(PS) Alvarado v. CA Unemployment Ins. Appeals Board (CUIAB)

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 LANCE DELON ALVARADO, No. 2:23–cv–3041–TLN–KJN PS

12 Plaintiff, ORDER GRANTING IFP REQUEST AND

FINDINGS AND RECOMMENDATIONS TO

13 v. DISMISS

14 CALIFORNIA UNEMPLOYMENT (ECF Nos. 2, 3.)

INSURANCE APPEALS BOARD, et al.,

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Defendants.

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17 Plaintiff, who proceeds without counsel in this action, requests leave to proceed in forma

18 pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of an

19 action “without prepayment of fees or security” by a person who is unable to pay such fees).

20 Plaintiff’s affidavit makes the required financial showing, and so the request is granted.

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

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

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

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

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

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

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1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to

28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72.

1 Legal Standards – Rule 12(b)(6)

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

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

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

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

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

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

8 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action,

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

10 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a

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

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

13 liable for the misconduct alleged.” Id.

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

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

16 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan

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

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

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

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

21 A complaint must not contain lengthy introductions, argument, speeches, explanations,

22 stories, griping, evidence, summaries, charts, notes, e-mails, and the like. See McHenry v.

23 Renne, 84 F.3d 1172, 1176-78 (9th Cir. 1996). This is because a complaint documentary

24 evidence may be presented at a later point in the case. See Id.

25 Federal courts have no power to consider claims that are “so insubstantial, implausible,

26 foreclosed by prior decisions of this court, or otherwise completely devoid of merit as not to

27 involve a federal controversy.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89

28 (1998); Hagans v. Lavine, 415 U.S. 528, 537 (1974) (no power over claims that are “essentially

1 fictitious,” “obviously frivolous” or “obviously without merit”). A claim is legally frivolous

2 when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325

3 (1989). A court may dismiss a claim as frivolous where it is based on an indisputably meritless

4 legal theory or where the factual contentions are clearly baseless. Id. at 327.

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

6 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is

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

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

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

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

11 Analysis

12 Here, plaintiff’s complaint names the California Unemployment Insurance Appeals Board

13 (“CUIAB”), and the California Unemployment Development Department as defendants. Plaintiff

14 asserts federal question jurisdiction, listing the following sources of law for his claims:

15 (I) Universal Declaration of Human Rights and Title III of the Superfund Amendments and

16 Reauthorization Act, 8 U.S.C. § 1154; (II) The 1933 Securities Act; (III) U.S. Constitution Article

17 VI Par. 2; (IV) Articles of Confederation and Bill of Rights; (V) Pub. Law 116-136, Section

18 2110, 2102; (VI) 22 C.F.R. 625.5(c); (VII) 18 U.S.C. 211, 232, 350, 346(b)(2), 1341, 1589, 1590,

19 1591, 3731; (VIII) Rehabilitation Act 29 U.S.C. 701, 502, 504, 508, 510; (IX) Article IV Section

20 I of the U.S. Constitution; (X) 31 U.S.C. §§ 3729-33; (XI) 22 C.F.R. § 93.2; (XII) 29 C.F.R. § 22;

21 (XIII) Pub. Law 115-123; (XIV) “Due Process”; (XV) 35 C.F.R. 111 and “Wharton’s Rule”;

22 (XVI) 14th Amendment to the U.S. Constitution; (XVII) Cal. Ins. Code § 1871.7. Plaintiff also

23 asserts diversity jurisdiction, alleging California citizenship for both himself and defendants (and

24 including language often used by sovereign citizens), and alleging damages in the amount of

25 $14,637.00 among other relief. (ECF No. 1 at 1-9.)

26 As best the court can tell, plaintiff’s dispute concerns the denial of “pandemic

27 unemployment assistance” benefits. Plaintiff asserts he “went through ALJ hearing that was

28 appealed by defendant CUIAB,” and he won his appeal in 2022 that stated he was “eligible for

1 benefits.” It is unclear from the text of plaintiff’s complaint what occurred before or after this

2 hearing and appeal, as the remainder of plaintiff’s typed narrative contains references to scripture,

3 personal accounts, and other information seemingly irrelevant to the allegations against

4 defendants. (Id. at 10-14.)

5 Beyond these pages, plaintiff attaches over 350 pages of exhibits. Exhibit A appears to be

6 a decision from CUIAB, from September of 2022, concerning plaintiff’s application for

7 unemployment benefits. The decision appears to reverse an ALJ’s decision on whether plaintiff’s

8 compensation was “wages” under the law, while deferring to the Employment Development

9 Department (“EDD”) and ALJ on other issues for remand, as well as noting plaintiff’s claim

10 appears to be for wages earned in Nevada. The decision concludes that “benefits are payable

11 provided the claimant is otherwise eligible.” (Id. at 19-21.) Exhibit B appears to be a second

12 decision by CUIAB, from June of 2023, affirming the ALJ’s second decision denying benefits.

13 The CUIAB appears to note plaintiff’s objections on grounds of due process, legal error, and

14 factual error, resolving each against him. Finally, the decision states “it is unclear why the

15 claimant has not opened a claim for unemployment insurance benefits or pandemic

16 unemployment assistance in Nevada,” providing information for how to do so in that state. (Id. at

17 28-30.) The remainder of plaintiff’s exhibits appear to concern Nevada family court proceedings,

18 a Nevada criminal matter, and ancillary filings before the CUIAB and EDD—including notices of

19 hearings and rights of appeal. (Id. at 42-366.) Of note, EDD appears to have denied plaintiff

20 benefits in November of 2022 because he did not live or work in California, and the CUIAB

21 noted that plaintiff’s claim for benefits appears latched to caregiving services he provided for

22 another individual in Nevada. (Id. at 190, 218.)

23 The court begins with plaintiff’s claims alleged under the U.S. Constitution. The only

24 specific citation to a provision that could provide relief to private citizens is the 14th Amendment

25 due process claim. Such claims are generally raised under 42 U.S.C. Section 1983, which

26 provides a cause of action for the deprivation of “rights, privileges, or immunities secured by the

27 Constitution or laws of the United States” against a person acting “under color of any statute,

28 ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635, 639 (1980); see also

1 Graham v. Connor, 490 U.S. 386, 393–394 (1989) (“Section 1983 is not itself a source of

2 substantive rights; rather it provides a method for vindicating federal rights elsewhere

3 conferred.”). To state a claim for relief under Section 1983, a plaintiff must allege that the

4 defendant (1) acted under color of state law; and (2) caused a plaintiff to be deprived of a right

5 secured by the Constitution or laws of the United States. Nurre v. Whitehead, 580 F.3d 1087,

6 1092 (9th Cir. 2009).

7 Construing plaintiff’s claim as one for procedural due process under Section 1983,

8 plaintiff’s allegations and accompanying documents indicate no claim lies for the proceedings

9 before EDD and CUIAB. First, plaintiff fails to name the officer(s) responsible for the

10 proceedings. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (emphasis added) (noting

11 that the causation inquiry “must be individualized and focus on the duties and responsibilities of

12 each individual defendant whose acts or omissions are alleged to have caused a constitutional

13 deprivation.”). Thus, any such claim against defendants fail.

14 More importantly, procedural due process claims are rooted in the right to notice and a

15 hearing before any property deprivation are effected. Mathews v. Eldridge, 424 U.S. 319, 333

16 (1976) (“This Court consistently has held that some form of hearing is required before an

17 individual is finally deprived of a property interest.”). To state a procedural due process claim,

18 plaintiff must allege facts showing “(1) a deprivation of a constitutionally protected liberty or

19 property interest, and (2) a denial of adequate procedural protections.” Brewster v. Bd. of Educ.

20 of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Even assuming plaintiff has a

21 “legitimate claim of entitlement” to unemployment benefits in California, Bd. of Regents v. Roth,

22 408 U.S. 564, 577 (1972), plaintiff’s exhibits indicate the board provided adequate procedural

23 protections. (ECF No. 1 at 42-366.) Thus, plaintiff’s 14th Amendment/due process claims fail.

24 The remainder of plaintiff’s citations to the U.S. Constitution do not provide adequate

25 notice of the source of plaintiff’s claims, and so are dismissible. Iqbal, 556 U.S. 662, 678 (2009).

26 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

27 statements do not suffice.”). The same holds true for plaintiff’s citations to the Rehabilitation

28 Act, 29 U.S.C. § 701 et seq., or the False Claims Act, 31 U.S.C. §§ 3729-33. See Clark v. State

1 of Cal., 123 F.3d 1267, 1270 (9th Cir. 1997) (“[T]he purpose of . . . section 504 of the

2 Rehabilitation Act is to prohibit discrimination against the disabled.”); see also, e.g., U.S. ex rel.

3 Ruhe v. Masimo Corp., 977 F. Supp. 2d 981, 991 (C.D. Cal. 2013), aff'd, 640 F. App'x 666 (9th

4 Cir. 2016) (“The intended purpose of the False Claims Act is to recover losses due to fraud on the

5 government coffers.”).

6 Plaintiff’s citations to sections of 18 U.S.C. are dismissible as legally frivolous, as

7 sections of the U.S. criminal code do not provide a right of action to private citizens. See Allen v.

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

9 violation of criminal statutes). The same holds for plaintiff’s citations to various portions of the

10 U.S. Code, Code of Federal Regulations and other laws. For example, Pub. Law 115-123

11 authorizes flags flying at half-staff; 35 C.F.R. 111 concerns the application for a patent,

12 “Wharton’s Rule” bars prosecution of two persons for conspiracy, and Cal. Ins. Code § 1871.7

13 concerns whistleblowing for claims presented to insurance companies. See Neitzke, 490 U.S. at

14 325 (noting claims are legally frivolous when they lack an arguable basis either in law or in fact).

15 Leave to Amend

16 Ordinarily, the court liberally grants a pro se plaintiff leave to amend. However, because

17 the record here shows that plaintiff would be unable to cure the above-mentioned deficiencies

18 through further amendment of the complaint, the court concludes that granting leave to amend

19 would be futile. Cahill, 80 F.3d at 339. Plaintiff’s claims center on his disagreement with the

20 state’s denial of unemployment benefits. As plaintiff’s documents indicate, he has rights of

21 appeal in a California Superior Court. The court takes no position on the merits of his claim, but

22 simply notes no claim exists in federal court for these denials. See, e.g., Paskiewicz v. Brower,

23 2020 WL 7074605, at *3 (E.D. Cal. Dec. 3, 2020), report and recommendation adopted, No.

24 2:20-CV-02238-TLN-AC, 2021 WL 217501 (E.D. Cal. Jan. 21, 2021) (noting that [t]he

25 California Unemployment Insurance Code provides a comprehensive appeals process for

26 unemployment insurance applicants who are dissatisfied with EDD administrative actions.”)

27 (citing Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291 (holding that this

28 administrative appeals process fulfills “every requisite of due process of law”)).

1 ORDER AND RECOMMENDATIONS

2 Accordingly, IT IS HEREBY ORDERED that plaintiff's IFP application (ECF No. 2) is

3 | GRANTED. Further, it is RECOMMENDED that:

4 1. The action be DISMISSED WITH PREJUDICE;

5 2. Plaintiffs request for electronic filing (ECF No. 3) be DENIED as moot; and

6 3. The Clerk of Court be directed to CLOSE this case.

7 || These findings and recommendations are submitted to the United States District Judge assigned to

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

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

10 || the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

11 || Recommendations.” Plaintiffis advised that failure to file objections within the specified time

12 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455

13 | (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

14 | Dated: February 16, 2024 / aa / x ly a

1s CAROLYN K DELANEY

16 UNITED STATES MAGISTRATE JUDGE

17 || alva3041

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