Opinion
4:20-cv-08561-KAW
04-21-2021
KENNETH CARL GUY, Plaintiff, v. JOHN DOE, et al., Defendants.
ORDER REASSIGNING CASE TO DISTRICT JUDGE; REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT AND DENY MOTION FOR PRELIMARY INJUCTION AS MOOT RE: DKT. NO. 1, 15
KANDIS A. WESTMORE, UNITED STATES MAGISTRATE JUDGE
On December 1, 2020, Plaintiff Kenneth Carl Guy filed this civil action and application to proceed in forma pauperis. The Court previously granted Plaintiff's application to proceed in forma pauperis. (Dkt. No. 10.) On February 19, 2021, Plaintiff filed a motion for preliminary injunction. (Dkt. No. 15.) Accordingly, the undersigned reassigns this case to a district judge with the recommendation that the complaint be DISMISSED pursuant to 28 U.S.C. § 1915, and that the motion for preliminary injunction be DENIED as moot.
I. LEGAL STANDARD
The in forma pauperis statute provides that the Court shall dismiss the case if at any time the Court determines that the allegation of poverty is untrue, or that the action (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
A complaint is frivolous under Section 1915 where there is no subject matter jurisdiction. See Castillo v. Marshall, 207 F.3d 15, 15 (9th Cir. 1997) (citation omitted); see also Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 19987) (recognizing the general proposition that a complaint should be dismissed as frivolous on Section 1915 review where subject matter jurisdiction is lacking).
A complaint may also be dismissed for failure to state a claim, because Section 1915(e)(2) parallels the language of Federal Rule of Civil Procedure 12(b)(6). Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint, therefore, must allege facts that plausibly establish the defendant's liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). When the complaint has been filed by a pro se plaintiff, 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). Upon dismissal, pro se plaintiffs proceeding in forma pauperis must be given leave to “amend their complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Franklin v. Murphy, 745 F.2d 1221, 1235 n.9 (9th Cir. 1984) (internal citations and quotation marks omitted); Lopez v. Smith, 203 F.3d 1122, 113031 (9th Cir. 2000).
II. DISCUSSION
As courts of limited jurisdiction, “federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004) (noting that district courts are “obligated to consider sua sponte whether [they] have subject matter jurisdiction”). There are two bases for federal subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 1331 and (2) diversity jurisdiction under 28 U.S.C. § 1332. A district court has federal question jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United States.” Id. at § 1331. A cause of action “arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law.” Hansen v. Blue Cross of Cal., 891 F.2d 1384, 1386 (9th Cir. 1989). A district court has diversity jurisdiction “where the matter in controversy exceeds the sum or value of $75,000 . . . and is between citizens of different states, or citizens of a State and citizens or subjects of a foreign state.” Id.
Here, Plaintiff alleges that he has been retaliated against for filing a complaint with the EEOC, and so he has filed an “all writs petition” pursuant to 28 U.S.C. § 1651(a), because he has been unable to “litigate in any manner free from relentless criminal acts of slander, harassment, fraud, and invasions of privacy….” (Petition, Dkt. No. 1 ¶ 4.) Plaintiff then states that he moved to San Francisco on August 23, 2019 and had his cell phone “hacked” by unknown Doe Defendants working for his unidentified former employer. (Petition ¶¶ 6, 8.) Plaintiff claims that private investigators for his former employer continue to harass, stalk, and victimize him, but that he has also been harassed and defrauded by several medical offices, social services organizations, an employment assistance center, several homeless shelters, “any store [he] has entered, ” and every person he has met online through any social media website. Id. at ¶¶ 9-10. In filing the Petition, Plaintiff contends that these acts are intended to prevent him from accessing the courts, and he seeks “[a]ny remedy this Court deems appropriate.” Id. at ¶¶ 73-74.
The Court notes that Plaintiff filed a prior case in which his electronic case filing privileges were rescinded due to multiple frivolous filings. Guy v. Pizzuti, 20-cv-01936-JD (N.D. Cal. Jul. 2, 2020), ECF No. 20. That case was ultimately dismissed because the amended complaint did not satisfy basic pleading standards, was unintelligible, and failed to state a plausible claim. Guy v. Pizzuti, Case No. 20-cv-01936-JD (N.D. Cal. Feb. 12, 2021), ECF No. 21 at 2. The operative complaint in the instant case suffers from the same deficiencies. Not only has Plaintiff failed to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief” as required by Rule 8 of the Federal Rules of Civil Procedure, the complaint itself is unintelligible, and does not state a claim for which relief can be granted. In fact, Plaintiff does not specify the relief sought. Plaintiff's subsequent motions for preliminary injunction and for appointment of counsel do not provide any indication that Plaintiff has a plausible claim at all, but, since Plaintiff is pro se, he should be permitted to file an amended complaint.
Accordingly, the Court concludes that the complaint is insufficient to satisfy Section 1915 review and recommends that Plaintiff's complaint be dismissed with leave to amend.
III. CONCLUSION
For the reasons set forth above, the allegations in Plaintiff's complaint are insufficient under 28 U.S.C. § 1915(e)(2). Given the pending motion for preliminary injunction, the undersigned REASSIGNS this case to a district judge with the RECOMMENDATION that the complaint be dismissed with leave to amend. In light of this recommendation, the undersigned further RECOMMENDS that the pending motion for preliminary injunction be denied as moot.
In amending the complaint, Plaintiff may wish to contact the Federal Pro Bono Project's Help Desk for assistance-a free service for pro se litigants-by calling (415) 782-8982 to make an appointment. While the Help Desk does not provide legal representation, a licensed attorney may assist Plaintiff in determining whether there are viable claims, and how to properly plead them.
Plaintiff may also wish to consult a manual the court has adopted to assist pro se litigants in presenting their case. This manual, and other free information for pro se litigants, is available online at: http://cand.uscourts.gov/proselitigants.
Any party may file objections to these recommendations within 14 days of being served with a copy. See 28 U.S.C. § 636(b); See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); N.D. Civil L.R. 72-3. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. IBEW Local 595 Trust Funds v. ACS Controls Corp., No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20, 2011).
IT IS SO ORDERED.