Opinion
No. 2:15-cv-664-TLN-EFB PS
05-17-2016
DMITRIY YEGOROV, Plaintiff, v. ULYANA ZIGAYLO, Defendant.
ORDER
Plaintiff requests authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis, and has submitted the affidavit required thereunder which demonstrates that plaintiff is unable to prepay fees and costs or give security for them. ECF Nos. 2, 4. Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). --------
Determining that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. As explained below, plaintiff's complaint fails to establish that this court has subject matter jurisdiction over this action, and therefore the complaint must be dismissed.
Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) "requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer "federal question" and "diversity" jurisdiction, respectively. Federal question jurisdiction requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be authorized by a federal statute that both regulates a specific subject matter and confers federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court's diversity jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
Plaintiff's complaint is unintelligible. A precise basis for his claims cannot be determined from the allegations. Plaintiff's complaint lists a variety of grievances with a landlord, none of which give rise to federal question jurisdiction. As far as the court can discern, plaintiff claims that he rented a room in a house owned by defendant Ulyana Zigaylo. ECF No. 1 at 2. Plaintiff alleges, however, that at the time he rented the room he was not informed that defendant operated a business on the premises that involved constructing bee houses. Id. For reasons that are unclear, operation of the business required plaintiff to remove his car from the driveway every day, which plaintiff finds unacceptable. Id. Plaintiff further claims on December 29, 2014, a woman opened the door to his room without permission. Id. She stated that defendant gave her a key to plaintiff's room and that she was there "to pick up her staff [sic]." Id. Plaintiff appears to allege that the woman was an emigrant from Ukraine who was able to obtain refugee status by using fraudulent documents. Id. at 3.
The complaint also alleges that members of defendant's "Gang and illegal business" removed a new wooden fence and then built another wooden fence. Id. at 4. He also claims that other workers damaged his car and had his car towed from the home's driveway. Id. The complaint requests that the court order the FBI to investigate "all illegal emigrants from Ukraine members Sacramento Adventist church and members gang family Ulyana Zigaylo and order Ulyana Zigaylo to pay [plaintiff] for all financial damages, verbal abuse, harassment by phone, psychological stress and suffering damages." Id. at 5.
It is unclear whether plaintiff can allege facts that would establish this court has subject matter jurisdiction over this action. He has not done so in the existing complaint. Plaintiff does not allege the citizenship of the parties and has not established diversity jurisdiction. The complaint's caption page does reference 18 U.S.C. §§ 241, 242, and 243. However, these criminal statutes do not give rise to a private cause of action. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (18 U.S.C. §§ 241 and 242 are "criminal provisions [which] provide no basis for civil liability"); Quadra v. Super. Ct. of S.F., 378 F. Supp. 605, 609 (N.D. Cal 1974) (finding that 18 U.S.C. § 243 does not provide a basis for civil liability). Thus, to the extent plaintiff's claims are predicated on a violation of these statues, such claims must be dismissed.
Accordingly, the complaint must be dismissed both for failure to state a claim and for lack of subject matter jurisdiction. However, plaintiff is granted leave to file an amended complaint to provide him another opportunity to allege facts which establish this court's subject matter jurisdiction, as well as a cognizable legal theory against a proper defendant. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the allegations against defendant and shall specify a basis for this court's subject matter jurisdiction. Any amended complaint shall plead plaintiff's claims in "numbered paragraphs, each limited as far as practicable to a single set of circumstances," as required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts that support each claim under each header.
Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to make an amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once plaintiff files an amended complaint, the original no longer serves any function in the case. Therefore, "a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint," London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil Procedure, this court's Local Rules, or any court order may result in a recommendation that this action be dismissed. See Local Rule 110.
Accordingly, it is hereby ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis (ECF Nos. 3, 4) is granted.
2. Plaintiff's complaint is dismissed with leave to amend, as provided herein.
3. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint. The amended complaint must bear the docket number assigned to this case and must be labeled "First Amended Complaint." Failure to timely file an amended complaint in accordance with this order will result in a recommendation this action be dismissed. DATED: May 17, 2016.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE