affidavit required by that statute. See 28 U.S.C. 21 § 1915(a)(1). The motion to proceed IFP will therefore be granted. 22 I. SCREENING 23 A. Legal Standard 24 The federal IFP statute requires federal courts to dismiss a case if the action is legally 25 “frivolous or malicious,” fails to state a claim upon which relief may be granted or seeks 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 27 Plaintiff must assist the court in determining whether the complaint is frivolous, by drafting the 28 complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). The 1 Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules-policies/current- 2 rules-practice-procedure/federal-rules-civil-procedure. 3 Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and 4 plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this 5 court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled 6 to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief 7 sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. 8 Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in 9 the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), 10 Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms. 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 13 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 14 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 15 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 16 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 17 denied, 564 U.S. 1037 (2011). 18 The court applies the same rules of construction in determining whether the complaint 19 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 20 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 21 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 22 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 23 (1972). However, the court need not accept as true conclusory allegations, unreasonable 24 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 25 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 26 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 27 556 U.S. 662, 678 (2009). 28 //// 1 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 2 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has 3 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 5 678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 6 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v. 7 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in 8 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc). 9 B. The Complaint 10 Plaintiff sues Nan Chen, whom he alleges is the Chief Financial Officer of the California 11 State Disbursement Unit for San Joaquin County, for violations of 31 U.S.C. §3123, 18 U.S.C. 12 §8, 12 U.S.C. §504, the Bill of Exchange Act of 1882, and 42 U.S.C. 1983. ECF No. 1 at 1-4. 13 Jurisdiction is asserted based 28 U.S.C. §1331 (federal question). Id. at 3. Plaintiff alleges he 14 sent the California State Disbursement Unit for San Joaquin County Child Support a “notice of 15 claim to interest” on October 26, 2023, again on November 20, 2023, and again on December 4, 16 2023, but his account has not been credited. Id. at 5. Plaintiff alleges that Chen has not accepted 17 his tender of payment and intentionally ignored his letters, depriving him of his rights and 18 privileges and leading him to lose his driver’s license. Id. Plaintiff asks the court to order Chen 19 to apply his tender of payment in the amount of $136,122.06, and for damages in the amount of 20 $408,386.00. Id. at 6. 21 Plaintiff attaches to his complaint copies of the notices with photocopies of the postage. 22 Id. at 8-10. The notices instruct Chen to “apply Principal balance to Principal Account” but do 23 not contain any information about the alleged payment. Id. Plaintiff also attaches a photo of a 24 durable power of attorney document which has a “Payment Coupon” lying on top of it; the 25 coupon appears to be a form issued by the California State Disbursement Unit. The Coupon 26 instructs the holder to write the payment ID number “on your check.” Id. at 11. In handwriting 27 on this Coupon, the words “One Hundred Thirty-six thousand one Hundred twenty-two and 28 06/100” are written, with the handwritten words “Pay to Bearer” and “Pay on Demand” written 1 underneath. Id. Plaintiff also attaches a photocopy of a notarized durable power of attorney 2 document, in which he assigns durable power of attorney to himself. Id. at 13-14. 3 C. Analysis 4 The complaint does not present a plausible legal claim upon which relief can be granted. 5 Though plaintiff names several federal statutes, only one of the statutes he cites provides a private 6 cause of action, and the complaint does not provide facts to support a legal claim under that 7 statute. First, 12 U.S.C. §504 is a statute that applies to banks that are members of the Federal 8 Reserve. The California State Disbursement Unit (“CSDU”) is a centralized payment processing 9 center for child support payments in California; it is an agency of the State of California and is 10 not a bank subject to this code. Likewise, 31 U.S.C. §3123 relates to the federal government’s 11 obligations regarding payment on federal government bonds; it plainly does not apply to CSDU. 12 The plain text of both federal statutes makes clear that they are inapplicable to plaintiff’s facts. 13 Second, plaintiff’s citation to the Bill of Exchange Act is frivolous; there is no such 14 federal law, and courts have routinely found citations to the “Bill of Exchange Act” to be 15 frivolous. See, e.g., Smith v. Osvaldik, No. 1:23-CV-01488-HBK, 2024 WL 733227, at *4, 2024 16 U.S. Dist. LEXIS 30497 (E.D. Cal. Feb. 22, 2024), report and recommendation adopted, No. 17 1:23-CV-1488 JLT HBK, 2024 WL 1160680 (E.D. Cal. Mar. 18, 2024); Davis v. ACEF Martin 18 Folsom LLC, No. 2:23-cv-2816-TLN-KJN-PS, 2023 WL 8477987, at *2, 2023 U.S. Dist. LEXIS 19 217961 (E.D. Cal. Dec. 7, 2023). Third, as to plaintiff’s reference to 18 U.S.C. § 8, the cited 20 provision defines the phrase “obligation or other security of the United States” for purposes of the 21 federal criminal code; it creates no cause of action. Plaintiff is informed that “[c]riminal 22 proceedings, unlike private civil proceedings, are public acts initiated and controlled by the 23 Executive Branch.” Clinton v. Jones, 520 U.S. 681, 718 (1997). Accordingly, Title 18 of the 24 United States Code does not establish any private right of action and cannot support a civil 25 lawsuit. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (criminal provisions provide 26 no basis for civil liability). 27 Fourth and finally, the only federal statute that plaintiff cites that could possibly provide a 28 cause of action is 42 U.S.C. § 1983, but the complaint does not contain any facts that would 1 support a claim under this provision. Section 1983 “creates a cause of action against a person 2 who, acting under color of state law, deprives another of rights guaranteed under the 3 Constitution.” Henderson v. City of Simi Valley, 305 F.3d 1052, 1056 (9th Cir. 2002). To state a 4 claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state 5 law, and (2) the defendant deprived him of rights secured by the Constitution or federal law. 6 Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v. County 7 of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”). A 8 person deprives another person of a constitutional right “within the meaning of § 1983, ‘if he does 9 an affirmative act, participates in another’s affirmative act, or omits to perform an act which he is 10 legally required to do that causes the deprivation of which complaint is made.’” Preschooler II v. 11 Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 12 588 F.2d 740, 743 (9th Cir. 1978)). To allege a claim under §1983, the complaint must identify 13 which of plaintiff’s constitutional rights were allegedly violated by which acts of which 14 defendants, and plaintiff must provide supporting facts. Plaintiff will be given leave to file an 15 amended complaint that properly alleges a claim under § 1983. 16 As drafted, the complaint does not state a claim upon which relief can be granted. Rather 17 than recommending dismissal of the action, the undersigned will provide plaintiff an opportunity 18 to amend his complaint to allege a cognizable cause of action. 19 II. AMENDING THE COMPLAINT 20 If plaintiff chooses to amend the complaint, the amended complaint must properly state a 21 claim under 24 U.S.C. § 1983 or another federal law that provides a cause of action and must 22 provide facts sufficient to support a legal claim. It must contain a short and plain statement of 23 plaintiff’s claims. The allegations of the complaint must be set forth in sequentially numbered 24 paragraphs, with each paragraph number being one greater than the one before, each paragraph 25 having its own number, and no paragraph number being repeated anywhere in the complaint. 26 Each paragraph should be limited “to a single set of circumstances” where possible. Rule 10(b). 27 As noted above, forms are available to help plaintiffs organize their complaint in the proper way. 28 //// 1 They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 2 95814, or online at www.uscourts.gov/forms/pro-se-forms. 3 Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid 4 narrative and storytelling. That is, the complaint should not include every detail of what 5 happened, nor recount the details of conversations (unless necessary to establish the claim), nor 6 give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should 7 contain only those facts needed to show how the defendant legally wronged the plaintiff. 8 The amended complaint must not force the court and the defendants to guess at what is 9 being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) 10 (affirming dismissal of a complaint where the district court was “literally guessing as to what 11 facts support the legal claims being asserted against certain defendants”). The amended 12 complaint must not require the court to spend its time “preparing the ‘short and plain statement’ 13 which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not 14 require the court and defendants to prepare lengthy outlines “to determine who is being sued for 15 what.” Id. at 1179. 16 Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s 17 amended complaint complete. An amended complaint must be complete in itself without 18 reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended 19 complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline 20 Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint 21 supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice & 22 Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an 23 original complaint, each claim and the involvement of each defendant must be sufficiently 24 alleged. 25 III. PRO SE PLAINTIFF’S SUMMARY 26 It is not clear that this case can proceed. The federal statutes you list for your claims do 27 not give you any right to sue, except for 42 U.S.C. §1983. However, your complaint does not 28 contain enough information to support a §1983 claim. 1 You are being given 30 days to submit an amended complaint. In your amended 2 || complaint, you need to tell the court which of your constitutional rights was violated, who 3 || violated that right, how it was violated, and how the violation impacted you. If you do not submit 4 || an amended complaint by the deadline, the undersigned will recommend that the case be 5 || dismissed. 6 IV. CONCLUSION 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is GRANTED; 9 2. Plaintiff shall have 30 days from the date of this order to file an amended complaint that 10 complies with the instructions given above. If plaintiff fails to timely comply with this 11 order, the undersigned may recommend that this action be dismissed. 12 | DATED: May 30, 2024 ~ 13 Chthion— Chore ALLISON CLAIRE 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28