2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Christy K. Sweet, Case No. 2:23-cv-00886-CDS-DJA 6 Plaintiff, 7 Report and Recommendation v. 8 Wesley F. Yamashita, 9 Defendant. 10 11 Before the Court is Plaintiff Christy K. Sweet’s amended complaint. (ECF No. 11). 12 Because Plaintiff is proceeding without paying the filing fee, the Court screens her complaint 13 under 28 U.S.C. § 1915. Because Plaintiff fails to state a claim upon which relief can be granted 14 for the third time, the Court recommends dismissing Plaintiff’s amended complaint without leave 15 to amend. 16 I. Legal standard for screening. 17 Upon granting an application to proceed in forma pauperis, courts additionally screen the 18 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 19 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 20 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 21 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 22 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 23 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 24 F.3d 1103, 1106 (9th Cir. 1995). 25 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 26 complaint for failure to state a claim upon which relief can be granted. Review under Rule 27 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 1 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 2 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 3 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 4 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 5 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 6 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 7 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 8 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 9 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 10 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 11 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 12 construction of pro se pleadings is required after Twombly and Iqbal). 13 Federal courts are courts of limited jurisdiction and possess only that power authorized by 14 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 15 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 16 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 17 federal law creates the cause of action or where the vindication of a right under state law 18 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 19 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 20 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 21 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 22 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under 28 U.S.C. § 1332(a), federal 23 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 24 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 25 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 26 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 27 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 1 II. Screening the complaint. 2 In her amended complaint, Plaintiff sues former Clark County Probate Commissioner 3 Wesley Yamashita. (ECF No. 11). This is Plaintiff’s third attempt to raise these claims. (ECF 4 No. 1) (Plaintiff’s complaint); (ECF No. 7) (Plaintiff’s motion to amend). However, her amended 5 complaint fails to state a claim for the same reason as her prior two attempts: Commissioner 6 Yamashita is immune from her claims against him. 7 Plaintiff’s allegations against Commissioner Yamashita concern his actions when 8 presiding over Plaintiff’s late mother’s probate action during a November 23, 2020 hearing. 9 (ECF No. 11 at 3-4). Plaintiff alleges that Commissioner Yamashita accepted a foreign will 10 without a trial, ruled on an issue not before him, and independently investigated an issue by 11 having his staff research the “universal heir” topic in European law. (Id. at 3, 5, 8).1 Plaintiff 12 also alleges that Commissioner Yamashita failed to certify a correct English translation of the 13 will. (Id. at 9). But, as the Court previously noted, “[c]ommissioners appointed to adjudicate a 14 probate action are entitled to th[e] same judicial immunity,” as judges and courts. Gomez-Shaw v. 15 White, No. 23-cv-00575-PHX-JJT, 2023 WL 4899914, at *4 (D. Ariz. Aug. 1, 2023). Plaintiff’s 16 allegations against Commissioner Yamashita involve judicial actions for which the Commissioner 17 is immune. Because Plaintiff has attempted to amend her claims twice before and has been 18 unable to successfully amend her complaint, and because her proposed amended claims are futile, 19 the Court will recommend dismissal of her complaint without leave to amend. See U.S. ex rel. 20 Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (stating that, in assessing 21 whether leave to amend is proper, courts consider “the presence or absence of undue delay, bad 22 faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue 23 prejudice to the opposing party[,] and futility of the proposed amendment.”) (emphasis added). 24 25 26 27 1 Plaintiff alleges other facts related to her former attorneys and the Nevada Commission on Judicial Discipline. But Plaintiff does not list these parties as defendants, so the Court does not 1 RECOMMENDATION 2 IT IS THEREFORE RECOMMENDED that Plaintiff’s amended complaint (ECF No.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Christy K. Sweet, Case No. 2:23-cv-00886-CDS-DJA 6 Plaintiff, 7 Report and Recommendation v. 8 Wesley F. Yamashita, 9 Defendant. 10 11 Before the Court is Plaintiff Christy K. Sweet’s amended complaint. (ECF No. 11). 12 Because Plaintiff is proceeding without paying the filing fee, the Court screens her complaint 13 under 28 U.S.C. § 1915. Because Plaintiff fails to state a claim upon which relief can be granted 14 for the third time, the Court recommends dismissing Plaintiff’s amended complaint without leave 15 to amend. 16 I. Legal standard for screening. 17 Upon granting an application to proceed in forma pauperis, courts additionally screen the 18 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 19 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 20 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 21 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 22 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 23 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 24 F.3d 1103, 1106 (9th Cir. 1995). 25 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 26 complaint for failure to state a claim upon which relief can be granted. Review under Rule 27 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 1 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 2 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 3 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 4 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 5 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 6 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 7 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 8 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 9 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 10 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 11 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 12 construction of pro se pleadings is required after Twombly and Iqbal). 13 Federal courts are courts of limited jurisdiction and possess only that power authorized by 14 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 15 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 16 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 17 federal law creates the cause of action or where the vindication of a right under state law 18 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 19 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 20 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 21 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 22 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under 28 U.S.C. § 1332(a), federal 23 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 24 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 25 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 26 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 27 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 1 II. Screening the complaint. 2 In her amended complaint, Plaintiff sues former Clark County Probate Commissioner 3 Wesley Yamashita. (ECF No. 11). This is Plaintiff’s third attempt to raise these claims. (ECF 4 No. 1) (Plaintiff’s complaint); (ECF No. 7) (Plaintiff’s motion to amend). However, her amended 5 complaint fails to state a claim for the same reason as her prior two attempts: Commissioner 6 Yamashita is immune from her claims against him. 7 Plaintiff’s allegations against Commissioner Yamashita concern his actions when 8 presiding over Plaintiff’s late mother’s probate action during a November 23, 2020 hearing. 9 (ECF No. 11 at 3-4). Plaintiff alleges that Commissioner Yamashita accepted a foreign will 10 without a trial, ruled on an issue not before him, and independently investigated an issue by 11 having his staff research the “universal heir” topic in European law. (Id. at 3, 5, 8).1 Plaintiff 12 also alleges that Commissioner Yamashita failed to certify a correct English translation of the 13 will. (Id. at 9). But, as the Court previously noted, “[c]ommissioners appointed to adjudicate a 14 probate action are entitled to th[e] same judicial immunity,” as judges and courts. Gomez-Shaw v. 15 White, No. 23-cv-00575-PHX-JJT, 2023 WL 4899914, at *4 (D. Ariz. Aug. 1, 2023). Plaintiff’s 16 allegations against Commissioner Yamashita involve judicial actions for which the Commissioner 17 is immune. Because Plaintiff has attempted to amend her claims twice before and has been 18 unable to successfully amend her complaint, and because her proposed amended claims are futile, 19 the Court will recommend dismissal of her complaint without leave to amend. See U.S. ex rel. 20 Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (stating that, in assessing 21 whether leave to amend is proper, courts consider “the presence or absence of undue delay, bad 22 faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue 23 prejudice to the opposing party[,] and futility of the proposed amendment.”) (emphasis added). 24 25 26 27 1 Plaintiff alleges other facts related to her former attorneys and the Nevada Commission on Judicial Discipline. But Plaintiff does not list these parties as defendants, so the Court does not 1 RECOMMENDATION 2 IT IS THEREFORE RECOMMENDED that Plaintiff’s amended complaint (ECF No. 3 11) be DISMISSED without prejudice and without leave to amend. 4 5 NOTICE 6 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 7 in writing and filed with the Clerk of the Court within (14) days after service of this Notice. The 8 Supreme Court has held that the courts of appeal may determine that an appeal has been waived 9 due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 10 (1985), reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that (1) failure to 11 file objections within the specified time and (2) failure to properly address and brief the 12 objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 13 issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); 14 Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 15 16 DATED: August 26, 2024 17 18 DANIEL J. ALBREGTS 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27