Youssef v. Youssef

• Court: District Court, S.D. California
• Decided: October 6, 2022
• Docket: 3:22-cv-01260
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARY YOUSSEF, JR., Case No.: 3:22-cv-01260-RBM-AGS

12 Plaintiff, ORDER: (1) DENYING MOTION TO 13 v. SEAL (Doc. 6); (2) GRANTING PLAINTIFF’S MOTION TO 14 GARY YOUSSEF, SR., PROCEED IN FORMA PAUPERIS 15 Defendant. (Doc. 2); (3) DENYING AS MOOT PLAINTIFF’S MOTION TO 16 APPOINT COUNSEL (Doc. 3); (4) 17 DENYING AS MOOT PLAINTIFF’S MOTION FOR FEDERAL 18 RESTRAINING ORDER (Doc. 5); (5) 19 DENYING AS MOOT PLAINTIFF’S EX PARTE APPLICATION FOR 20 TEMPORARY RESTRAINING 21 ORDER (Doc. 9); (6) DISMISSING ACTION WITHOUT PREJUDICE 22

23 On August 25, 2022, Plaintiff Gary Youssef, Jr. (“Plaintiff”) filed a complaint 24 against his father, Defendant Gary Youssef, Sr. (“Defendant”), which appears to seek an 25 order from this Court granting a permanent restraining order against Defendant. (Doc. 1 26 at 3.) At the same time, Plaintiff filed motions for leave to proceed in forma pauperis and 27 to appoint counsel. (Docs. 2, 3.) On August 26, 2022, Plaintiff filed a “motion for federal 28 1 restraining order” which alleges Defendant was stalking Plaintiff. (Doc. 5.) On August 2 30, 2022, in response to an order to show cause why the action should not be dismissed for 3 lack of subject matter jurisdiction (“OSC”), Plaintiff alleges “incidents of stalking and civil 4 rights offenses were perpetrated across state and county lines and were reported in multiple 5 states and counties.” (Doc. 7 at 1.) He also filed a “request for protective order for case 6 documents” which the Court will construe as a motion to seal. (Doc. 6.) While the 7 Plaintiff’s response to the OSC was taken under submission, Plaintiff filed an ex parte 8 request for temporary restraining order (“TRO”) against Defendant on October 3, 2022, 9 which includes allegations of stalking by Defendant. (Doc. 9.) 10 For the reasons stated below, the Court DENIES Plaintiff’s Motion to Seal, 11 GRANTS Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (“IFP Motion”), 12 DENIES AS MOOT Plaintiff’s Motion to Appoint Counsel, DENIES AS MOOT 13 Plaintiff’s Motion for Federal Restraining Order, DENIES AS MOOT Plaintiff’s Ex Parte 14 Application for TRO, and DISMISSES THE ACTION WITHOUT PREJUDICE. 15 I. MOTION TO SEAL 16 Plaintiff filed a “request for protective order for case documents” which is construed 17 as a motion to seal case documents. (Doc. 6.) Plaintiff has not specified what case 18 documents he seeks to seal nor has he lodged copies of any documents with the Court to 19 accompany his motion to seal. See Electronic Case Filing Administrative Policies and 20 Procedures Manual, § 2(j) (Sept. 27, 2022). As such, Plaintiff has failed to satisfy either 21 the good cause or the compelling reasons standard for sealing. Ctr. for Auto Safety v. 22 Chrysler Grp., LLC, 809 F.3d 1092, 1096-1097 (9th Cir. 2016). Accordingly, Plaintiff’s 23 motion is DENIED. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 II. IFP MOTION 2 All parties instituting a civil action in a district court of the United States, except an 3 application for a writ of habeas corpus, must pay a filing fee of $402.1 See 28 U.S.C. 4 § 1914(a); CivLR 4.5(a). Under 28 U.S.C. § 1915, however, a litigant who because of 5 indigency is unable to pay the required fees or security to commence a legal action may 6 petition the court to proceed without making such payment. 28 U.S.C. § 1915(a)(1). “An 7 affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot 8 pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 9 1226, 1234 (9th Cir. 2015). The facts of an affidavit of poverty must be stated “with some 10 particularity, definiteness and certainty.” Id. (quoting United States v. McQuade, 647 F.2d 11 938, 940 (9th Cir. 1981)). The determination of indigency falls within the district court’s 12 discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on 13 other grounds, 506 U.S. 194 (1993). 14 Here, Plaintiff states that he is unable to pay the costs of these proceedings. (Doc. 2 15 at 1.) Plaintiff is currently unemployed, and Plaintiff receives income in the amount of 16 $237 per month from public assistance. (Id. at 2.) Plaintiff has no assets in any checking 17 or savings accounts. (Id.) Plaintiff’s monthly expenses for rent, food, renter’s insurance, 18 and taxes total $3,404. (Id. at 4-5.) Plaintiff has two dependents who rely on him for 19 support. (Id. at 3.) After considering Plaintiff’s application, the Court determines that 20 Plaintiff cannot afford to pay the filing fee in this case and is eligible to proceed in forma 21 pauperis pursuant to 28 U.S.C. § 1915(a). Accordingly, Plaintiff’s IFP Motion is 22 GRANTED. 23 III. SCREENING 24 A complaint filed by a plaintiff proceeding IFP is subject to screening under 28 25 U.S.C. § 1915(e)(2). Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam). 26

27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 This statute requires the court “to dismiss the case at any time if the court determines that 2 . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which 3 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune 4 from such relief.” 28 U.S.C. § 1915(e)(2). 5 A. Rule 8 Standard of Review 6 A complaint fails to state a claim for relief if it does not satisfy Federal Rule of Civil 7 Procedure (“Rule”) 8(a). Rule 8(a) requires: “(1) a short and plain statement of the grounds 8 for the court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that 9 the pleader is entitled to relief; and (3) a demand for the relief sought, which may include 10 relief in the alternative or different types of relief.” FED. R. CIV. PRO. 8(a)(1)–(3); see also 11 Rivera v. First Student, No. 18-CV-04033 NC, 2018 WL 10468016, at *2 (N.D. Cal. July 12 27, 2018). If a complaint does not meet these requirements, it is subject to dismissal. See, 13 e.g., McHenry v. Renne, 84 F.3d 1172, 1177–78 (9th Cir. 1996) (affirming dismissal of a 14 third amended complaint that was “argumentative, prolix, replete with redundancy, and 15 largely irrelevant”); Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985) 16 (affirming dismissal of complaints that “were confusing and conclusory and not in 17 compliance with Rule 8”). 18 Rule 8(d)(1) requires that each allegation in the complaint be “simple, concise, and 19 direct.” FED. R. CIV. PRO. 8(d)(1). Rule 8 ensures that each defendant has “fair notice of 20 what the plaintiff’s claim is and the grounds upon which it rests.” Dura Pharms., Inc. v. 21 Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 This rule “applies to good claims as well as bad,” and it is a reason for dismissing a 23 complaint that is independent of Federal Rule of Civil Procedure 12(b)(6). McHenry, 84 24 F.3d at 1179. 25 B. Discussion 26 Having reviewed Plaintiff’s Complaint, the Court finds that it fails to comply with 27 Rule 8. Plaintiff has not included “a short and plain statement of the grounds for the court’s 28 jurisdiction.” FED. R. CIV. PRO. 8(a)(1). A plaintiff bears the burden of establishing 1 “subject matter jurisdiction.” This jurisdiction can arise in two ways: (1) as “federal 2 question” jurisdiction under 28 U.S.C. § 1331; or (2) as “diversity of citizenship” 3 jurisdiction” under 28 U.S.C. § 1332. Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). 4 Under federal question jurisdiction, “courts shall have original jurisdiction of all civil 5 actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 6 1331. Under diversity jurisdiction, each plaintiff must be a citizen of a different state than 7 each of the defendants, and the “amount in controversy” must exceed $75,000. 28 U.S.C. 8 § 1332(a); see, e.g., Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). A plaintiff can allege 9 the “citizenship” of individuals by stating where the individual is “domiciled,” or where 10 they permanently reside. 11 Plaintiff’s Complaint itself fails to mention the grounds for the Court’s jurisdiction. 12 (See Doc. 1.) However, the civil cover sheet Plaintiff filed states federal question 13 jurisdiction as the basis for the Court’s jurisdiction. (Doc. 1-1.) To the extent Plaintiff 14 seeks to sue Defendant for stalking, he cannot do so in this Court. Stalking is not a federal 15 question, it is a state law claim that arises under California law. See Cal. Civ. Code § 16 1708.7; see also 28 U.S.C. § 1331. To the extent Plaintiff is claiming that his civil rights 17 were violated, he must state this in his pleading. Further, he can only do so if Defendant 18 is a state or federal governmental actor. See 42 U.S.C. § 1983; Devereaux v. Abbey, 263 19 F.3d 1070, 1074 (9th Cir. 2001) (“Section 1983 creates a private right of action against 20 individuals who, acting under color of state law, violate federal constitutional or statutory 21 rights.”); Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 22 388 (1971) (allowing civil rights lawsuits against defendants acting under color of federal 23 law). Similarly, if he is claiming that Defendant committed a tort against him, Defendant 24 must be an employee of the government acting within the scope of her employment. See 25 28 U.S.C. §§ 1346 and 2671–80 (known as the “Federal Tort Claims Act”). The Complaint 26 contains no allegations that Defendant was a state actor and/or an employee of the 27 government. As such, the Court cannot reasonably construe his allegations as arising under 28 any of these federal causes of action. 1 Plaintiff’s response to the OSC states “incidents of stalking and civil rights offenses 2 were perpetrated across state and county lines and were reported in multiple states and 3 counties” and an investigation by Federal Bureau of Investigation took place related to 4 stalking incidents. (Doc. 7.) However, these additional factual allegations are insufficient 5 to confer either federal question or diversity jurisdiction. See 28 U.S.C. §§ 1331, 1332. 6 Because Plaintiff has not complied with the pleading requirements in Rule 8, the Court 7 finds dismissal appropriate under Rule 8 and 28 U.S.C. § 1915(e)(2)(ii). 8 Since there is no basis for federal jurisdiction, it would be improper to consider the 9 merits of Plaintiff’s motion for restraining order, ex parte application for TRO, and motion 10 for appointment of counsel. See Benoit v. PNC Bank, No. 19-cv-1063-MCE-DB, 2019 WL 11 2567140, *2 (E.D. Cal. June 21, 2019) (dismissing TRO as moot when court dismissed 12 action for lack of subject matter jurisdiction); Zielke v. Rosenstiel, No. CV-702-PSG-EMx, 13 2019 WL 626139, *2 (C.D. Cal. Feb. 14, 2019) (dismissing TRO as moot when court 14 lacked jurisdiction over case). Accordingly, the motion for restraining order, ex parte 15 application for TRO, and motion for appointment of counsel are denied as moot. 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED: 3 1. Plaintiff's IFP Motion is GRANTED. 4 2. Plaintiff's Motion to Seal is DENIED. 5 3. Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE pursuant to 6 ||28 U.S.C. § 1915(e)(2)Gi). Plaintiff may re-file his claim in state court. 7 4. Plaintiffs Motion to Appoint Counsel is DENIED AS MOOT. 8 5. Plaintiff's Motion for Federal Restraining Order is DENIED AS MOOT. 9 6. Plaintiff's Ex Parte Application for TRO is DENIED AS MOOT. 10 IT IS SO ORDERED. 11 ||} DATE: October 6, 2022 12

14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28