Jones v. Pope

• Court: District Court, E.D. California
• Decided: October 25, 2022
• Docket: 1:22-cv-01232
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DAVID D. JONES and FAAVAOA JONES, Case No. 1:22-cv-01232-SKO

10 Plaintiffs, FINDINGS AND RECOMMENDATION TO DISMISS FOR FAILURE TO STATE 11 v. A CLAIM

12 (Doc. 1)

13 THOMAS J. POPE, 21-DAY DEADLINE

14 Defendant. Clerk to Assign District Judge 15

16 17 I. INTRODUCTION 18 A. Background 19 On September 27, 2022, Plaintiffs David D. Jones and Faavaoa Jones (“Plaintiffs”), 20 proceeding pro se, filed an action. (Doc. 1 (“Compl.”).) On that same date, Plaintiffs also filed 21 applications to proceed in forma pauperis, which were granted on October 3, 2022. (Docs. 2, 3 & 22 4.) Plaintiffs’ complaint is now before the Court for screening. The undersigned finds that Plaintiffs 23 have not stated a cognizable claim and will recommend that this action be dismissed, without leave 24 to amend, for failure to state a claim upon which relief may be granted and lack of jurisdiction. 25 B. Screening Requirement and Standard 26 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 27 each case and shall dismiss the case at any time if the Court determines the allegation of poverty is 28 1 untrue, or the action is frivolous or malicious, fails to state a claim upon which relief may be granted, 2 or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 3 1915(e)(2). If the Court determines that a complaint fails to state a claim, leave to amend may be 4 granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. 5 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 6 The Court’s screening of a complaint under 28 U.S.C. § 1915(e)(2) is governed by the 7 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 8 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 9 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff 10 must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant 11 fair notice of what the plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil 12 v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 13 (9th Cir. 1991). 14 C. Summary of the Complaint 15 Plaintiffs are the parents of Jessie J. Jones (“Mr. Jones”), who was arrested by the 16 Bakersfield Police Department and charged with a single count of indecent exposure. (See Compl. 17 at 1) According to Plaintiffs, Defendant Thomas J. Pope was assigned by the Kern County Public 18 Defender's Office as the attorney for Plaintiffs’ son. (Id.) Plaintiffs allege that, during the 19 prosecution, Defendant informed his client Mr. Jones that there was a “new charge of sexual battery 20 against him” and that Defendant “reviewed a security video and was to see [Mr. Jones] touching the 21 buttocks of the female victim.” (Id.) Defendant “convinced [Mr. Jones] that he had no other 22 alternative but the [sic] plead no contest in order to receive a lesser sentence in prison.” (Id.) 23 Plaintiffs allege that, after the sentencing, they met with Defendant, who “swore this video 24 evidence existed,” but that after “further investigation” and speaking with Mr. Jones in jail, “they 25 discovered that there was no video evidence of their son’s supposed crime.” (Compl. at 2.) They 26 assert a single cause of action for “[c]orruption by way of violation of the Business and Professions 27 Code 6128, where the Defendant lied and engaged in deceit of information related to the status of 28 the Plaintiffs son's criminal case.” (Id.) 1 D. Pleading Requirements Under Federal Rule of Civil Procedure 8(a) 2 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 3 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 4 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. 5 P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim 6 is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal quotation marks 7 and citation omitted). 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 9 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 10 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff 11 must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 12 face.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted 13 as true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 14 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 15 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 16 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal theories. 17 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 18 rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns 19 v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation marks and 20 citation omitted), and courts “are not required to indulge unwarranted inferences,” Doe I v. Wal- 21 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 22 The “sheer possibility that a defendant has acted unlawfully” is not sufficient to state a cognizable 23 claim, and “facts that are merely consistent with a defendant’s liability” fall short. Iqbal, 556 U.S. 24 at 678 (internal quotation marks and citation omitted). 25 II. DISCUSSION 26 A. Plaintiffs Have Not Pleaded Any Cognizable Federal Claim 27 Federal courts have no power to consider claims for which they lack subject-matter 28 jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); see also Vacek v. 1 United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006) (citing Kokkonen v. Guardian Life 2 Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Subject matter jurisdiction is determined and must exist 3 at the time the complaint is filed. See Morongo Band of Mission Indians v. Cal. State Bd. of 4 Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988) (looking to original complaint, and not amended 5 complaint, for subject matter jurisdiction). This Court has an independent duty to consider its own subject-matter jurisdiction, whether 6 or not the issue is raised by the parties, (id.,) and must dismiss an action over which it lacks 7 jurisdiction. Fed. R. Civ. P. 12(h)(3); see also Cal. Diversified Promotions, Inc. v. Musick, 505 F.2d 8 278, 280 (9th Cir. 1974) (“It has long been held that a judge can dismiss sua sponte for lack of 9 jurisdiction.”). The burden is on the federal plaintiff to allege facts establishing that jurisdiction 10 exists to hear their claims. 11 Plaintiffs allege a claim for “corruption” under California Business and Professions Code § 12 6128. That section provides, in pertinent part: “Every attorney is guilty of a misdemeanor who . . . 13 (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive 14 the court or any party.” Cal. Bus. & Prof. Code § 6128(a). A violation of § 6128(a) “is punishable 15 by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two 16 thousand five hundred dollars ($2,500), or by both.” Id. § 6128(c).1 17 A private right of action under a criminal statute has rarely been implied. Chrysler Corp. v. 18 Brown, 441 U.S. 281, 316 (1979). Where a private right of action has been implied, “‘there was at 19 least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone’” 20 Id. (quoting Cort v. Ash, 422 U.S. 66, 79 (1975)). The Court has reviewed the statute and there is 21 no indication that civil enforcement of any kind is available to Liao. Cort, 422 U.S. at 79–80; 22 Keaukaha–Panaewa Cmty. Ass'n v. Hawaiian Homes Comm'n, 739 F.2d 1467, 1469–70 (9th 23 Cir.1984). In short, neither the statute, nor any authority of which this Court is aware, authorizes 24 Plaintiffs to bring a civil cause of action based on an alleged violation of § 6128. See Liao v. 25 Ashcroft, No. C 08-2776 PJH, 2009 WL 1371691, at *4 (N.D. Cal. May 15, 2009) (dismissing § 26 6128 claim). 27 1 An attorney's conduct in violation of § 6128 is a crime for which a criminal prosecution may be brought. See Action 28 Apartment Ass'n, Inc. v. City of Santa Action Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1246, 63 1 Because Plaintiffs have not articulated any cognizable federal claim over which this Court 2 may assert jurisdiction, dismissal is recommended.2 3 B. The Court Lacks Diversity Jurisdiction over Plaintiffs’ State Law Claim 4 Subject matter jurisdiction to hear a federal plaintiff’s claim must either arise under the 5 Constitution or be established by diversity jurisdiction. 28 U.S.C. §§ 1331 and 1332. Here, even if 6 there were such a private right of action under California Business and Professions Code § 6128, this claim is a violation of state—not federal—law, so this Court must determine whether there is 7 complete diversity between the parties to invoke jurisdiction to hear Plaintiffs’ claims. 8 Under 28 U.S.C. § 1332, federal district courts maintain original jurisdiction over all civil 9 actions where the matter in controversy is between “citizens of a State and citizens or subjects of a 10 foreign state” and exceeds $75,000. “Subject matter jurisdiction based upon diversity of citizenship 11 requires that no defendant have the same citizenship as any plaintiff.” Tosco Corp. v. Communities 12 for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by 13 Hertz Corp. v. Friend, 59 U.S. 77 (2010). Here, Plaintiffs allege that they are citizens of Los 14 Angeles, California, and that Defendant is an attorney with the Kern County Public Defender’s 15 Office, located in California. (See Doc. 1-1.) 16 Since Plaintiffs and Defendant are all citizens of California, complete diversity is lacking, 17 and Plaintiffs cannot proceed in federal court based on diversity jurisdiction. Garcia-Cardenas v. 18 Immigration Legal Servs., APC, No. 1:13-CV-01065-AWI, 2013 WL 4542223, at *2 (E.D. Cal. 19 Aug. 27, 2013) (citing Strawbridge v. Curtiss, 7 U.S. 267 (1806) (no plaintiff can be a citizen of the 20 same state as any of the defendants)). Because there is no subject matter jurisdiction over these this 21 claim, this Court must recommend dismissal. 22 C. Leave to Amend Would Be Futile 23 When dismissing a complaint, the Ninth Circuit has stated that “leave to amend should be 24 granted unless the district court determines that the pleading could not possibly be cured by the 25

26 2 Even if the Court were to construe Plaintiffs’ § 6128 claim as a violation of Mr. Jones’ Sixth Amendment right to effective assistance of counsel under 42 U.S.C. § 1983, Plaintiffs are not licensed attorneys, and therefore cannot bring 27 a lawsuit on behalf of another individual, including their son. See Palik v. Guam Behav. Health & Wellness Ctr., No. CV 21-00026, 2022 WL 1138190, at *3 (D. Guam Apr. 18, 2022); Fulkerson v. Thrive Mkt., Inc., No. 3:20-CV-00241- 28 MMD-CLB, 2020 WL 3717095, at *2 (D. Nev. June 16, 2020) (“As a general rule, pro se parties may not pursue claims 1 allegation of other facts.” Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal 2 quotation marks omitted); Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996). If, however, it is 3 clear after careful consideration that a complaint cannot be cured by amendment, the court may 4 dismiss without leave to amend. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); see 5 also Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez, 203 F.3d at 1129 6 (“Courts are not required to grant leave to amend if a complaint lacks merit entirely.”). 7 The complaint has not set forth any cognizable federal claim, and there is no diversity 8 jurisdiction over Plaintiffs’ state law claim due to a lack of complete diversity of citizenship. 9 Because Plaintiffs have failed to plead facts invoking the Court’s jurisdiction, the complaint should 10 be dismissed. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (“A party invoking the 11 federal court’s jurisdiction has the burden of proving the actual existence of subject matter 12 jurisdiction.”). Moreover, amendment would be futile because there is no set of facts Plaintiffs 13 could allege in an amended complaint to establish the Court’s jurisdiction over their claim. Thus, 14 the undersigned recommends denying leave to amend because amendment would be futile. 15 III. CONCLUSION AND RECOMMENDATION 16 Based on the foregoing, it is HEREBY RECOMMENDED that this action be dismissed 17 without prejudice and without leave to amend. The Clerk of Court is DIRECTED to assign a District 18 Judge to this action. 19 These Findings and Recommendation will be submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 21 one (21) days after being served with these Findings and Recommendations, Plaintiffs may file 22 written objections with the Court. The document should be captioned “Objections to Magistrate 23 Judge’s Findings and Recommendations.” Plaintiffs are advised that failure to file objections within 24 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 25 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 26 IT IS SO ORDERED. 27

28 Dated: October 24, 2022 /s/ Sheila K. Oberto . 1

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