Opinion
CV 22-01249 PHX CDB
08-19-2022
Ernesto Alvarez, Plaintiff, v. Phoenix Municipal Court, Unknown Parties, Defendants.
TO THE HONORABLE STEPHEN M. McNAMEE:
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge.
Plaintiff, who is pro se in this matter, docketed the Complaint and a motion to proceed in forma pauperis on July 21, 2022. Defendants have not been served and have not appeared. Plaintiff's motion for leave to proceed in forma pauperis avers Plaintiff has no income, assets, or expenses. (ECF No. 2). Plaintiff names as Defendants the “City of Phoenix Municipal Court,” “Court Security,” and “Names Coming Soon.” (ECF No. 1 at 1). Plaintiff, a resident of Glendale, Arizona, asserts the Court has jurisdiction over his claims because he seeks relief pursuant to 42 U.S.C. § 1983. (ECF No. 1 at 3). Plaintiff also asserts claims pursuant to the Uniform Commercial Code (“UCC”), citing “UCC 1305” (requiring the “liberal administration” of remedies under the UCC), “UCC 1-308,”“UCC 1-103(b);” 18 U.S.C. § 951 (governing “[a]gents of foreign governments”); and 27 C.F.R. § 72 (this is illegible, it is not entirely clear what subsection of Title 27 of the Code of Federal Regulations Plaintiff is referencing). (Id.). With regard to his § 1983 claim, Plaintiff cites “Amendment 4, 8, 5,” asserting he was deprived of his “life, liberty, property w/out due process of law [and] just compensation.” (Id.).
Before appearances and consent of defendants, there is not full consent for a Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017). Accordingly, pursuant to General Order 21-25, this Report and Recommendation is made to Senior United States District Judge Stephen M. McNamee.
On page two of his Complaint, with regard to “Defendant No. 1,” Plaintiff states: “Please refer to Security Cameras,” also referencing “front checkpoint” and indicating defendants are sued in their “individual capacity.” (ECF No. 1 at 2). With regard to “Defendant No. 3,” Plaintiff states: “Surveillance video security cameras,” also sued in their “individual capacity.” (ECF No. 1 at 3).
This section provides:
(a) A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest,” or the like are sufficient.
(b) Subsection (a) does not apply to an accord and satisfaction.
This section provides:
(b) Unless displaced by the particular provisions of [the Uniform Commercial Code], the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.
Title 27 of the Code of Federal Regulations governs the Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms. Subpart 72 “relate[s] to personal property and carriers seized by alcohol, tobacco and firearms officers as subject to forfeiture as being involved, used, or intended to be used, as the case may be, in any violation of Federal laws.”
As the factual basis for his claims, Plaintiff alleges that on June 16, 2022, at 4:39 p.m., he went to the Phoenix Municipal Court to
.. dispute an illegal speed trap, the security officer asked me to follow their standard procedure. I asked how does the 4th amendment apply, and in retaliation after I complied the police officer, as practical joke took my keys from the rest of my personal belongings. I paid almost $400.00 to replace a key and had to sleep in the street, since he took also my house keys. The following day, the supervisor forced me to “contr***” [contract? this word is not legible] with her, in exchange for my own keys. 18 U.S.C. 951.(ECF No. 1 at 4).
With regard to his injuries, Plaintiff seeks “injuries in tort damages.” (ECF No. 1 at 5). With regard to the relief he seeks, Plaintiff states:
1) Subject matter jurisdiction.
2) Why is this Court and State acting so shady with my “lis***” [this word is illegible]? That they would go to the extent of bullying me with my keys.
3) Just compensation for loss time, pain, and suffering.
4) Dismiss and relief from all fraudulent contracts, with prejudice.(Id.).
Generally, parties who file an action in a federal district court must pay a filing fee. See 28 U.S.C. § 1914(a). However, 28 U.S.C. § 1915 permits indigent plaintiffs to apply for a fee waiver. Such a motion may be granted when the plaintiff has established their indigency and docketed a complaint which presents at least one nonfrivolous claim. See, e.g., Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 756-57 (7th Cir. 1988); Umar v. Godinez, 150 F.R.D. 139, 139 (N.D. Ill. 1993). However, in civil actions leave to proceed in forma pauperis “should be allowed only in exceptional circumstances.” Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963) (internal quotations omitted). Proceeding in forma pauperis in a civil case “is a privilege, not a right-fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). Granting or denying this privilege is a matter within the Court's discretion. See, e.g., Denton v. Hernandez, 504 U.S. 25, 33 (1992); Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998). Additionally, a plaintiff must establish the Court's jurisdiction over their claim(s). As relevant to the instant complaint, a plaintiff may establish the Court's subject matter jurisdiction by asserting that the defendant violated the Constitution, a federal law, or treaty of the United States. See 28 U.S.C. § 1331.
In cases wherein a pro se plaintiff seeks leave to proceed in forma pauperis, the Court is required to screen the complaint and the Court must dismiss the case if it determines the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001). Screening under § 1915(e)(2) is performed under the same standard of review as Federal Rule of Civil Procedure 12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint that fails to allege a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a plausible claim for relief. See UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013).
Conclusory statements, “unadorned, the-defendant-unlawfully-harmed-me accusation[s],” and factual allegations that only permit the Court to infer the “possibility of misconduct” fall short of meeting the plausibility standard. Iqbal, 556 U.S. at 678-79. See also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Pro se pleadings must contain a minimum level of factual support and a plaintiff should not be allowed to proceed in forma pauperis if the Court must invent scenarios not evident from the face of the complaint. See Richmond v. Cagle, 920 F.Supp. 955, 957 (E.D. Wis. 1996), cited in Staples v. Arizona Dep't of Econ. Sec., 2007 WL 864742, at *1 (D. Ariz. Mar. 20, 2007). To survive screening, “[t]he plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim.” Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (internal quotations omitted).
... Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit ... To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, . [such as] claims against . defendants [who] are immune from suit, [], and claims of infringement of a legal interest which clearly does not exist . . .Nietzke v. Williams, 490 U.S. 319, 327 (1989) (internal citation omitted).
Plaintiff fails to name an identifiable defendant amenable to suit under § 1983. The only defendant actually named in the Complaint is the Phoenix Municipal Court. Under the Eleventh Amendment to the Constitution of the United States, a state or an arm of the state may not be sued in federal court without its consent. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). State courts are “arms of the State” and, accordingly, a state court may not be sued pursuant to § 1983. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987), superseded by statute on other grounds; Lucas v. Arizona Sup. Ct. Fiduciary Certification Program, 457 Fed.Appx. 689, 690 (9th Cir. 2011). Municipal courts, as part of the hierarchical system of state courts, are also arms of the state protected from suit by Eleventh Amendment immunity. See Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995). Accordingly, the Phoenix Municipal Court is not a defendant amenable to suit pursuant to § 1983.
In addition to a paucity of clear and specific factual allegations, Plaintiff's Complaint fails to establish the Court's subject-matter jurisdiction pursuant to § 1983. To the extent Plaintiff seeks to name any individual who personally violated his federal constitutional rights as a defendant, Plaintiff makes only vague and conclusory allegations that (1) a municipal court security guard took his keys without a valid reason during a security screening; and (2) the following day a “supervisor” gave his keys back after striking a bargain of some kind with Plaintiff. These facts are insufficient to allege a violation of Plaintiff's federal constitutional rights. Notably, Plaintiff does not allege he was searched or wrongfully detained, and he allows his keys were returned.
With regard to his allegation that a defendant is liable to Plaintiff for damages because one or more sections of the Uniform Commercial Code (“UCC”) were violated, claims of a violation of the UCC, standing alone, fail to provide the Court with subject matter jurisdiction because the UCC is not a federal statute, i.e., it is not a federal “law.” See Motorola, Inc. v. Perry, 917 F.Supp. 43, 48 (D.D.C. 1996) (noting that the UCC is not federal law). A civil action based on the UCC does not arise under the laws of the United States and, therefore, does not provide a court with federal-question jurisdiction. See Chase Home Fin., LLC v. Mungaro, 2005 WL 3334451, at *1-2 (N.D.Ga. Dec. 8, 2005) (finding no federal-question jurisdiction where the defendant removed the case to federal court claiming federal-question jurisdiction predicated on the plaintiff's purported violation of the UCC); Whitus v. Countrywide Mortg., Inc., 2004 WL 2165362, at *3 (D. Or. Sept. 24, 2004) (finding a reference to the UCC insufficient to raise a federal question). Accordingly, Plaintiff's purported cause of action under the UCC is frivolous because the UCC “is not a federal statute” and “a civil action based on the UCC does not arise under the laws of the United States, and, therefore, does not provide a court with federal question jurisdiction.” Cagan v. Jordans Prop. Mgmt. Servs., LLC, 2012 WL 13133673, at *2 n.3 (N.D.Ga. Jan. 11, 2012), report and recommendation adopted, 2012 WL 13133670 (N.D.Ga. Jan. 31, 2012). See also Birch-Min v. Birch, 2022 WL 2180102, at *3 (D.V.I. June 15, 2022); Kemezis v. Matthew, 2008 WL 2468377, at *7 (E.D. Pa. June 16, 2008) (“[T]he Uniform Commercial Code is not a federal statute, and in order for Plaintiffs to make any claim under the UCC, they would have to show diversity jurisdiction.”), aff'dsub nom. Kemezis v. Matthews, 394 Fed.Appx. 956 (3d Cir. 2010).
Broadly construing his complaint, Plaintiff also alleges a claim that a city government employee did not follow a particular section of the Code of Federal Regulations, i.e., 27 C.F.R. § 72.1 (or some other portion of subpart 72). Title 27 of the Code of Federal Regulations propounds regulations governing the Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms. Subpart 72 “relate[s] to personal property and carriers seized by alcohol, tobacco and firearms officers as subject to forfeiture as being involved, used, or intended to be used, as the case may be, in any violation of Federal laws.” (emphasis added). A city employee is not an officer of the Bureau of Alcohol, Tobacco and Firearms. Additionally, this section of the Code of Federal Regulations does not, on its face, confer upon Plaintiff or any other individual citizen a statutory right to sue a municipality or municipal employee. Cf. Cobian v. Department of Land, 2016 WL 6832624, at * (D. Haw. Nov. 18, 2016) (concluding that the tax law and regulations cited by the plaintiff did not create a private cause of action for enforcement of those regulations by plaintiff). Furthermore, Plaintiff does not allege that any of his personal property was subject to forfeiture; Plaintiff allows his personal property was returned to him.
Because the Complaint does not properly state a claim for relief over which the Arizona District Court has jurisdiction, regardless of whether Plaintiff has met the standard for proceeding in forma pauperis, the Court is within its discretion to dismiss the Complaint without prejudice. See O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990); Bennett v. People of the State of Calif., 406 F.2d 36, 39 (9th Cir. 1969); Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998). It is well-established that a pro se litigant must be given leave to amend their complaint unless it is clear that the deficiencies of the complaint cannot be cured by amendment. See, e.g., Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). It is not absolutely clear that Plaintiff will be unable to cure the deficiencies of the Complaint by amendment.
Accordingly, upon screening pursuant to 28 U.S.C. §1915(e)(2), IT IS ORDERED that the motion to proceed in this matter without prepayment of fees and costs (ECF No. 2) is denied without prejudice.
IT IS RECOMMENDED that the Complaint (ECF No. 1) be dismissed without prejudice.
IT IS FURTHER RECOMMENDED that Plaintiff be granted leave to file a First Amended Complaint in accordance with this Report and Recommendation no later than thirty days from the date Judge McNamee rules on the Report and Recommendation. Plaintiff may again seek leave to proceed in forma pauperis if he files a First Amended Complaint.
IT IS FURTHER ORDERED that, if Plaintiff elects to file a First Amended Complaint, the First Amended Complaint shall not be served until and unless the Court screens it pursuant to 18 U.S.C. § 1915(e)(2).
IT IS FURTHER RECOMMENDED that Judge McNamee order the Clerk of Court to enter judgment dismissing this action without further notice to Plaintiff or further order if Plaintiff elects not to file a First Amended Complaint within thirty days of Judge McNamee's ruling on this Report and Recommendation.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).