(PS) Van den Heuvel v. Costello

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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. 2:23–cv–253-KJN PS

12 Plaintiff, ORDER GRANTING IFP REQUEST AND

GRANTING LEAVE TO AMEND

13 v.

(ECF No. 2.)

14 MIA COSTELLO, et al.,

15 Defendants.

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17 Plaintiff Jean Marc Van den Heuvel, who is proceeding without counsel in this action,

18 requests leave to proceed in forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915.

19 Plaintiff’s affidavit makes the required showing, and so plaintiff’s request is granted.

20 However, the determination that a plaintiff may proceed without payment of fees does not

21 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any

22 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or

23 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal

24 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United

25 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004).

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1 This action was directly assigned to the undersigned pursuant to Appendix A sub. (m) of the

27 court’s Local Rules. Further, actions where a party proceeds without counsel are referred to a

magistrate judge pursuant to E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R.

28 Civ. P. 72.

1 Legal Standards

2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7

3 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is

4 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it

5 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31

6 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be

7 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).

8 i. Subject Matter Jurisdiction

9 The court must dismiss a case if, at any time, it determines that it lacks subject matter

10 jurisdiction. Rule 12(h)(3).2 A federal district court generally has original jurisdiction over a

11 civil action when: (1) a federal question is presented in an action “arising under the Constitution,

12 laws, or treaties of the United States” or (2) there is complete diversity of citizenship and the

13 amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). Under the well-

14 pleaded complaint rule, “federal jurisdiction exists only when a federal question is presented on

15 the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386,

16 392 (1987). If original subject matter jurisdiction is established, a court may exercise ancillary

17 jurisdiction over a state law claim so long as it is “so related to claims in the action within such

18 original jurisdiction.” See 28 U.S.C. § 1367.

19 ii. Complaint’s Failure to State a Claim

20 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which

21 relief can be granted.” Rule 12(b)(6). A complaint fails to state a claim if it either lacks a

22 cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix,

23 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a

24 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic

25 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

26 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action,

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28 2 Citation to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted.

1 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

2 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a

3 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff

4 pleads factual content that allows the court to draw the reasonable inference that the defendant is

5 liable for the misconduct alleged.” Id.

6 When considering whether a complaint states a claim upon which relief can be granted,

7 the court must accept the well-pleaded factual allegations as true, Erickson v. Pardus, 551 U.S.

8 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan

9 v. Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true

10 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,”

11 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v.

12 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).

13 iii. Amending a Complaint

14 A party is permitted to amend its pleading once if done within 21 days of serving its

15 original pleading, or 21 days after service of a responsive pleading or a motion under Rule 12 (b),

16 (e), or (f). Fed. R. Civ. P. 15(a)(1). Absent one of the two scenarios, a party may only amend its

17 pleading if it obtains the opposing party’s written consent or the court’s leave, which is freely

18 given if justice so requires. Fed. R. Civ. P. 15(a)(2). Although the court interprets Rule 15(a)(2)

19 with “extreme liberality,” a court may deny a party leave to amend if it “would prejudice the

20 opposing party, produce an undue delay in the litigation, or result in futility for lack of merit.”

21 See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990).

22 Analysis

23 The first issue before the court is which complaint is to be treated as the operative

24 complaint. On February 9, 2023, plaintiff filed his original complaint alleging ADA employment

25 discrimination. (ECF No. 1.) On April 7, 2023, plaintiff filed a First Amended Complaint

26 (“1AC”) on a form entitled “Complaint for a Civil Case Alleging Negligence.” (ECF No. 4.)

27 Because plaintiff had not served defendants in this action, the court treats the 1AC as the

28 operative complaint and disregards the original complaint. See Fed. R. Civ. P. 15 (a party may

1 amend its complaint once as a matter of right within 21 days after serving its complaint); CDK

2 Glob. LLC v. Brnovich, 16 F.4th 1266, 1274 (9th Cir. 2021) (noting that an amended complaint

3 supersedes an original complaint).

4 Despite the use of this form complaint, it is unclear what the basis for plaintiff’s claim is.

5 Plaintiff states he moved to the United States in 1965 after his mother died of heart failure, and he

6 claims to have “endured massive … injuries … [due to] persecutions, thefts, [and] robberies” by

7 unnamed “abusive natural street people.” (ECF No. 4 at 4.) Plaintiff mentions a murder,

8 language barriers, and “cold experiences” at a courthouse. (Id.) Some kind of incident occurred

9 on March 3, 2023, at the Placerville Courthouse. (Id. at 4.) However, plaintiff names as

10 defendants Mia Costello, an apartment manager, and C.B.M. Properties Managements, a

11 management company. (Id. at 2.) Plaintiff makes mention of the “A.D.A” on this Negligence

12 Form Complaint, which the court will presume to mean the Americans with Disabilities Act.

13 However, the court cannot decipher what, if anything, happened that could be logically linked to

14 a cognizable ADA claim aside from the fact that he claims to be a stroke survivor. (Id. at 1.) The

15 form complaint cites 28 U.S.C. § 1332 for diversity of citizenship jurisdiction. (Id. at 1.)

16 Plaintiff seeks one million dollars in damages. (Id. at 4.)

17 Construing this as an allegation of negligence, the court finds that it would not have

18 subject matter jurisdiction over any such standalone claim. To meet subject matter jurisdiction,

19 the court checks: (1) whether the case involves a federal question, or (2) if all plaintiffs are

20 diverse from all defendants and the amount in controversy exceeds $75,000. See 28 U.S.C.

21 §§ 1331, 1332(a). It appears plaintiff and all non-corporation defendants are residents of

22 California, and defendant “The CBM Group” 3 (the apartment management company) is

23 incorporated in the state of California. (ECF No. 4 at 1-2.) Thus there is no complete diversity

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3Plaintiff identified defendant property management company as “C.B.M. Properties

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Managements” in his complaint. After a cursory search, the court was able to locate a business,

“The CBM Group Inc.,” which is incorporated in the State of California and matches the address

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plaintiff wrote in the amended complaint of 1010 Racquet Club Dr. Auburn, California. See

27 (ECF No. 4 at 2.); California Secretary of State, https://bizfileonline.sos.ca.gov/search/business

(last visited April 12, 2023); see Fed. R. Civ. P. 201 (the court may take judicial notice of facts

28 found in sources whose accuracy cannot reasonably be questioned).

1 here for diversity jurisdiction purposes. See 28 U.S.C. § 1332(a) (both the amount in controversy

2 and the complete diversity requirements must be met for diversity jurisdiction); 28 U.S.C.

3 § 1332(c)(1) (a corporation is a citizen of the state where it is incorporated and its principal place

4 of business). Further, regarding federal question jurisdiction, plaintiff’s 1AC alleges negligence,

5 but negligence alone would not give rise to federal question jurisdiction. 28 U.S.C. § 1331

6 (providing that federal courts have original jurisdiction over all civil actions that “arise under” the

7 Constitution or laws of the United States); Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804,

8 808 (1986) (noting that most federal-question jurisdiction cases are those in which federal law

9 creates a cause of action); see also, e.g., K.C. v. Victor Valley Transit Auth., 2018 WL 6219787,

10 at *1 (C.D. Cal. Nov. 7, 2018) (finding lack of subject matter jurisdiction where plaintiff alleged

11 state law causes of action of negligence and negligent infliction of emotional distress). Thus, this

12 court has no subject matter jurisdiction over the claims alleged in plaintiff’s 1AC, which ends the

13 inquiry on this form complaint.

14 Leave to Amend

15 Despite the dismissal of the 1AC, and in light of plaintiff’s pro se status, the court cannot

16 say that it would be wholly futile to allow plaintiff to amend his complaint. The court notes that

17 in the original complaint, it appears plaintiff was attempting to assert a claim under the ADA,

18 though for employment discrimination. Despite this fact, it does not appear plaintiff was

19 employed by defendants. Nunes v. Wal–Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999)

20 (stating that to establish a prima facie case of employment discrimination under the ADA, the

21 complaint must allege: (1) plaintiff has a disability within the meaning of the ADA; (2) plaintiff

22 is capable of performing the essential functions of the job; and (3) the employer terminated

23 plaintiff due to his disability). Instead, his interactions appear to have been related to an

24 application to rent an apartment. If plaintiff wishes to bring an ADA discrimination claim against

25 a private entity under Title III, plaintiff must allege sufficient facts to establish: (1) plaintiff is

26 disabled within the meaning of the ADA; (2) defendant is a private entity that owns, leases, or

27 operates a place of public accommodation; and (3) plaintiff was denied public accommodations

28 due to plaintiff’s disability. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). If

1 plaintiff wishes to bring a negligence claim alongside any federal claim, plaintiff must clearly

2 include coherent facts for each of the negligence elements provided under the Statement of Claim

3 section (see the form complaint). Given this fact, the court finds it appropriate to grant plaintiff

4 an opportunity to amend the complaint. See Lopez, 203 F.3d at 1130-31 (indicating that prior to

5 dismissal, the court is to tell the plaintiff of deficiencies in the complaint and provide an

6 opportunity to cure––if it appears at all possible the defects can be corrected).4

7 STANDARDS FOR AMENDMENT

8 If plaintiff elects to file an amended complaint, this new pleading shall also:

9 i. be captioned “Second Amended Complaint”;

ii. be limited to 5 pages, with text utilizing a font size of 12 Times New Roman or

10 equivalent and double spacing (pages exceeding the page limit will be summarily

stricken and will not be considered part of plaintiff’s operative pleading);

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iii. list which claims he intends to raise against each defendant, and under each section,

12 list the factual allegations supporting that particular claim;

iv. include a general background facts section to orient the reader only as necessary;

13 v. include his statements for jurisdiction, venue, and relief sought as is necessary;

vi. omit exhibits, documents, photos, or other such “evidence” of his claims (except for

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any contracts on which he bases any breach of contract claim);

15 vii. refrain from alleging redundant, immaterial, impertinent, or scandalous matters;

viii. address any other pleading deficiencies outlined above; and

16 ix. be filed within 28 days of this order.

17 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order

18 to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

19 complaint be complete in itself without reference to any prior pleading. As a general rule, a valid

20 amended complaint supersedes other pleadings, and once the valid amended complaint is filed,

21 the original complaint no longer serves any function.

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4 To the extent the original complaint intended to bring a claim under 42 U.S.C. § 1983 against

24 the apartment manager or managing company, such a claim would fail because a 1983 claim

cannot be brought against private individuals or business entities that do not act under color of

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state law. See Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002). Similarly, if plaintiff intended

to bring forth a 1983 claim against the judicial staff of the Placerville Courthouse for acts made in

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association with the judicial process, that claim would also fail due to judicial immunity. See

27 Demoran v. Witt, 781 F.2d 155, 156 (9th Cir. 1985) (“Courts have extended absolute judicial

immunity from damage actions under 42 U.S.C. § 1983 not only to judges but also to officers

28 whose functions bear a close association to the judicial process.”).

] Finally, nothing in this order requires plaintiff to file an amended complaint. If plaintiff

2 || determines that he is unable to amend his complaint in compliance with the court’s order at this

3 || time, he may alternatively file a notice of voluntary dismissal of his claims without prejudice

4 | pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)() within 28 days of this order.

5 ORDER

6 Accordingly, IT IS HEREBY ORDERED that:

7 1. Plaintiff's motion to proceed in forma pauperis is GRANTED;

8 2. Plaintiff □□ granted 28 days from the date of this order to file either (a) an amended

9 complaint in accordance with this order, or (b) a notice of voluntary dismissal of the

10 action without prejudice;

11 3. Failure to file either an amended complaint or a notice of voluntary dismissal by the

12 required deadline may result in the imposition of sanctions, including dismissal of the

13 action with prejudice pursuant to Federal Rule of Civil Procedure 41(b); and

14 4. Given that no operative complaint exists, plaintiff's attempt to serve defendants on

15 April 19, 2023 (ECF No. 6) is ineffective, and so no answer is currently due from any

16 defendant. If/when there are operative claims that make it past the court’s screening

17 process, service will be handled by the U.S. Marshal. Plaintiff shall cease attempting

18 to serve defendants himself.

19 | Dated: April 20, 2023

20 Aectl Aharon

21 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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