Smith v. Ayodele

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 CANDACE SMITH, ) Case No.: 1:24-cv-1100 JLT SKO ) 12 Plaintiff, ) ORDER ADOPTING IN FULL THE FINDINGS ) AND RECOMMENDATIONS THAT THIS CASE 13 v. ) BE DISMISSED WITHOUT PREJUDICE, ) DENYING PLAINTIFF’S REQUEST TO CHANGE 14 SEYI AYODALE, ) MAGISTRATE JUDGE, AND DIRECTING THE ) CLERK OF COURT TO CLOSE THE CASE 15 Defendant. ) ) (Docs. 9 & 11) 16 )

17 Candace Smith seeks to hold Seyi Ayodale liable for “personal injury attempted murder” under 18 federal law. (See Doc. 6 at 3–6; Doc. 1-1.) Because Plaintiff is proceeding in forma pauperis, the 19 magistrate judge screened Plaintiff’s complaints pursuant to 28 U.S.C. § 1915(e)(2). (Docs. 5, 9.) 20 Upon screening the initial complaint (Doc. 1), the magistrate found Plaintiff failed to state any 21 cognizable claims and granted leave to file an amended complaint curing the pleading deficiencies 22 identified in the order. (Doc. 5.) Plaintiff timely filed an amended complaint (Doc. 6), which the 23 magistrate judge screened. (Doc. 9.) 24 The magistrate judge noted that despite the explicit recitation of the deficiencies of the initial 25 complaint, Plaintiff failed to plead any cognizable claims sufficient to state a basis for federal 26 jurisdiction. Specifically, the magistrate judge found that Plaintiff failed to state a cognizable claim 27 under 42 U.S.C. § 1983 claim against a private party and, to the extent Plaintiff attempted to bring a 28 claim for “attempted murder” or “robbery,” “such criminal claims may not be pursued in a civil 1 lawsuit.” (Doc. 9 at 5–6.) In addition, although not alleged as a basis for jurisdiction in the amended 2 complaint, the magistrate judge found there is not complete diversity between the parties, because “[i]n 3 the Civil Cover Sheet, Plaintiff indicates she and Defendant are both citizens of Fresno, which is in the 4 State of California.” (Id. at 6, citing Doc. 1-1.) Thus, the magistrate judge concluded the Court lacks 5 subject matter jurisdiction and diversity jurisdiction over the action. (Id.) The magistrate judge 6 determined that amendment would be futile because “Plaintiff has repeatedly demonstrated that she is 7 unable to plead facts invoking the Court’s jurisdiction.” (Id.) Consequently, the magistrate judge 8 recommended the action be dismissed without prejudice and without leave to amend. (Id.) 9 On December 3, 2024, Plaintiff timely filed objections to the Findings and Recommendations. 10 (Doc. 10.) Plaintiff asserts that Defendant has “poisoned” the community because she herself as the 11 plaintiff, stole Plaintiff’s child from a hospital in 2005, committed murder, and pretended to be “a 12 mistress to a married cop.” (Id. at 1.) Plaintiff contends Defendant also engaged in harassment by 13 “sending pornographic materials to [Plaintiff] & married men.” (Id. at 2.) Plaintiff requests the Court 14 consider this behavior in the matter. (Id.) In addition, Plaintiff filed a “Request to Change Magistrate” 15 asserting that both the assigned district judge and magistrate judge are being biased. (Doc. 11 at 1.) 16 Plaintiff does not address the specific findings of the magistrate judge related to her failure to 17 allege cognizable a cause of action under federal law. Although Plaintiff alleges several violations of 18 criminal law, she does not identify any provision that would invoke this Court’s subject matter 19 jurisdiction. Criminal statutes do not provide basis for a civil lawsuit such as Plaintiff attempts to bring 20 in the matter pending before the Court. See, e.g., Allen v. Gold Country Casino, 464 F.3d 1044, 1048 21 (9th Cir. 2006) (affirming dismissal of a plaintiff’s claims because “criminal statutes that do not give 22 rise to civil liability”); Pawelek v. Paramount Studios Corp., 571 F.Supp. 1082, 1083 (N.D. Ill. 1983) 23 (no private cause of action inherent in federal criminal statutes defining civil rights violations). Rather 24 when a criminal statute is violated, the question of whether to prosecute is a matter of a prosecutor’s 25 discretion and is not a matter for the Court. See United States v. Batchelder, 442 U.S. 114, 124 (1979) 26 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of the case. Having 27 carefully reviewed the matter, including Plaintiff’s objections, the Court concludes the Findings and 28 Recommendation are supported by the record and proper analysis. Furthermore, the Court denies 1 || Plaintiffs “Request to Change Magistrate” because Plaintiff fails to allege facts that would support tl 2 || contention that either the magistrate judge or district judge exhibited bias and prejudice towards 3 || Plaintiff. See Liteky v. United States, 510 U.S. 540, 555 (1994); Jensen v. Santa Clara County, 32 Fe 4 || App’x 203, 206 (9th Cir. 2002) (mere allegations of a plaintiff that trial judge had a bias was not 5 || enough to support judge’s recusal where plaintiffs complaint had no support in the record); Saddoza 6 || Carwithen, 2022 WL 6584457, at *1 (N.D. Cal. Sept. 21, 2022) (“Plaintiff's assertions regarding 7 || personal bias and prejudice are simply conclusory. The Court does not have nor has ever expressed a 8 || ‘discriminatory animus’ against Plaintiff based on his poverty, imprisonment, or race, and no improp: 9 || remarks have ever been made showing lack of impartiality”). Indeed, the district judge has not taken 10 || any action in this matter until performing this de novo review of the Findings and Recommendations. 11 || To the extent Plaintiff's assertion of bias is based upon rulings of the Court—such as the magistrate 12 ||judge’s recommendation of dismissal—such “is not an adequate basis for recusal.” Leslie v. Grupo 13 ||ICA, 198 F.3d 1152, 1160 (9th Cir. 1999); see also United States v. Johnson, 610 F.3d 1138, 1148 14 || Cir. 2010) (‘Adverse findings do not equate to bias.”) Thus, the Court ORDERS: 15 1. The Findings and Recommendations dated November 8, 2024 (Doc. 9) are □□□□□□□ 16 in full. 17 2. Plaintiff's complaint is DISMISSED without prejudice for lack of jurisdiction. 18 3. Leave to amend is DENIED as futile. 19 4. Plaintiffs “Request to Change Magistrate” (Doc. 11) is DENIED. 20 5. The Clerk of Court is directed to close this case. 21 22 IT IS SO ORDERED. 23 | Dated: _December 22, 2024 Cerin | Tower 24 TED STATES DISTRICT JUDGE 25 26 27 28