Keahey v. CPS

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 SHIRL KEAHEY, Case No. 3:21-CV-00391-RCJ-CLB

5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v. [ECF No. 1] 7 CPS, et. al.,

8 Defendants.

9 Before the Court is Plaintiff Shirl Keahey’s (“Keahey”), application to proceed in 10 forma pauperis (ECF No. 1), and her pro se civil rights complaint (ECF No. 1-1). For the 11 reasons stated below, the Court recommends that Keahey’s in forma pauperis 12 application, (ECF No. 1), be granted, and her complaint, (ECF No. 1-1), be dismissed, 13 with prejudice. 14 I. IN FORMA PAUPERIS APPLICATION 15 A person may be granted permission to proceed in forma pauperis (“IFP”) if the 16 person “submits an affidavit that includes a statement of all assets such [person] 17 possesses [and] that the person is unable to pay such fees or give security therefore. 18 Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief 19 that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 20 1122, 1129 (9th Cir. 2000) (en banc) (stating 28 U.S.C. § 1915 applies to all actions filed 21 IFP, not just prisoner actions). 22 The Local Rules of Practice for the District of Nevada provide: “Any person who is 23 unable to prepay the fees in a civil case may apply to the court for authority to proceed 24 [IFP]. The application must be made on the form provided by the court and must include 25 a financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” 26

27 1 This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate 1 LSR 1-1. 2 “[T]he supporting affidavit [must] state the facts as to [the] affiant’s poverty with 3 some particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th 4 Cir. 1981) (quotation marks and citation omitted). A litigant need not “be absolutely 5 destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 6 335 U.S. 331, 339 (1948). 7 A review of the application to proceed IFP reveals Keahey cannot pay the filing 8 fee; therefore, the Court recommends that the application, (ECF No. 1), be granted. 9 II. SCREENING STANDARD 10 Prior to ordering service on any defendant, the court is required to screen an in 11 forma pauperis complaint to determine whether dismissal is appropriate under certain 12 circumstances. See Lopez, 203 F.3d at 1126 (noting the in forma pauperis statute at 28 13 U.S.C. § 1915(e)(2) requires a district court to dismiss an in forma pauperis complaint for 14 the enumerated reasons). Such screening is required before a litigation proceeding in 15 forma pauperis may proceed to serve a pleading. Glick v. Edwards, 803 F.3d 505, 507 16 (9th Cir. 2015). 17 “[T]he court shall dismiss the case at any time if the court determines that – (A) the 18 allegations of poverty is untrue; or (B) the action or appeal – (i) is frivolous or malicious; 19 (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief 20 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)- 21 (iii). 22 Dismissal of a complaint for failure to state a claim upon which relief may be 23 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 24 1915(e)(2)(B)(ii) tracks that language. When reviewing the adequacy of a complaint under 25 this statute, the court applies the same standard as is applied under Rule 12(b)(6). See, 26 e.g., Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for 27 determining whether a plaintiff has failed to state a claim upon which relief can be granted 1 standard for failure to state a claim.”). Review under Rule 12(b)(6) is essentially a ruling 2 on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 3 2000) (citation omitted). 4 The court must accept as true the allegations, construe the pleadings in the light 5 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. 6 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints 7 are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes 8 v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations marks and citation omitted). 9 A complaint must contain more than a “formulaic recitation of the elements of a 10 cause of actions,” it must contain factual allegations sufficient to “raise a right to relief 11 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 12 “The pleading must contain something more. . . than. . . a statement of facts that merely 13 creates a suspicion [of] a legally cognizable right of action.” Id. (citation and quotation 14 marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to 15 relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009). 17 A dismissal should not be without leave to amend unless it is clear from the face 18 of the complaint the action is frivolous and could not be amended to state a federal claim, 19 or the district court lacks subject matter jurisdiction over the action. See Cato v. United 20 States, 70 F.3d 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th 21 Cir. 1990). 22 III. SCREENING OF COMPLAINT 23 In her complaint, Keahey sues Defendants CPS, and multiple CPS employees for 24 what appears to relate to a visitation dispute with Keahey and her grandchildren. (See 25 ECF No. 1-1 at 2, 4, 6-7.) Keahey alleges “alienation of effection (sic)” and states “they 26 won’t let me see or be around my grandsons.” (Id. at 4.) Keahey does not specify the 27 basis for this Court’s jurisdiction or the relief she seeks. 1 Dismissal on those grounds alone is appropriate. Federal Rule of Civil Procedure 8(a)(2) 2 requires that a complaint contain “a short and plain statement of the claim showing that 3 the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . 4 claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quotation and 5 alteration omitted). It must also include “a demand for the relief sought. . . .” Fed. R. Civ. 6 P. 8(a)(3). Here, Keahey’s narrative is largely incomprehensible narrative, which makes 7 it nearly impossible for the Court to identify the factual or legal basis for her claims or the 8 nature of her requested relief. To the extent Keahey is attempting to plead a claim for 9 “alienation of affection,” Nevada long ago abolished claims for alienation of affection by 10 statute, so that theory cannot be a foundation for relief. Nev. Rev. Stat. § 41.380. Keahey 11 states no claim upon which relief may be granted, and given the vague nature of the 12 allegations, amendment would be futile. See Cato, 70 F.3d at 1106. 13 Notwithstanding the above, this Court also lacks subject matter jurisdiction in this 14 case—it is well recognized that federal courts do not have jurisdiction to resolve domestic 15 relations disputes involving child custody. See Ankenbrant v. Richards, 504 U.S. 689, 703 16 (1992) (domestic relations exception to federal jurisdiction divests federal courts of the 17 power to issue child custody decrees); see also Peterson v. Babbitt, 708 F.2d 465, 466 18 (9th Cir. 1983) (per curiam) (“[F]ederal courts have uniformly held that they should not 19 adjudicate cases involving domestic relations, including the ‘custody of minors and a 20 fortiori, rights of visitation.’”). The subject matter of domestic relations and particularly 21 child custody problems is generally considered a state law matter. Buechold v. Ortiz, 401 22 F.2d 371, 372 (9th Cir. 1968). “The strong state interest in domestic relations matters, the 23 superior competence of state courts in settling family disputes because regulation and 24 supervision of domestic relations within their borders is entrusted to the states, and the 25 possibility of incompatible federal and state court decrees in cases of continuing judicial 26 supervision by the state makes federal abstention in these cases appropriate.” Peterson, 27 708 F.2d at 466 (citing Moore v. Sims, 442 U.S. 415 (1979)). prejudice, as amendment would be futile. 2) IV. CONCLUSION 3 For good cause appearing and for the reasons stated above, the Court 4| recommends that Keahey’s application to proceed in forma pauperis, (ECF No. 1), be granted, and her complaint, (ECF No. 1-1), be dismissed, with prejudice, as amendment 6 | would be futile. 7 The parties are advised: 8 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 9| Practice, the parties may file specific written objections to this Report and 10 | Recommendation within fourteen days of receipt. These objections should be entitled 11| “Objections to Magistrate Judge’s Report and Recommendation” and should be accompanied by points and authorities for consideration by the District Court. 13 2. This Report and Recommendation is not an appealable order and any 14 notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s judgment. 16| V. RECOMMENDATION 17 IT IS THEREFORE RECOMMENDED that Keahey’s application to proceed in forma pauperis, (ECF No. 1), be GRANTED; 19 IT IS FURTHER RECOMMENDED that the Clerk FILE the complaint, (ECF No. 1- 1); 21 IT IS FURTHER RECOMMENDED that Keahey’s complaint, (ECF No. 1-1), be 22| DISMISSED, WITH PREJUDICE; and, 23 IT IS FURTHER RECOMMENDED that this action be CLOSED, and that judgment be entered accordingly. 5 DATED: October 20,2021 . * 26 Ga A. 57 UNITED STATES MAGISTRATE JUDGE