Arzaga v. Gill

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MICHAEL AARON ARZAGA, Case No.: 3:21-cv-00041-CAB-MSB CDCR #K-89848, [12] 1) GRANTING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. (ECF No. 31); [14] 15 2) DENYING AS MOOT MOTION DAVID M. GILL, et al., TO PROCEED IN FORMA 16 Defendants. PAUPERIS (ECF No. 29); [17] AND [18] 19 3) DISMISSING COMPLAINT FOR LACK OF SUBJECT-MATTER [20] JURISDICTION PURSUANT TO 21 FED. R. CIV. P. 12(h)(3) AND FOR FAILURE TO STATE A CLAIM [22] PURSUANT TO 28 U.S.C. § 23 1915(e)(2)(B)(ii) AND 28 U.S.C. § 1915A(b) [25] 26 Plaintiff Michael Aaron Arzaga (“Plaintiff”), currently incarcerated at Kern Valley 27 State Prison, is proceeding pro se in this action, ostensibly pursuant to 42 U.S.C. Section 28 1983. (See ECF No. 18, Compl.) Plaintiff did not prepay the $402 civil filing fee required 1 by 28 U.S.C. Section 1914 (a) at the time of filing and has instead filed two Motions to 2 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915 (a). (See ECF Nos. 3 29, 31.) 4 I. Motion to Proceed In Forma Pauperis 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $402.1 See 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 10 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 11 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 12 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 13 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 14 dismissed. See 28 U.S.C. § 1915 (b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 15 Cir. 2002). 16 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly balance 22 in the account for the past six months, whichever is greater, unless the prisoner has no 23 assets. See 28 U.S.C. § 1915 (b)(1); 28 U.S.C. § 1915 (b)(4). The institution having custody [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does [28] 1 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 2 month’s income, in any month in which his account exceeds $10, and forwards those 3 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2); Bruce, [4] 136 S. Ct. at 629 . 5 As mentioned, Plaintiff has filed two IFP Motions. (See ECF Nos. 29, 31.) The first 6 Motion attaches uncertified trust account statements from the relevant period, the six7 month period immediately preceding the filing of the Complaint. (See ECF No. 29, at 48 5.) The second Motion includes certified trust account statements, but for the six months 9 immediately preceding February 2, 2021—approximately a month after Plaintiff filed the 10 Complaint. (See ECF No. 31, 7-8.) Together, the two sets of trust account statements show 11 that Plaintiff carried an average monthly balance of $24.85 and had $309.17 in average 12 monthly deposits to his trust account for the six months immediately preceding filing the 13 Complaint, and that Plaintiff had an available balance of $1200.00 at the time of filing. 14 (See ECF No. 29, at 4-5; ECF No. 31, at 7-8.) 15 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 31), 16 DENIES his other Motion to Proceed IFP (ECF No. 29) as moot, and assesses an initial 17 partial filing fee of $61.83 pursuant to 28 U.S.C. Section 1915 (b)(1)(A). The Court directs 18 the Secretary of the CDCR, or her designee, to collect this initial filing fee only if sufficient 19 funds are available in Plaintiff’s account at the time this Order is executed. See 28 U.S.C. 20 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 21 civil action or appealing a civil action or criminal judgment for the reason that the prisoner 22 has no assets and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. 23 Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. Section 1915 (b)(4) acts as a 24 “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to 25 pay . . . due to the lack of funds available to him when payment is ordered.”). The Court 26 further directs the Secretary of the CDCR, or her designee, to collect the remaining balance 27 of the filing fees required by 28 U.S.C. Section 1914 and to forward it to the Clerk of the 28 /// 1 Court pursuant to the installment payment provisions set forth in 28 U.S.C. Section 2 1915(b)(1). 3 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915 (e)(2) and Section 4 1915A(b) 5 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre6 answer screening pursuant to 28 U.S.C. Section 1915 (e)(2) and Section 1915A(b). Under 7 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion 8 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 9 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 10 (discussing 28 U.S.C. Section 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 11 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to 12 ensure that the targets of frivolous or malicious suits need not bear the expense of 13 responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler 14 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 15 In addition to reviewing prisoner’s IFP complaints under 28 U.S.C. Section 16 1915(e)(2) and Section 1915A(b), the Court must also determine sua sponte whether it has 17 subject-matter jurisdiction over Plaintiff’s case. See Valdez v. Allstate Ins. Co., 372 F.3d 18 1115, 1116 (9th Cir. 2004); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at 19 any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 20 Plaintiff’s Complaint is hard to understand. As best as the Court can determine, 21 Plaintiff believes he is a “sovereign citizen.” (See Compl. at 2-3 (describing Plaintiff as a 22 “Flesh and Blood man A living Soul . . . Standing under a Private Declaration of 23 independence with private Amendments of Law, And Flag and Constitution . . . who is Set 24 Apart From The United States . . . .” (errors in original)).) “Adherents of such claims or 25 defenses ‘believe that they are not subject to governmental authority and employ various 26 tactics in an attempt to, among other things, avoid paying taxes, extinguish debts, and derail 27 criminal proceedings.’” United States v. Alexio, Cr. No. 13-01017-JMS, 2015 WL 28 4069160, at *2 (D. Haw. July 2, 2015) (quoting Gravatt v. United States, 100 Fed. Cl. 279 , 1 282 (2011)). 2 In this case, Plaintiff is suing two San Diego County Superior Court Judges, David 3 M. Gill and Aaron M. Katz, and the San Diego County District Attorney’s Office. (See 4 Compl. at 2.) Plaintiff appears to be challenging the Superior Court’s denial of a petition 5 for writ of habeas corpus, but the factual and legal basis for this challenge is unclear at 6 best. Among other things, Plaintiff’s Complaint cites Federal Rule of Civil Procedure 7 60(b), the Uniform Commercial Code, the Supplemental Rules for Admiralty or Maritime 8 Claims and Asset Forfeiture Actions, the Dred Scott decision, and a 1933 Congressional 9 Resolution that allegedly suspended the gold standard. (See, e.g., id. at 10, 16-17.) 10 Whatever the basis for Plaintiff suit is, he seeks billions of dollars in damages for alleged 11 “High Crimes and Misdemeanors in A Single Count of Conspiracy” and “unlawful 12 incarceration.” (See id. at 5.) Plaintiff has also filed more than a dozen “truth affidavits” 13 seemingly denying the existence or authority of the United States Government and various 14 arms of the state or federal governments, asserting rights in the alleged bankruptcy of the 15 United States, and purporting to revoke certain contracts, among other things. (See, e.g., 16 ECF No. 1, at 1-2; ECF No. 26, at 1-2; ECF No. 32, at 1.) 17 Although Plaintiff may wish to file a civil rights action or some other type of action 18 over which federal courts have jurisdiction, his current Complaint fails to invoke federal 19 subject-matter jurisdiction under 28 U.S.C. Section 1343 (a)(3), which creates federal 20 jurisdiction over certain civil rights claims, 28 U.S.C. Section 1331 , which creates federal 21 jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United 22 States,” or any other source of federal jurisdiction. (See generally Compl.) Despite 23 Plaintiff’s citations to certain federal authorities in his Complaint, none of these authorities 24 appear to be related to the claim Plaintiff seemingly asserts, namely that the Superior Court 25 should have granted his habeas petition and that he is entitled to damages as a result, nor 26 do these citations allege the existence of federal subject-matter jurisdiction. Federal district 27 courts generally do not have subject-matter jurisdiction to review errors allegedly 28 committed by state courts. See D.C. Ct. App. v. Feldman, 460 U.S. 462, 482 (1983); Rooker 1 v. Fidelity Tr. Co., 263 U.S. 413, 416 (1923); see also Doe & Assocs. Law Offices v. 2 Napolitano, 252 F.3d 1026 , 1030 (9th Cir. 2000) (explaining that because district courts 3 do not hear direct appeals from state court decisions, they “must decline jurisdiction 4 whenever they are in essence being called upon to review the state court decision.”). As a 5 result, Plaintiff’s Complaint is dismissed for lack of subject-matter jurisdiction pursuant to 6 Federal Rule of Civil Procedure 12(h)(3). See Watson v. Chessman, 362 F. Supp. 2d 1190 , 7 1194 (S.D. Cal. 2005) (“The court will not . . . infer allegations supporting federal 8 jurisdiction; federal subject matter [jurisdiction] must always be affirmatively alleged.” 9 (citations omitted)); see also Fed. R. Civ. P. 8(a)(1) (explaining that a pleading stating a 10 claim for relief “must contain . . . a short and plain statement of the grounds for the court’s 11 jurisdiction . . . .”). 12 Even if Plaintiff’s Complaint invoked the Court’s jurisdiction, however, it would 13 nevertheless fail to state any discernable claim for relief that is “‘plausible on its face.’” 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 15 544, 570 (2007)). For that reason, the Complaint would be subject to dismissal under 28 16 U.S.C. Section 1915 (e)(2)(B)(ii) and Section 1915A(b). If Plaintiff wishes to pursue a civil 17 rights claim pursuant to 42 U.S.C. Section 1983 , he must allege facts sufficient to show 18 that: (1) a right secured by the Constitution or laws of the United States was violated; and 19 (2) the alleged violation was committed by a person acting under color of state law. See 20 Campbell v. Wash. Dep’t of Soc. Servs., 671 F.3d 837 , 842 n.5 (9th Cir. 2011). 21 Furthermore, judges like Defendants Gill and Katz are immune from suits for damages 22 under Section 1983 based on judicial acts like ruling on Plaintiff’s state petition for writ of 23 habeas corpus and related motions. See, e.g., Forrester v. White, 484 U.S. 219 , 227-29 24 (1988). This is true “even when such [judicial] acts are in excess of their jurisdiction, and 25 are alleged to have been done maliciously or corruptly.” See Stump v. Sparkman, 435 U.S. 26 349, 356 (1978) (internal quotation marks and citation omitted). Finally, to the extent 27 Plaintiff is seeking to recover damages for allegedly unlawful conviction and/or 28 imprisonment, he must allege “that the conviction or sentence has been reversed on direct 1 appeal, expunged by executive order, declared invalid by a state tribunal authorized to 2 make such determination, or called into question by a federal court’s issuance of a writ of 3 habeas corpus.” See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). If Plaintiff wishes 4 to challenge the fact or duration of his continued confinement, rather than his conditions 5 of confinement, the proper vehicle for that challenge is a petition for writ of habeas corpus 6 under 28 U.S.C. Section 2254 after he has exhausted his state remedies, not a civil rights 7 action pursuant to Section 1983. See Preiser v. Rodriguez, 411 U.S. 475, 498-500 (1973). 8 In light of Plaintiff’s pro se status, the Court grants him leave to amend his 9 pleading to attempt to allege both subject-matter jurisdiction and to state a claim upon 10 which relief may be granted, if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 11 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to 12 amend [pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii)] unless ‘it is absolutely clear that the 13 deficiencies in the complaint could not be cured by amendment.’” (quoting Akhtar v. 14 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 15 III. Conclusion and Orders 16 Good cause appearing, the Court: 17 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 18 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from 19 Plaintiff’s prison trust account the initial filing fee assessed in this Order, and shall forward 20 the remainder of the $350 filing fee owed by collecting monthly payments from Plaintiff’s 21 account in an amount equal to twenty percent (20%) of the preceding month’s income and 22 forwarding those payments to the Clerk of the Court each time the amount in the account 23 exceeds $10 pursuant to 28 U.S.C. Section 1915 (b)(2). ALL PAYMENTS SHALL BE 24 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 25 ACTION. 26 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 27 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 28 942883, Sacramento, California 94283-0001. 1 4. DISMISSES Plaintiff's Complaint for lack of subject matter jurisdiction 2 || pursuant to Federal Rule of Civil Procedure 12(h)(3) and for failing to state a claim upon 3 || which relief may be granted pursuant to 28 U.S.C. Section 1915 (e)(2)(B)(ii) and Section 4 || 1915A(b)(1). 5 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 6 || which to file an Amended Complaint which cures all the deficiencies of pleading noted 7 ||above. Plaintiff's Amended Complaint must be complete by itself without reference to his 8 |/original pleading. Defendants not named and any claim not re-alleged in his Amended 9 ||Complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, 10 || Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 11 || pleading supersedes the original.”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 12 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 13 ||amended pleading may be “considered waived if not repled.”). 14 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 15 || will enter a final Order dismissing this civil action based on the Court’s lack of subject16 || matter jurisdiction, Plaintiff's failure to state a claim upon which relief can be granted 17 pursuant to 28 U.S.C. Sections 1915 (e)(2)(B)Gi) and 1915A(b)(1), and his failure to 18 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 19 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 20 fix his complaint, a district court may convert the dismissal of the complaint into 21 || dismissal of the entire action.’’). 22 IT IS SO ORDERED. 23 Dated: March 17, 2021 € ZL [24] Hon. Cathy Ann Bencivengo 25 United States District Judge [28] 8 oe