(PS) Van Den Heuvel v. Musso

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JEAN MARC VAN den HEUVEL, No. 2:21-cv-01659 TLN AC (PS)

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 RODGER MUSSO,

15 Defendant.

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17 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

18 undersigned by E.D. Cal. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma

19 pauperis (“IFP”), and has submitted the affidavit required by that statute. See 28 U.S.C.

20 § 1915(a)(1). The motion to proceed IFP (ECF No. 2) will therefore be granted.

21 I. Screening

22 The federal IFP statute requires federal courts to dismiss a case if the action is legally

23 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). A

25 claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v.

26 Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the court will

27 (1) accept as true all of the factual allegations contained in the complaint, unless they are clearly

28 baseless or fanciful, (2) construe those allegations in the light most favorable to the plaintiff, and

1 (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von Saher v. Norton

2 Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S.

3 1037 (2011).

4 The court applies the same rules of construction in determining whether the complaint

5 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court

6 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must

7 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a

8 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520

9 (1972). However, the court need not accept as true conclusory allegations, unreasonable

10 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

11 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice

12 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal,

13 556 U.S. 662, 678 (2009).

14 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to

15 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

16 facial plausibility when the plaintiff pleads factual content that allows the court to draw the

17 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

18 678.  A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity

19 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v.

20 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in

21 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc).

22 Further, it for a case to proceed in federal court, there must be federal jurisdiction.

23 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

24 511 U.S. 375, 377, (1994). In 28 U.S.C. §§ 1331 and 1332(a), “Congress granted federal courts

25 jurisdiction over two general types of cases: cases that “aris[e] under” federal law, § 1331, and

26 cases in which the amount in controversy exceeds $ 75,000 and there is diversity of citizenship

27 among the parties, § 1332(a). These jurisdictional grants are known as “federal-question

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1 jurisdiction” and “diversity jurisdiction,” respectively. Home Depot U. S. A., Inc. v. Jackson,

2 139 S. Ct. 1743, 1746 (2019), reh’g denied, No. 17-1471, 2019 WL 3538074 (U.S. Aug. 5, 2019).

3 A case “arises under” federal law either where federal law creates the cause of action or

4 “where the vindication of a right under state law necessarily turn[s] on some construction of

5 federal law.” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088–89 (9th Cir. 2002)

6 (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983)).

7 “[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded

8 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is

9 presented on the face of the plaintiff’s properly pleaded complaint.” Id. at 1089 (quoting Rivet v.

10 Regions Bank, 522 U.S. 470, 475 (1998)).

11 A. The Complaint

12 Plaintiff sues Rodger Musso, a retired dentist. ECF No. 1 at 2. Plaintiff checks “federal

13 question” on his form complaint as the basis for federal jurisdiction. Id. at 3. When asked to

14 provide the specific federal statutes, treatises, and/or provisions of the U.S. Constitution that are

15 at issue in this case, plaintiff lists “18 U.S.C § 287 – False, fictitious or fraudulent claims” with

16 three bullet-points underneath: “U.S. Code,” “Notes,” and “State Regulations.” Id. The

17 substance of plaintiff’s complaint is difficult to discern, but centers on the following facts:

18 plaintiff brought multiple cases against Rodger Musso in state court, where Mr. Musso was

19 represented by attorneys Mr. Caldwell and Mr. Bowman. Id. These proceedings involved the

20 attorneys making a motion for plaintiff to be declared a vexatious litigant in state court. Id. at 3,

21 10. It is unclear whether that motion was granted.

22 B. Analysis

23 This complaint must be dismissed because the court lacks jurisdiction to hear this case and

24 because it fails to state a claim upon which relief can be granted. The complaint expressly seeks

25 relief exclusively for violations of the criminal code. A citizen does not have authority to bring

26 criminal charges. “Criminal proceedings, unlike private civil proceedings, are public acts

27 initiated and controlled by the Executive Branch.” Clinton v. Jones, 520 U.S. 681, 718 (1997).

28 Accordingly, Title 18 of the United States Code does not establish any private right of action and

1 || cannot support a civil lawsuit. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)

2 || (criminal provisions provide no basis for civil liability). Accordingly, the complaint fails to

3 || establish jurisdiction and fails to state a claim upon which relief can be granted. Because

4 || jurisdiction is a threshold issue and the facts alleged make it clear that there is no basis for federal

5 || jurisdiction available, the complaint should be dismissed without leave to amend.

6 II. Conclusion

7 For the reasons stated above, the undersigned recommends that plaintiffs request to

8 | proceed in forma pauperis (ECF No. 2) be GRANTED but that the complaint (ECF No. 1) be

9 || DISMISSED with prejudice because it fails to state a claim upon which relief can be granted and

10 || because there is no federal jurisdiction to hear this case.

11 These findings and recommendations are submitted to the United States District Judge

12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days

13 || after being served with these findings and recommendations, plaintiff may file written objections

14 || with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document

15 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure

16 || to file objections within the specified time may waive the right to appeal the District Court’s

17 || order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153,

18 | 1156-57 (9th Cir. 1991).

19 | DATED: September 16, 2021.

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21 Chthwen— Clare

ALLISON CLAIRE

22 UNITED STATES MAGISTRATE JUDGE

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