Bar-Lev v. City of San Diego

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 Case No.: 23-cv-139-DMS-AHG [12] NAOMI BAR-LEV, ORDER (1) GRANTING 13 PLAINTIFF’S MOTION TO Plaintiff, PROCEED IN FORMA PAUPERIS; [14] v. (2) DISMISSING COMPLAINT FOR 15 FAILING TO STATE A CLAIM CITY OF SAN DIEGO, et al., UPON WHICH RELIEF CAN BE [16] Defendants. GRANTED PURSUANT TO 28 U.S.C. 17 § 1915(e)(2)(B)(ii); AND (3) DENYING AS MOOT PLAINTIFF’S MOTION [18] TO APPOINT COUNSEL. [19] 20 Plaintiff Naomi Bar-Lev submitted a Complaint (ECF No. 1) along with a request to 21 proceed in forma pauperis (“IFP”), (ECF No. 2), and a motion to appoint counsel. (ECF 22 No. 9.) For the following reasons, Plaintiff’s motion to proceed IFP is granted, Plaintiff’s 23 complaint is dismissed, and Plaintiff’s motion to appoint counsel is denied as moot. 24 A. Motion to Proceed IFP 25 Plaintiff’s application to proceed IFP indicates her only sources of income are $600 26 from self-employment and $281 from public assistance. (Id. at 1-2.) Plaintiff reports 27 having $650 in a checking account, a motor vehicle worth $600, and furniture and 28 inventory worth $40,000. (Id. at 2-3.) Plaintiff further states she is “owed” a home worth 1 $350,000 that is contested by a lien, and is likewise “owed” other real estate worth 2 $1,720,000. (Id. at 3.) It is unclear whether Plaintiff will ever obtain an ownership interest 3 in those properties. Plaintiff also states she is “filing BK [bankruptcy]” and has “not been 4 paying” her rent or home mortgage. The Court finds Plaintiff’s application and affidavit 5 are sufficient to show she is unable to pay the fees or post securities required to maintain 6 this action. See Civil Local Rule 3.2(a). Accordingly, Plaintiff’s motion to proceed IFP 7 pursuant to 28 U.S.C. § 1915 (a) is GRANTED. 8 B. Sua Sponte Screening Under 28 U.S.C. § 1915 (e)(2) 9 A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915 (a) is 10 subject to sua sponte dismissal by the court if it is frivolous, malicious, fails to state a claim 11 upon which relief may be granted, or seeks monetary relief from a defendant immune from 12 such relief. 28 U.S.C. § 1915 (e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th 13 Cir. 2001) (stating “the provisions of 28 U.S.C. §1915 (e)(2)(B) are not limited to 14 prisoners). “Section 1915(e) not only permits, but requires a district court to dismiss an in 15 forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122 , 1127 16 (9th Cir. 2000) (en banc); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 17 1998) (noting the “the language of § 1915(e)(2)(B)(ii) parallels the language of Federal 18 Rule of Civil Procedure 12(b)(6).”). 19 A complaint must have a “short and plain statement of the claim showing the pleader 20 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “give the defendant fair 21 notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. 22 Twombly, 550 U.S. 544, 545 (2007) (cleaned up). A complaint devoid of this is subject to 23 dismissal for failure to state a claim upon which relief can be granted. Id. at 545-55 . 24 Plaintiff brings this action against at least fifty-nine (59) Defendants who are law 25 enforcement officers, dispatchers, lawyers, a state judge and businesses, including AT&T, 26 Google, Apple, Geek Squad, Chase Bank, GoDaddy and others. (See Compl. at pp. 1, 16.) 27 Plaintiff allegations are disconnected and difficult to discern as she asserts multiple claims 28 based on Defendants acting “as a gang” and “picking on Jews, Asians, and Blacks and 1 those who do not help[,]” in an effort to “destroy [her] privacy” and “sabotage all attempts 2 at recovery and … through the court ha[s] made steps to silence [her] all together[.]” (Id. 3 at pp. 1-2.) Plaintiff alleges claims based on these and similar allegations under 18 U.S.C. 4 § 249(3) (hate crimes), 18 U.S.C. § 241 (conspiracy against rights), 18 U.S.C. § 242 5 (deprivation of rights under color of law), 42 U.S.C. § 3631 (fair housing rights violation), 6 and 42 U.S.C. § 14141 (law enforcement misconduct). (Id. ¶ 19.) Plaintiff also alleges 7 torts “of a conspiratorial nature,” invasion of privacy, false reports by Psychiatric 8 Emergency Response Team (PERT), and medical fraud. (Id. ¶¶ 17-18.) Plaintiff seeks 9 “punitive damages to exceed $400,000,000 million [sic] for the egregious nature of the 10 activities of these corporations, SDPD, and participating individuals.” (Id. ¶ 20.) 11 Additionally, Plaintiff seeks “an injunction to restore [her] privacy from Vivint, Google 12 with respect to products used, Microsoft, so that [she] can restore the privacy necessary for 13 a case.” (Id. ¶ 9.) 14 Plaintiff named San Diego Superior Court Judge Sharon Kalemkierian as a 15 defendant in this matter and attached as Exhibit 1 to her complaint an “Order on Request 16 to Keep Minor’s Information Confidential,” signed and dated by the judge on December 9, 17 2021. It is unclear what error Plaintiff assigns to Judge Kalemkierian’s handling of the 18 state court matter, but in any circumstance, judges “are granted absolute immunity for their 19 judicial actions in order to safeguard independent and principled judicial decision making.” 20 Meek v. Cty. of Riverside, 183 F.3d 962, 966 (9th Cir. 1999) (citing Forrester v. White, 484 21 U.S. 219 , 226–27 (1988)). As such, Judge Kalemkierian is immune from civil liability for 22 acts performed in her judicial capacity. Plaintiff’s claims against Judge Kalemkierian are 23 therefore dismissed without leave to amend. See Martinez v. United States, 838 Fed.App’x 24 662, 664 (9th Cir. 2020) (affirming district court dismissal without leave to amend because 25 lawsuit challenged judicial conduct covered by immunity). 26 Apart from the allegations regarding Judge Kalemkierian, Plaintiff alleges many 27 facts which purport to be the basis for her various causes of actions. It is impossible to 28 decipher from those allegations which alleged facts alleged correspond to which claim and 1 ||which Defendants. Defendants are not provided with fair of what Plaintiff's claims are, 2 the grounds upon which they rest. Plaintiff has failed to allege any plausible or 3 |}comprehensible claim for relief. Thus, the Complaint is dismissed in its entirety. 4 C. Conclusion and Order 5 For these reasons: 6 1. Plaintiff's Motion to Proceed IFP is GRANTED; 7 2. The Complaint is DISMISSED with prejudice as to claims against Judge 8 Sharon Kalemkierian for acts performed in her judicial capacity; 9 3. The Complaint is DISMISSED with leave to amend, as to all remaining 10 claims. Plaintiff may file an amended complaint within fourteen days of this 11 Order; and 12 4. Plaintiff's Motion to Appoint Counsel is DENIED as moot. 13 IT IS SO ORDERED. 14 || Dated: May 2, 2023 , Yn - □□□ 15 Hon. Dana M. Sabraw, Chief Judge 16 United States District Court