(PS)Young v. Burlingham

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 DANIEL CHRISTOPHER YOUNG, No. 2:22–cv–0590–JAM-CKD PS

12 Plaintiff,

13 v. ORDER & FINDINGS AND

RECOMMENDATIONS TO DISMISS SUA

14 STEVEN RICHARD BURLINGHAM, et SPONTE

al.,

15 (ECF Nos. 1, 5, 6, 8, 12)

Defendants.

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18 On April 4, 2022, plaintiff filed a fee-paid complaint initiating this action against twelve

19 defendants involved in California state probate court proceedings connected with the

20 conservatorship of plaintiff’s mother.1 (ECF No. 1.) Because the complaint failed to establish

21 this court’s subject matter jurisdiction and appeared to be barred by a previous case of plaintiff’s,

22 the court on May 4, 2022 issued an order for plaintiff to show cause within 14 days why the case

23 should not be dismissed. (ECF No 4.)

24 On May 16, 2022, the show cause order was returned to the court as undeliverable;

25 however, plaintiff continues to file motions and other documents listing the same street address

26 listed as his address of record for this case. (See, e.g., ECF Nos. 6, 7.) Another filing states that

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1 Because plaintiff is self-represented, all pre-trial proceedings are referred to the undersigned

28 magistrate judge pursuant to 28 U.S.C. § 636(b)(1) and E.D. Cal. Local Rule 302(c)(21).

1 plaintiff is living out of his car. (ECF No. 5 at 1.) It is unclear whether plaintiff has received the

2 May 4th show cause order and whether he intends any of his numerous filings since its issuance

3 to serve as a response to it.2 Plaintiff’s possible housing instability, however unfortunate, does

4 not relieve him of his duty as a self-represented prosecuting party to maintain a current address

5 for receipt of the court’s orders.

6 Presented with no showing of good cause, the undersigned recommends that this case be

7 dismissed. The various motions and filings received since the May 4th show cause order confirm

8 that the court lacks subject matter jurisdiction over this suit.

9 BACKGROUND

10 None of the defendants have yet appeared or responded to the complaint, and the May 4th

11 show cause order instructed that the defendants were not required to respond to the complaint

12 until the show cause order was deemed satisfied. (ECF No. 4 at 7.) However, courts have “an

13 independent obligation to determine whether subject-matter jurisdiction exists, even when no

14 party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Pursuant to Rule 12(h)(3) of

15 the Federal Rules of Civil Procedure, “[i]f the court determines at any time that it lacks subject-

16 matter jurisdiction, the court must dismiss the action.”

17 Plaintiff has repeatedly filed suit in this federal court against the same individuals for

18 fraud and corruption that allegedly took place in probate proceedings in Sacramento County

19 Superior Court connected with the conservatorship of plaintiff’s mother. (See Young et al. v.

20 Burlingham et al., No. 2:21-cv-00537-TLN-KJN; Young v. Burlingham et al., No. 2:21-cv-

21 01660-KJM-AC; Young v. Burlingham et al., No. 2:22-cv-00053-TLN-CKD.) In each of those

22 suits, plaintiff was advised of issues with establishing the court’s subject matter jurisdiction. In

23 addition, Case No. 2:21-cv-00537 (hereafter “the 537 Action”) was involuntarily dismissed with

24 prejudice under Rule 41(b) for failure to comply with court orders by failing to oppose the

25 defendants’ motions to dismiss. (No. 2:21-cv-00537, ECF Nos. 15, 18.)

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27 2 Although the document filed at ECF No. 7 was docketed as a Reply to the Order to Show Cause,

that filing does not describe itself as such, nor does it expressly refer to the May 4th show cause

28 order.

1 Given this background, the court ordered plaintiff to show cause (1) why the court has

2 subject matter jurisdiction, and (2) why this suit is not barred by the “with prejudice” dismissal of

3 plaintiff’s substantively identical prior suit.

4 DISCUSSION

5 The undersigned now concludes that (1) the court lacks subject matter jurisdiction for at

6 least two reasons, and (2) this action is barred by the doctrine of res judicata.

7 1. Lack of Subject Matter Jurisdiction

8 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of

9 Am., 511 U.S. 375, 377 (1994). A federal district court generally has jurisdiction over a civil

10 action when (1) a federal question is presented in an action “arising under the Constitution, laws,

11 or treaties of the United States” or (2) there is complete diversity of citizenship between the

12 parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). A

13 complaint that fails to establish either type of jurisdictional basis must be dismissed. In addition,

14 various judicial doctrines require dismissal for lack of jurisdiction even when federal question or

15 diversity jurisdiction is present on the face of the complaint.

16 In this case, dismissal is required for both reasons.

17 1. No Diversity or Federal Question Jurisdiction

18 Plaintiff’s complaint does not assert “diversity jurisdiction,” and for good reason, because

19 it appears that plaintiff and all twelve defendants are citizens of California. (ECF No. 1 at 2, 5-7

20 (listing California addresses).) See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,

21 553 (2005) (for § 1332(a), complete diversity requires that each plaintiff must be a citizen of a

22 different state from the defendants).

23 Instead, plaintiff asserts “federal question” jurisdiction based on three grounds. First, the

24 complaint lists “(Fraud Upon the Court) as set forth in (Cox v. Burke) 706 So. 2d 43 47 (Fla. 5th

25 DCA 1998).” (ECF No. 1 at 1, 4.) As made clear by plaintiff’s subsequent filings, plaintiff’s

26 entire theory for this suit is that the California Superior Court wrongly entered various rulings

27 against him in the conservatorship proceedings, based on allegedly fraudulent conduct by

28 opposing parties and their counsel. “Fraud on the court” is not a federal cause of action, and Cox

1 v. Burke is a Florida state court case that has no bearing on federal jurisdiction. The cited portion

2 of that case dealt with the state court’s inherent authority to dismiss a claim before it if a party or

3 their counsel is acting in a fraudulent manner. Id. at 46-47.

4 Second, the complaint asserts jurisdiction under California Penal Code § 182(a), which

5 makes conspiracy a criminal state offense. (ECF No. 1 at 1, 4.) However, private citizens have

6 no authority to assert civil claims under the criminal code, either state or federal. See Allen v.

7 Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (no private right of action for

8 violation of criminal statutes).

9 Third, the complaint asserts jurisdiction based on “deprivation of rights under color of

10 law,” briefly referencing in the caption the Due Process and Equal Protection Clauses of the

11 Fourteenth Amendment. (ECF No. 1 at 1, 4.) The court understands plaintiff to be invoking

12 42 U.S.C. § 1983, which “creates a private right of action against individuals who, acting under

13 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263

14 F.3d 1070, 1074 (9th Cir. 2001). To state a claim under § 1983, a plaintiff must allege (1) that a

15 right secured by the Constitution or laws of the United States was violated, and (2) that the

16 alleged violation was committed by a person acting under color of state law. See West v. Atkins,

17 487 U.S. 42, 48 (1988).

18 Section 1983 would give the court jurisdiction if the complaint named any defendants who

19 were subject to suit thereunder. However, the complaint makes plain that 11 of the 12 defendants

20 are not “state actors” subject to suit under § 1983, and the only arguable state actor is immune

21 from this suit. All of the defendants besides Court Investigator Robin Pearl are private persons

22 involved in a personal capacity in the conservatorship/probate proceedings at issue: plaintiff’s

23 brother, the court-appointed conservator/fiduciary, and the numerous attorneys and legal staff

24 representing the probate parties.3

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3 Plaintiff provides an address for defendant attorney Olena Likhachova that indicates she works

27 for the California Department of Justice. However, the pleadings and attachments make clear that

Likhachova is named in connection with her representation of plaintiff’s brother while she was in

28 private practice. (ECF No. 1 at 41, 44, 50.)

1 Conduct by private individuals or entities is generally not actionable under § 1983. See

2 Gomez v. Toledo, 446 U.S. 635, 640 (1980) (a private individual generally does not act under

3 color of state law). Conduct by private individuals or entities is only actionable under § 1983 if

4 there is “such a close nexus between the State and the challenged action that seemingly private

5 behavior may be fairly treated as that of the State itself.” Brentwood Academy v. Tennessee

6 Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (cleaned up). In alleging various and

7 sundry acts of fraud and conspiracy, plaintiff identifies nothing linking these defendants to the

8 State itself. That these acts took place in connection with a state court proceeding does not satisfy

9 § 1983’s “state action” requirement.

10 Defendant Robin Pearl is the only defendant arguably sued in connection with actions

11 taken under color of state law. The complaint identifies Ms. Pearl as a “Court Investigator” and,

12 as best the court can tell, she is sued here for two actions taken in the probate case:

13 (1) “produc[ing]” a “fraudulent investigator report” of elder abuse, which led to plaintiff being

14 removed from the home he previously shared with his mother (ECF No. 1 at 11, 23), and

15 (2) creating an “investigative report” recommending that plaintiff’s mother should be represented

16 by court-appointed counsel to avoid the conflict of interest with her being represented by the

17 same private attorney who was representing plaintiff (id. at 27).

18 Both of these actions are the type taken in the normal course of a Probate Court

19 Investigator performing her official duties. See Cal. Probate Code § 1826 (establishing court

20 investigator duties including reviewing allegations of the petition, interviewing petitioners and

21 relatives, and reporting to the Superior Court in writing regarding various matters, such as

22 representation and appointment of legal counsel). Given that these are integral parts of the

23 judicial process for state court probate proceedings, Ms. Pearl is immune from suit for these

24 actions under the doctrine of quasi-judicial immunity. See Moore v. Brewster, 96 F.3d 1240,

25 1244 (9th Cir. 1996) (“The concern for the integrity of the judicial process that underlies the

26 absolute immunity of judges is reflected in the extension of absolute immunity to certain others

27 who perform functions closely associated with the judicial process.”); In re Castillo, 297 F.3d

28 940, 947-49 (9th Cir. 2002) (overruled in part on other grounds) (noting that quasi-judicial

1 immunity extends “to court clerks and other nonjudicial officers for purely administrative acts—

2 acts which taken out of context would appear ministerial, but when viewed in context are actually

3 a part of the judicial function.”). Thus, even assuming the complaint’s minimal allegations

4 sufficiently stated a § 1983 claim against Ms. Pearl, she is immune from suit.

5 2. Rooker-Feldman Bar

6 Even if the complaint could be construed to state a § 1983 claim, dismissal is nevertheless

7 required under the Rooker-Feldman doctrine.4 “[T]he Rooker-Feldman doctrine bars suits

8 ‘brought by state-court losers complaining of injuries caused by state-court judgments rendered

9 before the district court proceedings commenced and inviting district court review and rejection

10 of those judgments.’” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010) (quoting Exxon

11 Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S. 280, 284 (2005)). The doctrine applies when

12 “the action contains a forbidden de facto appeal of a state court decision.” Bell v. City of Boise,

13 709 F.3d 890, 897 (9th Cir. 2013). “A de facto appeal exists when ‘a federal plaintiff [1] asserts

14 as a legal wrong an allegedly erroneous decision by a state court, and [2] seeks relief from a state

15 court judgment based on that decision.’” Id. (quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir.

16 2003)). If the federal action constitutes a de facto appeal, district courts are barred from deciding

17 not only the issues decided by the state court, but also any other issues that are “inextricably

18 intertwined” with an issue resolved by the state court’s decision. Kougasian v. TMSL, Inc., 359

19 F.3d 1136, 1142 (9th Cir. 2004) (citing Noel, 341 F.3d at 1158).

20 Plaintiff’s complaint and his many subsequent motions and filings demonstrate that both

21 elements of a de facto appeal are present in this case.5 First, plaintiff’s entire reason for bringing

22 this suit is that over the course of the conservatorship proceedings, the Superior Court made

23 several erroneous decisions: (1) ordering him to vacate the house he shared with his mother,

24 based on allegation of financial elder abuse, (2) issuing a restraining order against him, and

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4 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of

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Appeals v. Feldman, 460 U.S. 462 (1983).

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5 In addition, the contested Superior Court rulings were entered between 2018 and 2021, before

28 this federal action was filed in April 2022.

1 (3) entering a judgment of $2,109,000 against him, based on a finding that he misappropriated

2 equity in certain real property. (See ECF No. 1 at 12, 23, 72-73; ECF Nos. 6 at 5, 7 at 1, and 8

3 at 2.) Plaintiff asserts that these rulings were wrongly decided based on fraudulent statements and

4 evidence presented to the court by other parties and their counsel. (ECF Nos. 6 at 1, 7 at 1.)

5 Thus, these court-imposed injuries were caused by the Superior Court’s alleged legal errors in

6 reviewing the evidence submitted in the conservatorship proceedings. See Noel, 341 F.3d at 1164

7 (Rooker-Feldman bar applies when the “federal plaintiff [is] complaining of legal injury caused

8 by a state court judgment because of a legal error committed by the state court”).

9 Although plaintiff’s complaint asserts widespread fraud in the state court proceedings,

10 none of the alleged types of fraud contributing to the Superior Court’s orders qualifies as

11 “extrinsic” fraud that would avoid the Rooker-Feldman bar. See Benavidez v. Cty. of San Diego,

12 993 F.3d 1134, 1143 (9th Cir. 2021) (“[W]here a party alleges extrinsic fraud by an adverse party

13 in procuring a state court judgment, the Rooker-Feldman doctrine does not apply, because such a

14 claim does not challenge the state court decision directly.”). “Extrinsic fraud is conduct which

15 prevents a party from presenting his claim in court.” Kougasian, 359 F.3d at 1140 (quotation

16 omitted). To qualify as extrinsic, the alleged fraud must be “collateral to the matters involved in

17 the action.” Green v. Ancora-Citronelle Corp., 577 F.2d 1380, 1384 (9th Cir. 1978). By contrast,

18 “intrinsic” fraud “goes to the very heart of the issues contested in the state court action.” Id.

19 All of the “exhibits” plaintiff includes with the complaint and continues to file separately

20 are offered to contradict the Superior Court’s finding that plaintiff improperly withdrew equity

21 from his mother’s real property. This goes to the core of the dispute in the conservatorship

22 proceedings. Cf. Green, 577 F.2d at 1384. Moreover, none of the alleged acts of fraud and

23 “corruption” prevented plaintiff from raising his fraud-related claims or objections to the Superior

24 Court. Cf. Kougasian, 359 F.3d at 1140; Lewis v. L.A. Metro. Transit Auth., No. CV-19-1456-

25 PSG-JPRx, 2019 WL 6448944, at *3-4 (C.D. Cal. Sept. 10, 2019) (because the allegedly

26 fraudulent actions “would have merely weakened Plaintiff’s case, rather than prevented him from

27 getting into court at all,” plaintiff at best alleged intrinsic fraud, so Rooker-Feldman bar applied

28 (cleaned up)).

1 Second, as clarified by the post-complaint filings, this lawsuit seeks to set aside the above-

2 mentioned Superior Court rulings. See Kougasian, 359 F.3d at 1140 (“Rooker-Feldman . . .

3 applies only when the federal plaintiff both [1] asserts as her injury legal error or errors by the

4 state court and [2] seeks as her remedy relief from the state court judgment.”); Cooper v. Ramos,

5 704 F.3d 772, 777-78 (9th Cir. 2012) (“To determine whether an action functions as a de facto

6 appeal, [courts] pay close attention to the relief sought by the federal-court plaintiff.” (quotation

7 omitted)).

8 The complaint itself is unclear as to what relief plaintiff seeks—other than holding every

9 defendant “guilty” of fraud. Plaintiff’s several subsequent motions and filings, however,

10 repeatedly and explicitly request relief from the Superior Court’s various rulings. (See ECF

11 Nos. 5, 6, 8, motions for “Relief From a Judgment Under Federal Rule 60(b)(6)”; ECF No. 6 at 1,

12 stating “I would like immediately the (Stay Away) Restraining order revoked,” which would void

13 all other judgments since produced; ECF No. 11 at 2, intent to have all judgments “vitiated” and

14 thereby return his ownership interest in properties; ECF No. 12 at 2, “requesting for a[n]

15 immediate release from the (Judgement)” of the Superior Court.) These express requests for

16 relief from the state court’s judgment easily satisfy the second element of a de facto appeal. See

17 Kougasian, 359 F.3d at 1140. For plaintiff’s benefit, the court notes that Federal Rule 60(b)(6)

18 only permits a court to grant a litigant relief from judgment previously entered by the same court.

19 It does not provide a method of challenging another court’s judgment.

20 Finally, plaintiff’s complaint raises no other claims beyond those contesting the Superior

21 Court’s rulings described above. Thus, the court need not analyze whether any claims are

22 “inextricably intertwined” with an issue resolved by the Superior Court. See Kougasian, 359 F.3d

23 at 1142 (“The inextricably intertwined test . . . allows courts to dismiss claims closely related to

24 claims that are themselves barred under Rooker-Feldman.”).

25 Accordingly, this suit is barred by the Rooker-Feldman doctrine and must be dismissed

26 for that reason as well.

27 ////

28 ////

1 2. Res Judicata from the 537 Action

2 Finally, there is one more reason that this suit must be dismissed: res judicata. The

3 doctrine of res judicata, also known as claim preclusion, protects “litigants from the burden of

4 relitigating an identical issue” and promotes “judicial economy by preventing needless litigation.”

5 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Res judicata provides that “a final

6 judgment on the merits bars further claims by parties or their privies based on the same cause of

7 action.” Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). “The

8 elements necessary to establish res judicata are: (1) an identity of claims, (2) a final judgment on

9 the merits, and (3) privity between parties.” Id. at 1052 (internal quotation omitted).6

10 Comparing the March 2021 complaint filed in the 537 Action and the complaint filed in

11 this case, it appears that all three elements are satisfied so as to bar plaintiff from proceeding with

12 this litigation. As to the first and second elements, both complaints assert identical purported

13 causes of action under the state penal code and the Fourteenth Amendment, regarding the same

14 allegedly fraudulent conduct and conspiracies against plaintiff in the probate proceedings; and

15 both name the exact same defendants (with the 537 Action also naming a thirteenth additional

16 defendant not named here). Indeed, plaintiff confirms in the present complaint that he is “refiling

17 [his] case against all of the (Defendant’s) from my previous filing.” (ECF No. 1 at 10 (sic).)

18 As to the second element, the 537 Action resulted in a final judgment on the merits

19 because it was dismissed “with prejudice” under Rule 41(b) as a sanction for not complying with

20 court orders and failing to prosecute the case. (No. 2:21-cv-00537, ECF No. 15, recommending

21 dismissal sanction; id., ECF No. 18 at 2, adopting F&Rs and dismissing “with prejudice” under

22 Rule 41(b).) Several of the defendants moved to dismiss the 537 Action, and despite being given

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24 6 “[I]f a court is on notice that it has previously decided the issue presented, the court may dismiss

the action sua sponte, even though the [preclusion] defense has not been raised,” Arizona v.

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California, 530 U.S. 392, 416 (2000), provided that the parties have an opportunity to be heard

prior to dismissal. Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1054-55 (9th Cir. 2005).

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“As a general matter, a court may, sua sponte, dismiss a case on preclusion grounds ‘where the

27 records of that court show that a previous action covering the same subject matter and parties had

been dismissed.’” Id. (quoting Evarts v. W. Metal Finishing Co., 253 F.2d 637, 639 n.1 (9th Cir.

28 1958)).

1 multiple opportunities and a directive to respond to the motion, plaintiff failed to file any

2 opposition or notice of non-opposition. (Id., ECF Nos. 8, 9, 11.) After notifying plaintiff that

3 the case would be dismissed with prejudice as a sanction if plaintiff did not comply with the

4 court’s rules and orders, the magistrate judge recommended dismissal with prejudice under

5 Rule 41(b) based on his analysis of the Ferdik factors.7 (Id., ECF Nos. 11 at 2-3, 15 at 2-4.) The

6 district judge adopted that recommendation, and final judgment dismissing the action “with

7 prejudice” was entered on August 31, 2021 (id., ECF Nos. 18, 19)—many months before plaintiff

8 filed the present complaint on April 4, 2022.

9 The Supreme Court has held that a dismissal with prejudice under Rule 41(b) bars a

10 plaintiff from refiling the same claim in the same court. Semtek Int’l Inc. v. Lockheed Martin

11 Corp., 531 U.S. 497, 505–06 (2001); see Costello v. United States, 365 U.S. 265, 287 (1961)

12 (Rule 41(b) dismissals operate as adjudications on the merits where “the defendant has been put

13 to the trouble of preparing his defense”). By the terms of Rule 41(b), an involuntary dismissal

14 operates as an adjudication on the merits unless the dismissal order states otherwise, or if the

15 dismissal was for lack of jurisdiction, improper venue, or failure to join a necessary party. Fed.

16 R. Civ. P. 41(b). None of these exceptions applies here where the 537 Action was explicitly

17 dismissed “with prejudice” as a sanction for failure to follow court rules and failure to prosecute,

18 and the dismissal was ordered after weighing the Ferdik prejudice factors. C.f. Gibson v. Cty. of

19 Orange, No. 8:20-CV-01232-JWH-DFMx, 2021 WL 860000, at *7 (C.D. Cal. Mar. 8, 2021)

20 (finding prior court did not intend its dismissal with prejudice to have claim-preclusive effect

21 under Rule 41(b) because court did not conduct the required multi-factor prejudice analysis in its

22 dismissal order).

23 Thus, plaintiff’s claims against all twelve defendants are barred by the doctrine of res

24 judicata because they were previously adjudicated on the merits in the 537 Action.

25 ////

26 ////

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28 7 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

1 RECOMMENDATION

2 For all of these reasons, it is HEREBY RECOMMENDED that:

3 1. This case be DISMISSED for lack of subject matter jurisdiction and as barred by res

4 judicata;

5 2. Plaintiffs miscellaneous motions (ECF Nos. 5, 6, 8, 12) be DENIED both as moot and as

6 procedurally improper; and

7 3. The Clerk of Court be instructed to close this case.

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

9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

10 || days after being served with these findings and recommendations, any party may file written

11 || objections with the court and serve a copy on all parties. Such a document should be captioned

12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

13 || shall be served on all parties and filed with the court within seven (7) days after service of the

14 || objections. The parties are advised that failure to file objections within the specified time may

15 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

16 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

17

18 ORDER

19 Because of the court’s findings and recommendations, it is HEREBY ORDERED that:

20 1. The Initial Scheduling Conference set for September 7, 2022 is VACATED; and

21 2. All pleading, discovery, and motion practice in this action are STAYED pending

22 resolution of these findings and recommendations. Other than objections to the findings

23 and recommendations or non-frivolous motions for emergency relief, the court will not

24 entertain or respond to any pleadings or motions until the findings and recommendations

25 are resolved.

26 | Dated: June 28, 2022 □□ / dp ai

7 CAROLYNK. DELANEY

28 |) 19, youn.0590 UNITED STATES MAGISTRATE JUDGE

1]