1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP SANDERS, Case No. 1:22-cv-00577-JLT-HBK 12 Plaintiff, ORDER TO SHOW CAUSE WHY THE COMPLAINT SHOULD NOT BE 13 v. DISMISSED AS TIME BARRED AND FOR LACK OF JURISDICTION 14 SHERIFF ROBERT HICKS, ET AL, May 26, 2023, DEADLINE 15 Defendants.
16 17 18 19 Plaintiff, Philip Sanders, who is proceeding pro se and in forma pauperis initiated this 20 action on May 13, 2022, by filing a civil complaint. (Doc. No. 1, “Complaint”). Plaintiff’s 21 Complaint is before the Court for screening pursuant to 28 U.S.C. § 1915(e)(2)(B). 22 I. Screening Requirement 23 Because Plaintiff is proceeding in form pauperis, the Court may dismiss a case “at any 24 time” if the Court determines, inter alia, the action is frivolous or malicious, fails to state claim 25 on which relief can be granted, or seeks monetary relief against a defendant who is immune from 26 such relief. 28 U.S.C § 1915(e)(2)(B)(ii) -(iii); see also Lopez v. Smith, 203 F. 3d 1122, 1129 27 (9th Cir. 2000) (section 1915(e) applies to all litigants proceeding in form pauperis). A 28 complaint, however, should not be dismissed unless it appears beyond doubt that the plaintiff can 1 prove no set of facts in support of his or her claim that would entitle him to relief. Johnson v. 2 Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied, 552 U.S. 996 (1997). A complaint must 3 include a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. 4 R. Civ. P. 8(a). Dismissal for failure to state a claim in this context is governed by the same 5 standard as dismissal under Federal Rule of Civil Procedure 12(b)(6). Barren v. Harrington, 152 6 F. 3d 1193, 1194 (9th Cir. 1998). As such, a complaint must contain sufficient factual matter to 7 state a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 8 “A complaint is plausible on its face when it contains sufficient facts to support a reasonable 9 inference that the defendant is liable for the misconduct alleged.” Id. At this stage, the court 10 accepts the facts stated in the complaint as true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 11 740 (1976). The Court does not accept as true allegations that are merely conclusory, 12 unreasonable inferences, or unwarranted deductions. Western Mining Council v. Watt, 643 F.2d 13 618, 624 (9th Cir. 1981). Nor are legal conclusions considered facts. Iqbal, 556 U.S. at 678. 14 Due to Plaintiff’s pro se status, the Court must liberally construe the Complaint in the 15 light most favorable to the Plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Bernhardt 16 v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003). If a pleading could be cured by the allegation 17 of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 18 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. 19 Department of Corr., 66 F.3d 245, 248 (9th Cir. 1995). However, it is not the role of the Court to 20 advise a litigant on how to cure the defects. Such advice “would undermine district judges’ role 21 as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d 22 at 1131 n.13. 23 II. Summary of Complaint 24 The Complaint names the following Defendants on the caption: (1) Sheriff Robert Hicks, 25 (2) Sheriff J Lara, (3) Unknown File Clerk, Fresno Superior Court, Family law Division, and (4) 26 Leonard Sanders. (Id. at 2-3). 1 The Complaint is disjointed and disorganized but generally 27 1 The Court refers to the CMECF page numbers of the Complaint. In this case, the CMECF page numbers 28 correspond to the same page numbers on the Complaint. 1 alleges claims under 42 U.S.C. § 1983 under the Fourteenth Amendment, as well as several state 2 law claims. (See generally Doc. No. 1). According to the Complaint, Plaintiff moved back into 3 his elderly mother’s home on May 16, 2019. (Id. at 4). In December 2019, his mother suffered a 4 stroke. (Id.). When Plaintiff returned to his mother’s home from Fresno State on January 18, 5 2020, he found his brother Leonard and a notary in his mother’s bedroom. (Id.). He and Leonard 6 had an altercation, which resulted in the police being called. (Id.). Sometime shortly thereafter 7 (between January 22-28, 2022) Plaintiff was served with an application for a domestic restraining 8 order. (Id. at 6). On February 13, 2020, the state court judge “found Leonard’s testimony to be 9 more credible” and imposed a 3-year restraining order. (Id. at 10). Essentially, Plaintiff 10 challenges the state issued restraining order as procedurally deficient and factually incorrect. (Id. 11 at 6-10). More specifically, Plaintiff claims his brother committed forgery and fraud in his 12 application to obtain the domestic restraining order and perjured himself before the state court to 13 obtain the order. (Id). The Court cannot glean from the Complaint what type of relief Plaintiff 14 seeks. 15 III. Analysis 16 Liberally construed, Plaintiff’s Complaint alleges a Fourteenth Amendment due process 17 violation stemming from the purported defective and granted state domestic restraining order. 18 The Court finds the Complaint fails to state a viable federal claim. “A claim can be dismissed for 19 failure to state a valid claim when a violation of the limitations period is evident from the face of 20 the complaint.” E.E.O.C. v. ABM Indus. Inc., 249 F.R.D. 588, 591 (E.D. Cal. 2008) (citing 21 Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980)); see also Cervantes v. City of 22 San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). Because §1983 does not contain a specific statute 23 of limitations, “federal courts ‘apply the forum state's statute of limitations for personal injury 24 actions, along with the forum state's law regarding tolling, including equitable tolling, except to 25 the extent any of these laws is inconsistent with federal law.’ ” Butler v. Nat'l Cmty. Renaissance 26 of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v. Van De Kamp, 486 F.3d 1128, 27 1132 (9th Cir. 2007)). Thus, this claim is governed by California's two-year statute of limitations 28 along with any applicable tolling. Thompson v. City of Shasta Lake, 314 F. Supp. 2d 1017, 1023 1 (E.D. Cal. 2004).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP SANDERS, Case No. 1:22-cv-00577-JLT-HBK 12 Plaintiff, ORDER TO SHOW CAUSE WHY THE COMPLAINT SHOULD NOT BE 13 v. DISMISSED AS TIME BARRED AND FOR LACK OF JURISDICTION 14 SHERIFF ROBERT HICKS, ET AL, May 26, 2023, DEADLINE 15 Defendants.
16 17 18 19 Plaintiff, Philip Sanders, who is proceeding pro se and in forma pauperis initiated this 20 action on May 13, 2022, by filing a civil complaint. (Doc. No. 1, “Complaint”). Plaintiff’s 21 Complaint is before the Court for screening pursuant to 28 U.S.C. § 1915(e)(2)(B). 22 I. Screening Requirement 23 Because Plaintiff is proceeding in form pauperis, the Court may dismiss a case “at any 24 time” if the Court determines, inter alia, the action is frivolous or malicious, fails to state claim 25 on which relief can be granted, or seeks monetary relief against a defendant who is immune from 26 such relief. 28 U.S.C § 1915(e)(2)(B)(ii) -(iii); see also Lopez v. Smith, 203 F. 3d 1122, 1129 27 (9th Cir. 2000) (section 1915(e) applies to all litigants proceeding in form pauperis). A 28 complaint, however, should not be dismissed unless it appears beyond doubt that the plaintiff can 1 prove no set of facts in support of his or her claim that would entitle him to relief. Johnson v. 2 Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied, 552 U.S. 996 (1997). A complaint must 3 include a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. 4 R. Civ. P. 8(a). Dismissal for failure to state a claim in this context is governed by the same 5 standard as dismissal under Federal Rule of Civil Procedure 12(b)(6). Barren v. Harrington, 152 6 F. 3d 1193, 1194 (9th Cir. 1998). As such, a complaint must contain sufficient factual matter to 7 state a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 8 “A complaint is plausible on its face when it contains sufficient facts to support a reasonable 9 inference that the defendant is liable for the misconduct alleged.” Id. At this stage, the court 10 accepts the facts stated in the complaint as true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 11 740 (1976). The Court does not accept as true allegations that are merely conclusory, 12 unreasonable inferences, or unwarranted deductions. Western Mining Council v. Watt, 643 F.2d 13 618, 624 (9th Cir. 1981). Nor are legal conclusions considered facts. Iqbal, 556 U.S. at 678. 14 Due to Plaintiff’s pro se status, the Court must liberally construe the Complaint in the 15 light most favorable to the Plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Bernhardt 16 v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003). If a pleading could be cured by the allegation 17 of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 18 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. 19 Department of Corr., 66 F.3d 245, 248 (9th Cir. 1995). However, it is not the role of the Court to 20 advise a litigant on how to cure the defects. Such advice “would undermine district judges’ role 21 as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d 22 at 1131 n.13. 23 II. Summary of Complaint 24 The Complaint names the following Defendants on the caption: (1) Sheriff Robert Hicks, 25 (2) Sheriff J Lara, (3) Unknown File Clerk, Fresno Superior Court, Family law Division, and (4) 26 Leonard Sanders. (Id. at 2-3). 1 The Complaint is disjointed and disorganized but generally 27 1 The Court refers to the CMECF page numbers of the Complaint. In this case, the CMECF page numbers 28 correspond to the same page numbers on the Complaint. 1 alleges claims under 42 U.S.C. § 1983 under the Fourteenth Amendment, as well as several state 2 law claims. (See generally Doc. No. 1). According to the Complaint, Plaintiff moved back into 3 his elderly mother’s home on May 16, 2019. (Id. at 4). In December 2019, his mother suffered a 4 stroke. (Id.). When Plaintiff returned to his mother’s home from Fresno State on January 18, 5 2020, he found his brother Leonard and a notary in his mother’s bedroom. (Id.). He and Leonard 6 had an altercation, which resulted in the police being called. (Id.). Sometime shortly thereafter 7 (between January 22-28, 2022) Plaintiff was served with an application for a domestic restraining 8 order. (Id. at 6). On February 13, 2020, the state court judge “found Leonard’s testimony to be 9 more credible” and imposed a 3-year restraining order. (Id. at 10). Essentially, Plaintiff 10 challenges the state issued restraining order as procedurally deficient and factually incorrect. (Id. 11 at 6-10). More specifically, Plaintiff claims his brother committed forgery and fraud in his 12 application to obtain the domestic restraining order and perjured himself before the state court to 13 obtain the order. (Id). The Court cannot glean from the Complaint what type of relief Plaintiff 14 seeks. 15 III. Analysis 16 Liberally construed, Plaintiff’s Complaint alleges a Fourteenth Amendment due process 17 violation stemming from the purported defective and granted state domestic restraining order. 18 The Court finds the Complaint fails to state a viable federal claim. “A claim can be dismissed for 19 failure to state a valid claim when a violation of the limitations period is evident from the face of 20 the complaint.” E.E.O.C. v. ABM Indus. Inc., 249 F.R.D. 588, 591 (E.D. Cal. 2008) (citing 21 Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980)); see also Cervantes v. City of 22 San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). Because §1983 does not contain a specific statute 23 of limitations, “federal courts ‘apply the forum state's statute of limitations for personal injury 24 actions, along with the forum state's law regarding tolling, including equitable tolling, except to 25 the extent any of these laws is inconsistent with federal law.’ ” Butler v. Nat'l Cmty. Renaissance 26 of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v. Van De Kamp, 486 F.3d 1128, 27 1132 (9th Cir. 2007)). Thus, this claim is governed by California's two-year statute of limitations 28 along with any applicable tolling. Thompson v. City of Shasta Lake, 314 F. Supp. 2d 1017, 1023 1 (E.D. Cal. 2004). Under federal law, “a claim accrues when the plaintiff knows or has reason to 2 know of the injury which is the basis of the action.” Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 3 2001). 4 Here, the events that form the basis of Plaintiff's Complaint occurred at the latest on 5 February 13, 2020, when the state superior court granted the domestic restraining order. (Doc. 6 No. 1 at 10). Plaintiff’s deadline to file his § 1983 claim expired on Monday, February 14, 2022. 7 Plaintiff did not file the instant Complaint until May 13, 2022—some three months past the 8 expiration of the statute of limitations. Therefore, even assuming Plaintiff can state a viable § 9 1983 claim, the claim is time-barred. 10 Plaintiff suggests that due to the state court’s closure due to Covid-19 he should be 11 entitled to equitable tolling. (Doc. No. 1 at 2). As plead, the Complaint, does not support 12 equitably tolling the statute of limitations. “Equitable tolling under California law ‘operates 13 independently of the literal working of the Code of Civil Procedure to suspend or extend a statute 14 of limitations as necessary to ensure fundamental practicality and fairness.” Jones v. Blanas, 393 15 F.3d 918, 928 (9th Cir. 2004) (quoting Lantzy v. Centex Homes, 73 P.3d 517, 523 (Cal. 2003)). 16 To be entitled to equitable tolling, a plaintiff must meet three conditions: (1) the defendants must 17 have had timely notice of the claim; (2) the defendants must not be prejudiced by being required 18 to defend the otherwise barred claim; and (3) the plaintiff's conduct must have been reasonable 19 and in good faith. Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (internal quotation marks 20 and citation omitted). Plaintiff acknowledges he had a hearing on February 13, 2020, when the 21 state courts were open. 22 Even assuming the Complaint is not time barred, the Court does not have jurisdiction to 23 consider the propriety of the domestic restraining order application of its issuance. “Courts have 24 an independent obligation to determine whether subject-matter jurisdiction exists, even when no 25 party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). A federal court is presumed 26 to lack subject matter jurisdiction, and a plaintiff bears the burden of establishing that subject 27 matter jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 28 The “presence or absence of federal question jurisdiction is governed by the ‘well-pleaded 1 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 2 presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar, Inc. v. Williams, 3 482 U.S. 386 (1987). If a federal court lacks subject matter jurisdiction, the action must be 4 dismissed. Fed. R. Civ. P. 12(h)(3). Applications for domestic-violence restraining orders do not 5 arise under federal law and, without more, the court lacks federal-question jurisdiction. See, e.g., 6 Venoya v. Remmert, No. CV-07-80117M CW, 2007 WL 1655628, *1–*2 (N.D. Cal. June 7, 7 2007) (remanding for lack of federal jurisdiction because the state court's order regarding 8 defendant's motion for a restraining order did not constitute a “denial of her constitutional rights” 9 and was “insufficient” to establish federal jurisdiction); cf. Muhammad v. Jackson, No. CV-08- 10 369-PHX-DGC, 2008 WL 820565, at *1–*2 (D. Ariz. Mar. 25, 2008) (dismissing complaint for 11 lack of federal jurisdiction and finding motion for injunctive relief was insufficient to invoke 12 federal jurisdiction where the motion consisted of a California state-court form used to obtain 13 restraining orders against domestic violence and did not cite a federal law or claim). 14 Moreover, the Complaint does not adequately state a viable § 1983 claim against any 15 named Defendant. Plaintiff names his brother Leonard as a Defendant, but he is private citizen 16 and not a state actor. See Marsh v. Cnty. Of San Diego, 680 F. 3d 1148, 1158 (9th Cir. 2012) 17 (discussing “under color of state law”). Further, Plaintiff fails to state any claim against the 18 Unknown Clerk at the Fresno Superior Court, “[c]ourt clerks have absolute quasi-judicial 19 immunity . . . for civil rights violations when they perform tasks that are an integral part of the 20 judicial process.” Mullis v. U.S. Bankr. Court, 828 F. 2d 1385, 1390 (9th Cir. 1987) (citations 21 omitted). Finally, the Complaint fails to state any claim of wrongdoing by either Deputy Sheriffs 22 Hicks or Lara. The Complaint appears to predicate liability upon these two Defendants based on 23 Hick’s failed attempt to effectuate service of process on Plaintiff on January 28, 2020 (Doc. No. 24 8) and Lara effecting service of process on Plaintiff on January 25, 2020 (Doc. No. 7). The 25 guarantee of constitutional due process applies only to “deliberate decisions of government 26 officials to deprive a person of life, liberty, or property.” Kingsley v. Hendrickson, 576 U.S. 389, 27 396 (2015). Here, other than attempting and effectuating service of process, Plaintiff fails to 28 allege any act of wrongdoing on behalf of either Defendant. Further, Plaintiff acknowledges he 1 | was afforded due process as he acknowledges he had a hearing before a state court judge before 2 | the domestic restraining order was granted. (Doc. No. | at 10). 3 The Complaint also appears to assert state law claims for fraud and forgery. (Doc. 1 at 1, 4 | 3,13). Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff 5 | must first have a cognizable claim for relief under federal law, which, for the reasons explained 6 | above, he does not. See 28 U.S.C. § 1367. Accordingly, the Court does not address the viability 7 | of any of Plaintiff's state law claims. 8 Accordingly, it is ORDERED: 9 1. On or before May 26, 2023, Plaintiff shall show cause why the Court should not 10 | dismiss this action as barred by the two-year statute of limitations and for lack of jurisdiction. 11 2. If Plaintiff fails to timely respond to this Show Cause Order or seek an extension 12 | of time to respond, the Court will recommend the district court dismiss this action for □□□□□□□□□□□ 13 | failure to comply with this Court Order and prosecute this action. 14 ' | Dated: _ April 24, 2023 Mile. Wh fareh Zaskth 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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