Gumber v. Fagundes

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] STEPHANIE ANN GUMBER, 7 Case No. 21-cv-03155-PJH Plaintiff, 8 ORDER (1) ADOPTING MAGISTRATE v. JUDGE’S REPORT AND 9 RECOMMENDATION AND KEITH FAGUNDES, et al., (2) DISMISSING COMPLAINT 10 WITHOUT PREJUDICE Defendants. 11 Re: Dkt. No. 11 [12] 13 The court has reviewed Chief Magistrate Judge Joseph C. Spero’s Report and 14 Recommendation Re: plaintiff’s motion to remove (Dkt. 8) and plaintiff’s motion for 15 emergency injunction (Dkt. 10). The court finds the report correct, well-reasoned and 16 thorough, and adopts it in every respect. Accordingly, plaintiff’s motion to remove is 17 DENIED, and plaintiff’s motion for emergency injunction is DENIED. 18 In addition to considering plaintiff’s motions, Judge Spero suggested that the 19 complaint be dismissed pursuant to Title 28 U.S.C. § 1915 (e) for failure to state a claim 20 on which relief may be granted. Plaintiff filed an “opposition to motion to dismiss” on July 21 22, 2021, which the court construes as an objection to the report. Dkt. 13. To the extent 22 plaintiff’s brief of July 22 serves as an objection to the report, it is OVERRULED. The 23 court considers the issue of dismissal below. 24 A. Legal Standard 25 Under 28 U.S.C. § 1915 (a), “[a]ny court of the United States may authorize the 26 commencement . . . of any suit . . . without prepayment of fees and costs or security 27 therefor, by a person who makes affidavit that he is unable to pay such costs or give 1 court may dismiss a case sua sponte if the court determines that the party applying for in 2 forma pauperis status has failed to state a claim on which relief may be granted. 28 3 U.S.C. § 1915 (e)(2). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 7 F.3d 1108 , 1112 (9th Cir. 2012) (citing Lopez v. Smith, 203 F.3d 1122, 1127-31 (9th Cir. 8 2000)). A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the 9 claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191 , 1199-1200 (9th Cir. 2003). 10 Under Federal Rule of Civil Procedure 8, which requires that a complaint include a “short 11 and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. 12 P. 8 (a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a 13 cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal 14 theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). 15 While the court is to accept as true all the factual allegations in the complaint, 16 legally conclusory statements, not supported by actual factual allegations, need not be 17 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer 18 sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. 19 Twombly, 550 U.S. 544, 555, 558-59 (2007). Where dismissal is warranted, it is 20 generally without prejudice, unless it is clear the complaint cannot be saved by any 21 amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005). 22 B. Discussion 23 In the caption of the complaint, plaintiff lists the following causes of action: 24 (1) violation of Title 18 U.S.C. § 241 ; (2) violation of Title 42 U.S.C. § 1983 ; (3) violation 25 of Title 18 U.S.C. § 1964 (C) (RICO); (4) violation of Title 18 U.S.C. § 1341 ; (5) Title 18 26 U.S.C. § 1201 (c); (6) Title 19 U.S.C. § 912 ; (7) “violation of Federal Law Foreign Agent 27 Registration Act of 1937” ( 22 U.S.C. § 611 et seq.); and (8) violation of Title 18 U.S.C. 1 § 1986; (10) Title 18 U.S.C. § 242 ; and (11) Title 34 U.S.C. § 12601 . 2 As recommended in the report, the court concludes that the claims under 18 3 U.S.C. §§ 241 , 242, 912, 1341, 1702, and 1201(c); 22 U.S.C. § 611 et seq.; and 34 4 U.S.C. § 12601 all must be dismissed because there is no private right of action as to 5 those claims. 6 Similarly, the claim under Title 42 U.S.C. § 1986 is dismissed with prejudice 7 because plaintiff does not allege a claim under Title 42 U.S.C. § 1985 . See Karim8 Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). 9 The claim under Title 18 U.S.C. § 1964 (C), for violations of the Racketeer 10 Influenced and Corrupt Organizations Act (“RICO”), is dismissed because the plaintiff 11 does not allege a plausible claim for relief. A plaintiff may pursue a civil remedy for a 12 RICO violation that proximately caused the plaintiff a cognizable injury. Anza v. Ideal 13 Steel Supply Corp., 547 U.S. 451, 453 (2006). Plaintiff’s complaint fails to identify a 14 RICO violation and fails to allege any facts that a RICO violation proximately caused her 15 harm, so plaintiff fails to state a claim for a RICO violation under Title 18 U.S.C. 16 § 1964(c). However, the court grants plaintiff leave to amend this claim. 17 The claim under § 1983 is also dismissed. As noted by Judge Spero, a prosecutor 18 is entitled to absolute immunity with respect to conduct that is “intimately associated with 19 the judicial phase of the criminal process.” Dkt. 11 at 7 (quoting Imbler v. Pachtman, 424 20 U.S. 409 , 427, 430-431 (1976)). Plaintiff’s § 1983 claim is premised on defendants’ 21 efforts to charge her with a crime and advancing their criminal case against her in state 22 court. Plaintiff’s § 1983 claim is therefore dismissed with prejudice based on 23 prosecutorial immunity. However, to the extent plaintiff intends to assert a constitutional 24 violation for something other than her prosecution, plaintiff is granted leave to amend. 25 C. Conclusion 26 For the reasons stated above, all claims in the complaint are DISMISSED under [27] 28 U.S.C. § 1915 on the basis that the complaint fails to state any valid claim. Plaintiff 1 912, 1341, 1702, and 1201(c); 22 U.S.C. § 611 et seq.; and 34 U.S.C. § 12601 because 2 there is no private right of action as to those claims. Therefore, those claims are 3 DISMISSED WITH PREJUDICE. The claim under Title 42 U.S.C. § 1986 is DISMISSED 4 WITH PREJUDICE because plaintiff does not allege a claim under Title 42 U.S.C. 5 § 1985. 6 Going forward, plaintiff may not seek to litigate any of the claims dismissed with 7 prejudice. Plaintiff may amend her complaint with respect to only the RICO and § 1983 8 claims dismissed without prejudice as specified in this order. The court allows plaintiff 30 9 days from the date of this order to file a first amended complaint correcting all 10 deficiencies in those two claims. No new claims or parties may be added without the 11 agreement of defendants or leave of court. 12 IT IS SO ORDERED. 13 Dated: August 11, 2021 14 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 15 United States District Judge