Opinion
No. CV-21-8079-PCT-DMF
06-30-2021
Eric Levanter DeMillard, et al., Plaintiffs, v. State of Arizona, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
Plaintiff Eric Levanter DeMillard filed a pro se Complaint on behalf of himself and Michael Tallone (Doc. 1). Plaintiff Eric Levanter DeMillard also filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), which is a request for leave to proceed in this matter in forma pauperis. Plaintiff Eric Levanter DeMillard consented to proceed before a United States Magistrate Judge (Doc. 6).
Michael Tallone is listed in the caption as a Plaintiff but is not otherwise identified or referenced in the Complaint (Doc. 1 at 1-3); see also Doc. 1-1, which reflects only Eric Levanter DeMillard on the envelope in which the Complaint was sent to the Court for filing.
The Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) pertains only to Plaintiff Eric Levanter DeMillard.
On May 7, 2021, the Court granted Eric Levanter DeMillard's Application to Proceed in District Court Without Prepaying Fees or Costs, screened the Complaint, ordered that service of the Complaint may not proceed, and gave Plaintiff Eric Levanter DeMillard an opportunity to file a First Amended Complaint addressing the deficiencies in his Complaint identified in the Court's Order (Doc. 9). In the May 7, 2021, Order, the Court warned that if Plaintiff did not file a First Amended Complaint addressing all of the deficiencies in his Complaint within twenty-one (21) days of the date of the Court's Order, undersigned would proceed with a Report and Recommendation for dismissal without prejudice of the Complaint and this action (Id.).
The deficiencies identified in the Court's May 7, 2021, Order (Doc. 9) are the same deficiencies identified in this Report and Recommendation.
Before appearances and consent of defendants, there is not full consent for undersigned to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017).
Plaintiff did not file a First Amended Complaint within twenty-one (21) days of the date of the Court's May 7, 2021, Order (Id.). Thus, undersigned proceeds with this Report and Recommendation for dismissal of this action without prejudice because the Complaint has numerous uncured deficiencies, including failure to meet basic pleading requirements, an improperly named/represented additional plaintiff, failure to meet jurisdictional requirements, and failure to state claims. In sections I, II, III, and IV, infra, the Court summarizes the applicable law. In section V, infra, the Court reviews the deficiencies of the Complaint, recommending dismissal of this action without prejudice.
Despite that Plaintiff has made numerous improper filings in this matter since the Court's Order (see Docs. 10-17), Plaintiff has not timely filed any First Amended Complaint.
I. SCREENING/REVIEW PURSUANT TO 28 U.S.C. § 1915
Where, as here, a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). See also Lopez v. Smith, 203 F.3d 1122, 1126 fn. 7 (9th Cir. 2000) (28 U.S.C. § 1915(e) "applies all in forma pauperis complaints," not merely those filed by prisoners). Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 8(a)(2) provides that a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that lacks such statement fails to state a claim and must be dismissed.
In determining whether a complaint fails to state a claim, the court assumes that all factual allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, "the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The pertinent question is whether the factual allegations, assumed to be true, "state a claim to relief that is plausible on its face." Id. (citing Twombly, 550 U.S. at 570).
Where a complaint contains the factual elements of a cause, but those elements are scattered throughout the complaint without any meaningful organization, the complaint does not set forth a "short and plain statement of the claim" for purposes of Rule 8, Federal Rules of Civil Procedure. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988). Thus, a complaint may be dismissed where it lacks a cognizable legal theory, lacks sufficient facts alleged under a cognizable legal theory, or contains allegations disclosing some absolute defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, fn. 1 (9th Cir. 1997).
To survive dismissal, a complaint must give each defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). In the absence of fair notice, a defendant "should not be required to expend legal resources to guess which claims are asserted against her or to defend all claims 'just in case.'" Gregory v. Ariz. Div. of Child Support Enforcement, No. CV11-0372-PHX-DGC, 2011 WL 3203097, at *1 (D. Ariz. July 27, 2011).
Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must "construe the pleadings liberally ... to afford the petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Under the pleading standard set by the Supreme Court's decision in Iqbal, however, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Further, "[a] district court should not dismiss a pro se complaint without leave to amend unless 'it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam)).
When the court grants leave to amend, the "court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). "Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors." Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). The court should not, however, advise the litigant how to cure the defects; this type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004).
The Court previously provided Plaintiff with notice of his Complaint's deficiencies, including pleading requirement deficiencies, and granted Plaintiff leave to amend within a reasonable period of time (Doc. 9). Despite that Plaintiff has made numerous improper filings in this matter since the Court's Order (see Docs. 10-17), Plaintiff has not timely filed any First Amended Complaint.
II. PROPER PLAINTIFF(S)
Although a non-attorney may appear in propria persona in his own behalf, that privilege is personal to him. McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966). "He has no authority to appear as an attorney for others than himself." Id.; see also C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987). Section 1654, 28 U.S.C, provides that in federal court, "parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." Significant is the language contained in the statute that limits the authorization of civil litigants to "plead and conduct their own cases personally." (emphasis added). Courts have routinely adhered to the general rule prohibiting plaintiffs appearing in propria persona from pursuing claims on behalf of others in a representative capacity. Further, it does not appear that Plaintiff Eric Levanter DeMillard is an attorney authorized to practice in any court, let alone this Court.
Plaintiff Eric Levanter DeMillard cannot list any additional plaintiff on any complaint without proper legal basis to do so specifically set forth in the complaint. This requirement has not been met regarding the additional listed Plaintiff, Michael Tallone, in the Complaint that has been filed with the Court (Doc. 1). Plaintiff Michael Tallone is listed in the caption, but not described in the Complaint. Plaintiff Eric Levanter DeMillard cannot pursue claims in a representative capacity in these circumstances. This deficiency alone is cause for dismissal of Plaintiff Michael Tallone, who is referenced in the Complaint's caption.
III. JURISDICTION
The Court has an independent obligation to determine whether it has subject-matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Pursuant to Fed. R. Civ. P. 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."
This Court is a limited jurisdiction court; this court has no jurisdiction beyond that conferred upon it by federal statute. Brandt v. Bay City Super Mkt., 182 F.Supp. 937, 939 (N.D. Cal. 1960). Fed. R. Civ. P. 8(a)(1) requires that a complaint contain a "short and plain statement of the grounds for the court's jurisdiction." Further, the party asserting jurisdiction bears the burden of establishing jurisdiction. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). The United States Supreme Court has stated that a federal court must not disregard or evade the limits on its subject matter jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, the Court is obligated to evaluate its subject matter jurisdiction in each case and to dismiss a case when such jurisdiction is lacking. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004); Fed. R. Civ. P. 12(h)(3). Unlike state courts, federal courts only have jurisdiction over a limited number of cases, and those cases involve either a question of federal law (federal question jurisdiction) or a significant controversy between citizens of different states (diversity jurisdiction). See 28 U.S.C. §§ 1331, 1332.
Plaintiff alleges both federal question jurisdiction and diversity jurisdiction (Doc. 1 at 6).
A. Federal Question Jurisdiction
For federal question jurisdiction, 28 U.S.C. § 1331 provides that district courts have jurisdiction over "all civil actions that arise under the Constitution, laws, or treaties of the United States." The federal question jurisdiction statute, 28 U.S.C. § 1331, is applicable only when the plaintiff sues under a federal statute that creates a right of action in federal court. See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 807-12 (1986); see also Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1283 (9th Cir. 1987). For example, a complaint that alleges only a federal constitutional violation, for example, is insufficient. The Court's "limited jurisdiction cannot be invoked so simplistically." Yokeno v. Mafnas, 973 F.2d 803, 807 (9th Cir. 1992); see also Lippitt v. Raymond James Fin. Servs., 340 F.3d 1033, 1040 (9th Cir. 2003) (quoting Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986)) (it is a "long-settled understanding that the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction"). "[A] complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim 'arising under the Constitution, laws, or treaties of the United States.'" Merrell Dow Pharm. v. Thompson, 478 U.S. at 817 (quoting 28 U.S.C. § 1331).
B. Diversity Jurisdiction
In 28 U.S.C. §1332, the United States Code specifies the requirements for federal subject matter based on diversity of citizenship. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, the plaintiff must be a resident of a different state than the defendants and the matter in controversy must exceed the sum or value of $75,000, exclusive of interest and costs. See Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
Diversity jurisdiction requires complete diversity, meaning, every plaintiff must be diverse from every defendant. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). To establish a party's citizenship in a particular state, a party must prove that the person is "domiciled" in that state. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). A natural person is domiciled in the location in which he or she has established a fixed habitation or adobe, and has an intention to remain permanently or indefinitely. Owens v. Huntling, 115 F.2d 160, 162 (9th Cir. 1940) (citations omitted). "[T]he existence of domicile for purposes of diversity is determined as of the time the lawsuit is filed." Lew, 797 F.2d at 750. "'Domicile' is not necessarily synonymous with 'residence,' and one can reside in one place but be domiciled in another." Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). A change in domicile requires the physical presence at the new location with an intention to remain there indefinitely. See Williamson v. Osenton, 232 U.S. 619, 624 (1914); Lew, 797 F.2d at 750. A person's old domicile is not lost until a new one is acquired, and there is a presumption in favor of an established domicile as against an allegedly newly acquired one. Lew, 797 F.2d at 750-51.
The federal diversity statute has particular provisions regarding citizenship of corporations. See 28 U.S.C. § 1332(c)(1). As explained by the Ninth Circuit:
For purposes of determining diversity jurisdiction, "a corporation shall be deemed to be a citizen of every State ... by which it has been incorporated and of the State ... where it has its principal place of business." 28 U.S.C. § 1332(c)(1). While a corporation's state of incorporation can be determined with ease, its principal place of business often proves elusive. To simplify the jurisdictional inquiry, the Supreme Court has defined "principal place of business" to mean "the place where the corporation's high level officers direct, control, and coordinate the corporation's activities." Hertz Corp. v. Friend, 559 U.S. 77, 80, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). This "nerve center" is "typically ... found at a corporation's headquarters." Id. at 81, 130 S.Ct. 1181.3123 SMB LLC v. Horn, 880 F.3d 461, 462-63 (9th Cir. 2018). The diversity jurisdiction statute states that:
a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of--28 U.S.C. § 1332(c)(1).
(A) every State and foreign state of which the insured is a citizen;
(B) every State and foreign state by which the insurer has been incorporated; and
(C) the State or foreign state where the insurer has its principal place of business[.]
In addition to full diversity of parties, diversity jurisdiction requires the amount in controversy to exceed $75,000 exclusive of interest and costs. See 28 U.S.C. § 1332(a)(1). When, as here, "the plaintiff originally files in federal court, 'the amount in controversy is determined from the face of the pleadings.'" Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010) (quoting Crum v. Circus Enters., 231 F.3d 1129, 1130 (9th Cir. 2000)). The Ninth Circuit has explained that:
[t]he amount in controversy alleged by the proponent of federal jurisdiction-typically the plaintiff in the substantive dispute-controls so long as the claim is made in good faith ... [Crum, 231 F.3d at 1131) ]. "To justify dismissal, it must appear to a legal certainty that the claim is really for less than the jurisdictional amount." Id. (internal quotation omitted). This is called the "legal certainty" standard, which means a federal court has subject matter jurisdiction unless "upon the face of the complaint, it is obvious that the suit cannot involve the necessary amount." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 292, 58 S.Ct. 586, 82 L.Ed. 845 (1938).Id. See also Riggins v. Riggins, 415 F.2d 1259, 1269 (9th Cir. 1969) ("The basic rule is that, for jurisdictional purposes, the amount in controversy is measured by the amount of the claim.... This rule is subject to the qualification that the amount of the claim must appear to be in good faith and not fictitiously asserted simply to allege a sum sufficient for federal jurisdiction.").
There is a domestic relations exception to diversity jurisdiction; as the Ninth Circuit has explained:
The domestic relations exception to the jurisdictional grant has been given a narrow construction. Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (per curiam); 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3609 (1984). If the status of parent and child or husband and wife is the primary issue in a case, a federal court must decline jurisdiction. Buechold v. Ortiz, 401 F.2d 371, 372 (9th Cir. 1968). It follows that the exception to jurisdiction arises in those cases where a federal court is asked to grant a decree of divorce or annulment, or to grant custody or fix payments for support, the rationale being that those actions are close to the historical concept of an ecclesiastical action and peculiarly within the province of the state courts. Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir. 1982). The exception has also been applied in those instances where a plaintiff has commenced a federal action to enforce a state court status decree. See Bennett v. Bennett, 682 F.2d 1039, 1042-44 (D.C.Cir. 1982) (injunction); Tree Top v. Smith, 577 F.2d 519, 521 (9th Cir. 1978) (writ of habeas corpus to obtain custody)[.]McIntyre v. McIntyre, 771 F.2d 1316, 1317-18 (9th Cir. 1985).
IV. SUMMARY OF REQUIREMENTS FOR SUBSTANTIVE CLAIMS
A. Civil Rights Lawsuits Against Municipalities
The Complaint here non-specifically references "civil rights criminal violations" (Id. at 7). Yet, the United States Constitution itself does not create a federal cause of action. Azul-Pacifico Inc. v. City of L.A., 973 F.2d 704, 705 (9th Cir. 1992) ("Azul II") (stating that "Plaintiff has no cause of action directly under the United States Constitution"). For claims alleging the violation of constitutional rights by defendants acting under color of state law, a plaintiff must file an action under 42 U.S.C. § 1983. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) ("a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. § 1983") (citing Azul II, 973 F.2d at 705).
Municipalities are considered "persons" under 42 U.S.C. § 1983 and therefore may be liable for causing a constitutional deprivation. Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 (1978); Long v. County. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Under Monell, a local government or governmental entity may be liable for damages, as well as declaratory and injunctive relief, when a policy or custom of the local government produced a plaintiff's alleged constitutional deprivation. Monell, 436 U.S. at 691-94; see Los Angeles Co. v. Humphries, 562 U.S. 29, 39 (2010) (holding that the requirement that plaintiffs suing a municipal entity under § 1983 show that their injury was caused by a municipal policy or custom applies whether the remedy sought is money damages or prospective relief).
Under § 1983, a plaintiff may establish municipality liability in one of four ways. First, the plaintiff may prove that a municipal employee committed the alleged constitutional violation pursuant to a formal governmental policy or a "longstanding practice or custom that constitutes the 'standard operating procedure' of the local governmental entity." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (internal quotation omitted). Second, the plaintiff may establish that the individual who committed the constitutional violation was an official with "final policy-making authority" and that the challenged action itself thus constituted an act of official governmental policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). Whether a particular official has final policy-making authority is a question of state law. See Jett, 491 U.S. at 737; City of St. Louis v. Praprotnik, 485 U.S. 112, 123-24 (1988). Third, the plaintiff may prove that an official with final policy-making authority (or a subordinate with delegated authority) ratified a subordinate's unconstitutional decision or action and the basis for that decision or action. See Praprotnik, 485 U.S. at 127. Fourth, the plaintiff may prove that a municipality's failure to train its employees amounts to deliberate indifference to the rights of others. See Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); see also City of Canton v. Harris, 489 U.S. 378, 388 (1989). After proving one of these methods of liability, the plaintiff must show that the challenged municipal conduct was both the cause in fact and the proximate cause of the constitutional deprivation. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). . . .
B. Americans with Disabilities Act ("ADA") Claims
The Complaint apparently tries to raise a claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. From the allegations in the Complaint, it is not apparent under which Title of the ADA Plaintiff intends to proceed. Because Plaintiff does not appear to be any defendant's employee, the Court presumes Plaintiff is not proceeding under Title I. In order to state a claim under Title II of the ADA, regarding public entities such as state and local governments, a plaintiff must allege: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of [his] disability. See O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citations omitted). However, individuals cannot be directly sued under the ADA. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Title III of the ADA, which applies to private entities providing public services, requires entities to make reasonable accommodations so that people with disabilities can participate in and enjoy those services. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-77 (2001). To state a claim under Title III of the ADA, a plaintiff must show that he is disabled within the meaning of the ADA; that the defendant is a private entity that owns, leases, or operates a place of public accommodation; and that the plaintiff was denied public accommodation by the defendant because of his disability. Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010).
C. Defense of Marriage Act ("DOMA")
The Complaint references the Defense of Marriage Act ("DOMA"), 110 Stat. 2419. Yet, DOMA has been struck down by the United States Supreme Court as unconstitutional and is effectively unenforceable. Obergefell v. Hodges, 576 U.S. 644 (2015); United States v. Windsor, 570 U.S. 744 (2013).
V. COMPLAINT DEFICIENCIES AND RECOMMENDATION
The Complaint (Doc. 1) names multiple governments as defendants, such as the State of Arizona, Yavapai County, and various municipalities as well as several non-governmental defendants, such as a counseling center, counseling center employees, an apartment complex, and a law firm (Doc. 1 at 3-6). The Complaint seeks monetary relief of "trillions of dollars" in "compensation" (Id. at 9) and enforcement of a Utah divorce decree (Id. at 8). The Complaint references the ADA, DOMA, civil rights, and enforcement of a Utah divorce decree. After careful review, the Court finds that the Complaint has multiple deficiencies which prevent the Complaint from proceeding forward to service, including failure to satisfy pleading requirements. Allegations in the Complaint are abbreviated, conclusory, and scattered throughout the Complaint without any meaningful organization. Importantly, the allegations in the Complaint are insufficient to put any defendant on notice of the nature of the claims and fail to state any claim.
The allegations in the Complaint are wholly insufficient to state a claim under any Title of the ADA. For example, no factual allegations address what public services any defendant provides or how any defendant failed to reasonably accommodate people with disabilities in doing so. Nor has Plaintiff set forth factual allegations to support any claim for violation of civil rights. The Complaint simply states that Plaintiff DeMillard "wishes to legally pursue his redress under the 1990 Americans with Disabilities Act and the September 21, 1996 Defense of Marriage Act" (Doc. 1 at 5) and non-specifically references "civil rights criminal violations" (Id. at 7). Further, not only are the attachments to the Complaint violations of the applicable rules regarding pleadings (Id. at 10-11), their contents do not align with elements of a civil rights or ADA claim. In addition, DOMA is unenforceable.
Also, the Complaint as written fails to establish this Court's limited jurisdiction. For example, the Complaint is written, albeit improperly, to name additional Plaintiff Michael Tallone, but the domicile of that Plaintiff is not stated, which constitutes failure to establish diversity jurisdiction. The amount in controversy requirement for diversity jurisdiction also appears tenuous at best; the amount does not appear to be tied to any asserted facts. Further, Count II of the Complaint seeks "enforcement" of a Utah divorce decree, which falls within the domestic relations exception to the statutory grant of diversity jurisdiction. Despite the abbreviated, inadequate description of the claims, it does appear that federal question jurisdiction is more likely to provide a conceivable jurisdictional basis for relief. Still, the Complaint fails to state a claim under any federal law referenced by Plaintiff, so the Court cannot properly examine the propriety of federal question jurisdiction in this matter.
In addition, Plaintiff Michael Tallone is not properly named/represented in this action.
Plaintiff was given notice of the above deficiencies and reasonable opportunity to file a First Amended Complaint that attempted to cure such deficiencies, but Plaintiff did not timely file any First Amended Complaint.
Accordingly,
IT IS HEREBY RECOMMENDED that the Complaint (Doc. 1) be dismissed without prejudice and without leave to amend.
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. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 30th day of June, 2021.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge cc: SMM