Carey v. Torres

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 CECILIA CAREY, Case No. 24-cv-07354-TSH

8 Plaintiff,

SECOND SCREENING ORDER

9 v.

PURSUANT TO 28 U.S.C. § 1915(E)

10 MAURICIO TORRES,

11 Defendant.

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I. INTRODUCTION

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On December 3, 2024, the Court granted Plaintiff Cecilia Carey’s application to proceed in

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forma pauperis and screened the complaint, finding it deficient under 28 U.S.C. § 1915(e). ECF

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No. 5. Plaintiff has now filed an amended complaint. ECF No. 7. For the reasons stated below,

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the Court finds the amended complaint is still deficient. No later than January 17, 2025, Plaintiff

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must file a second amended complaint curing the deficiencies identified in this screening order. If

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Plaintiff fails to cure these deficiencies, the case will likely be reassigned to a district judge with a

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recommendation for dismissal.

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II. BACKGROUND

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A. Initial Complaint

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Plaintiff filed her initial complaint on October 22, 2024, alleging claims under the

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Fourteenth Amendment’s Due Process and Equal Protection Clauses against Defendant Mauricio

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Torres and Does 1-50. Compl., ECF No. 1. Plaintiff alleged Torres purchased 3414 64th Avenue

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Place in Oakland, where she resides, in July 2023. Compl. at 1, 3. According to Plaintiff, the

1 building’s tenants did not receive notice of any new lease terms or of a change in ownership. Id.

2 at 3, 5. Plaintiff alleged Torres did not qualify as an “eligible bidder” or provide the California

3 Department of Justice with an affidavit as required by California Civil Code section 2924. Id.

4 Plaintiff also alleged the title or ownership of the building is subject to ongoing litigation. Id. at 4.

5 In October 2023, Torres began filing multiple unlawful detainer claims against the

6 building’s tenants. Id. at 3. In response, Plaintiff organized her fellow tenants to protect their

7 rights, sending communications to public agencies about Torres’s attempts to evict them. Id. at 4.

8 In January, February, August and September 2024, Torres sent people to change the locks on

9 Plaintiff’s doors without permission or notice. Id. at 3. Plaintiff alleged Torres lacks “just cause”

10 or standing to evict and that Torres filed a false proof of service in Alameda County Superior

11 Court and fraudulent documentation with both the Alameda County Superior Court and Alameda

12 County Sheriff’s Department to carry out illegal evictions. Id. at 3, 4. Plaintiff alleged Torres

13 relied on false allegations to file a petition for a temporary civil harassment restraining order to

14 harass Plaintiff and to retaliate against Plaintiff for her tenant organizing efforts. Id. at 4, 6.

15 Plaintiff also alleged Torres has sent her “intimidating text messages” and that Torres’s

16 representatives or associates have knocked on her door with threats of eviction. Id. at 3, 4.

17 Plaintiff alleged Torres demonstrated a pattern of predatory and retaliatory treatment by

18 targeting the tenants of her building for eviction without just cause. Id. at 6. She alleged Torres

19 and Does 1-50 engaged in a concerted effort to file frivolous lawsuits to empty the building of its

20 existing tenants and profit from their displacement. Id. at 5. Plaintiff also alleged Torres filed

21 baseless unlawful detainer complaints and false proofs of service and altered court documents to

22 prevent a fair legal process. Id. at 5. Plaintiff alleged Torres “weaponized our judicial system and

23 took away access to [her] equal protection” by filing false proofs of service and altering court

24 documents. Id. at 6.

25 Plaintiff sought damages in the amount of $500,000, legal costs, and an order prohibiting

26 Torres “from further harassment and retaliatory conduct.” Id. at 7. Plaintiff also requested the

27 Court dismiss with prejudice the civil harassment restraining order and unlawful detainer

1 B. Screening Order

2 In its screening order, the Court noted a threshold issue with Plaintiff’s Fourteenth

3 Amendment’s Due Process and Equal Protection Clauses: she asserted these claims against private

4 actors— i.e., persons who are not government or state actors. Screening Order at 5, ECF No. 5.

5 The Court found that, although Plaintiff alleged Torres used arms of the government to harm her,

6 the allegations in her complaint did not indicate that Torres’s alleged conduct resulted from the

7 State’s exercise of coercive power or that the State encouraged Torres in his alleged conduct to the

8 point that Torres’s conduct could be attributed to the State. As such, the Court found Torres’s

9 alleged conduct does not constitute “state action” for the purposes of the Fourteenth Amendment.

10 As to Plaintiff’s request that the Court dismiss with prejudice Torres’s civil harassment

11 restraining order and unlawful detainer complaint, the Court found it does not have jurisdiction to

12 consider any such claims. Id. at 6 n.1 (citing Petaluma Theatre Square, LLC v. Hirsch, 2019 WL

13 1171162, at *1 (N.D. Cal. Feb. 25, 2019), report and recommendation adopted, 2019 WL

14 1168538 (N.D. Cal. Mar. 13, 2019)) (“Unlawful-detainer claims do not arise under federal law,”

15 and thus do not give rise to federal-question jurisdiction.)).

16 Apart from her Fourteenth Amendment claims, Plaintiff did not allege any other causes of

17 action in her complaint. To the extent she may or may not have viable state law claims, the Court

18 noted she had not stated any viable federal claim that would give the Court jurisdiction over

19 related state law claims. Id. at 6.

20 C. Amended Complaint

21 On December 6, 2024, Plaintiff filed an amended complaint. ECF No. 7. In addition to

22 Mauricio Torres and Does 1-50, Plaintiff also names Community Loans & Investments as a

23 defendant. Id. at 2. In the “Basis for Jurisdiction” section, Plaintiff again alleges Fourteenth

24 Amendment violations, but also adds claims under Title VII, 42 U.S.C. §§ 3601 and 3602, and 18

25 U.S.C. §§ 242 and 1341. Id. at 3.

26 Plaintiff alleges “Defendants” purchased 3414 64th Avenue Place in Oakland using

27 California Code of Civil Procedure section 2924, but they “did not comply with the requirements

1 occupant.” Am. Compl. at 5. As in her initial complaint, Plaintiff alleges Defendants initiated a

2 series of unlawful detainer actions without just cause, locked tenants out of their units without

3 prior notice, relied on false allegations to file a petition for a temporary civil harassment

4 restraining order to harass Plaintiff and to retaliate against her for her tenant organizing efforts,

5 sent “intimidating text messages,” and filed frivolous lawsuits to empty the building of its existing

6 tenants. Id. at 4-5. Plaintiff also alleges Defendants have restricted access to the public storage

7 area designated for tenant use, leaving her without access to legal documentation and other

8 personal property. Id. at 5. Plaintiff seeks $500,000 in damages, as well as ‘an injunction from

9 the court to be allowed in the public tenant storage area to retrieve my personal property and legal

10 documents” and “an injuction [sic] from the court to prevent the Defendants from filing frivilous

11 [sic] filings and a restraint against more physical harassment.” Id. at 6.

12 III. SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2)

13 A. Legal Standard

14 A court must dismiss an in forma pauperis complaint before service of process if it “(i) is

15 frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

16 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(i)-

17 (iii). “The standard for determining whether a plaintiff has failed to state a claim upon which

18 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure

19 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.

20 2012) (citation omitted). As such, the complaint must allege facts that plausibly establish each

21 defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). “A claim has

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

23 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

24 556 U.S. 662, 678 (2009). In making this determination, the Court must “take as true all

25 allegations of material fact stated in the complaint and construe them in the light most favorable to

26 the plaintiff.” Watison, 668 F.3d at 1112 (citation omitted). The Court must also “construe a pro

27 se plaintiff’s pleadings liberally and afford the petitioner the benefit of any doubt.” Id. (cleaned

1 pled.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).

2 A complaint must also comply with Federal Rule of Civil Procedure 8, which requires the

3 complaint to contain “a short and plain statement of the claim showing that the pleader is entitled

4 to relief.” Fed. R. Civ. P. 8(a)(2). The failure to comply with Rule 8 is a basis for dismissal that is

5 not dependent on whether the complaint is without merit. McHenry v. Renne, 84 F.3d 1172, 1179

6 (9th Cir. 1996). Accordingly, even claims which are not on their face subject to dismissal under

7 Rule 12(b)(6) may still be dismissed for violating Rule 8(a). Id.

8 B. Application

9 As with Plaintiff’s initial complaint, the Court finds the amended complaint fails to

10 provide any basis on which the Court would have jurisdiction over this matter.

11 As courts of limited jurisdiction, “federal courts have an independent obligation to ensure

12 that they do not exceed the scope of their jurisdiction.” Henderson ex rel. Henderson v. Shinseki,

13 562 U.S. 428, 434 (2011); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004) (noting

14 that district courts are “obligated to consider sua sponte whether [they] have subject matter

15 jurisdiction”). There are two bases for federal subject matter jurisdiction: (1) federal question

16 jurisdiction under 28 U.S.C. § 1331 and (2) diversity jurisdiction under 28 U.S.C. § 1332. A

17 district court has federal question jurisdiction in “all civil actions arising under the Constitution,

18 laws, or treaties of the United States.” Id. at § 1331. A cause of action “arises under federal law

19 only when the plaintiff’s well-pleaded complaint raises issues of federal law.” Hansen v. Blue

20 Cross of Cal., 891 F.2d 1384, 1386 (9th Cir. 1989). A district court has diversity jurisdiction

21 “where the matter in controversy exceeds the sum or value of $75,000 . . . and is between citizens

22 of different states, or citizens of a State and citizens or subjects of a foreign state.” Id.

23 Here, there can be no diversity jurisdiction, as Plaintiff states that Torres, Community

24 Loans & Investments, and Does 1-50 are all residents of California. Am. Compl. at 1-2.

25 Accordingly, the Court must determine whether federal question jurisdiction exists.

26 Fourteenth Amendment

27 First, as to Plaintiff’s claims under the Fourteenth Amendment’s Due Process and Equal

1 are not government or state actors. “Individuals bringing actions against private parties for

2 infringement of their constitutional rights . . . must show that the private parties’ infringement

3 somehow constitutes state action.” George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229 (9th

4 Cir. 1996) (per curiam) (citations omitted); see also 42 U.S.C. § 1983. The presumption is that a

5 private actor’s conduct is not state action. Florer v. Congregation Pidyon Shevuym, N.A., 639

6 F.3d 916, 922 (9th Cir. 2011). State action exists “only if[] there is such a close nexus between

7 the State and the challenged action that seemingly private behavior may be fairly treated as that of

8 the State itself.” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295

9 (2001) (quotations omitted). Courts may find state action when the challenged activity “results

10 from the State’s exercise of coercive power, when the State provides significant encouragement,

11 either overt or covert, or when a private actor operates as a willful participant in joint activity with

12 the State or its agents.” Id. at 295 (cleaned up).

13 In her original complaint, Plaintiff alleged Torres used the Oakland Police Department and

14 Alameda County Sheriff to harass and intimidate the building’s tenants and that Torres

15 “weaponized” the Alameda County Sheriff’s office by completing and filing an altered Sheriff’s

16 Notice with the Alameda County Sheriff. Compl at 4, 6. Plaintiff also alleged Torres used “with

17 malice” the Alameda County Superior Court and the Alameda County Sheriff by altering and

18 filing false official documents to deprive Plaintiff of equal protection under the law. Id. at 6. She

19 further alleged Torres “collu[ded] with official clerk staff[,]” depriving Plaintiff and her family of

20 equal protection under the law. Id. The Court instructed Plaintiff that, although she alleged

21 Torres used arms of the government to harm her, the alleged conduct did not constitute “state

22 action” for the purposes of the Fourteenth Amendment because her allegations did not indicate

23 that Torres’s conduct resulted from the State’s exercise of coercive power or that the State

24 encouraged Torres in his alleged conduct to the point that Torres’s conduct could be attributed to

25 the State. Screening Order at 4.

26 Plaintiff’s amended complaint fairs no better. Although she adds a mortgage lender as a

27 defendant, she still fails to plausibly show how these private parties’ actions could constitute state

1 Amendment. Plaintiff’s Fourteenth Amendment claims must therefore be dismissed, and it cannot

2 be a basis for this Court’s jurisdiction.

3 Title VII

4 Plaintiff also alleges jurisdiction exists under Title VII, which forbids discrimination by

5 employers based on an individual’s race, color, religion, sex, or national origin. 42 U.S.C. §

6 2000e-2. However, “Title VII prohibits discrimination by employers but does not generally

7 impose liability for the conduct of non-employers.” Malloy v. Regents of Univ. of California,

8 2020 WL 789821, at *6 (N.D. Cal. Feb. 18, 2020) (emphasis in original); see also 42 U.S.C. §

9 2000e-2(a) & (b) (defining “unlawful employment practices” by a plaintiff’s employer or

10 employment agency). In both her original and amended complaints, Plaintiff does not allege that

11 she was employed by any of the defendants. As such, she cannot bring a Title VII claim against

12 them. See, e.g., Taylor v. San Francisco Sheriff’s Dep’t, 2024 WL 2808650, *7, *13–14 (N.D.

13 Cal. May 31, 2024) (dismissing Title VII claims against Superior Court and City and County of

14 San Francisco where plaintiff did not allege she was employed by either defendant); Carr v.

15 United States, 2020 WL 4584193, *2 (N.D. Cal. Aug. 10, 2020) (finding Title VII was

16 inapplicable to claim brought against IRS by plaintiff who was not an IRS employee).

17 Accordingly, Plaintiff’s Title VII claim must also be dismissed.

18 42 U.S.C. §§ 3601-02

19 Plaintiff also alleges jurisdiction exists under 42 U.S.C. §§ 3601 and 3602, part of the Fair

20 Housing Act (“FHA”), which was enacted “to provide, within constitutional limitations, for fair

21 housing throughout the United States.” 42 U.S.C. § 3601. The Act makes it illegal to

22 discriminate on an impermissible ground in the sale or rental of housing, in residential real estate-

23 related transactions, or in the provision of brokerage services. 42 U.S.C. §§ 3604-06.

24 Plaintiff brings no specific factual allegations concerning discrimination in any areas under

25 the FHA; she merely lists § 3601, which sets forth the general policy of the FHA (declaring the

26 goal of eliminating housing discrimination) and § 3602, which provides definitions used in the

27 FHA. However, it is possible she can state a claim under the Act. A plaintiff may establish an

1 v. Itzhaki, 183 F.3d 1043, 1051–52 (9th Cir. 1999) (citing Gamble v. City of Escondido, 104 F.3d

2 300, 304–05 (9th Cir. 1997)). To bring a claim for disparate treatment or disparate impact, the

3 plaintiff must establish a prima facie case by showing: “(1) plaintiff’s rights are protected under

4 the FHA; and (2) as a result of the defendant’s discriminatory conduct, plaintiff has suffered a

5 distinct and palpable injury.” Id. (citing Lowe v. City of Monrovia, 775 F.2d 998, 1006 (9th Cir.

6 1985)).

7 Section 3604(a) makes it unlawful to “make unavailable or deny a dwelling to any person

8 because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a).

9 While Ҥ 3604(a) does not reach every event that might conceivably affect the availability of

10 housing,” it “is designed to ensure that no one is denied the right to live where they choose for

11 discriminatory reasons.” Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192

12 (4th Cir. 1999). Thus, for example, a plaintiff may bring a claim under § 3604(a) by alleging a

13 landlord’s actions make apartments “effectively unavailable” through such actions as “concoct[ing]

14 a scheme to force [them] to move out by refusing to cash [their] rent checks” and then bringing an

15 unlawful detainer action under the pretext of nonpayment of rent. See Hous. Rights Ctr. v.

16 Sterling, 404 F. Supp. 2d 1179, 1190 (C.D. Cal. 2004).

17 Section 3604(b) of the FHA makes it unlawful “[t]o discriminate against any person in

18 terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or

19 facilities in connection therewith, because of race, color, religion, sex, or national origin.” To

20 state a claim under § 3604(b), a plaintiff must show that he or she was subjected to different

21 “terms, conditions, or privileges because of a protected status.” Inland Mediation Bd. v. City of

22 Pomona, 158 F. Supp. 2d 1120, 1148 (C.D. Cal. 2001). The FHA thus not only demands that

23 tenants be able to secure an apartment on a nondiscriminatory basis, but also “guarantees their

24 right to equal treatment once they have become residents of that housing.” Id. Thus, for example,

25 a plaintiff may bring a claim under § 3604(b) if they allege they were subjected to less favorable

26 “terms, conditions or privileges” with respect to an apartment or the eviction proceedings brought

27 against them than other tenants based on a protected class. Hous. Rights Ctr., 404 F. Supp. 2d at

1 Given Plaintiff’s allegations, the Court finds it is possible for her to state a claim under the

2 FHA. However, she has not alleged she is a member of a protected class under the FHA or that

3 Defendants discriminated against her based on her protected status. See Pardo-Pena v. Kaas

4 Properties LLC, 2024 WL 3298284, at *8 (C.D. Cal. Feb. 9, 2024) (finding plaintiff failed to

5 adequately allege a plausible claim for relief because he did not allege any facts connecting

6 eviction attempts to his protected status); Egan v. Schmock, 93 F. Supp. 2d 1090, 1093 n.1 (N.D.

7 Cal. 2000) (to be discriminatory harassing conduct, it must be “motivated by an individual’s race,

8 color, religion, sex, familial status, national origin or handicap”); Vickerman v. Ramon Mobile

9 Home Park Inc., 2015 WL 13918532, at *11 (C.D. Cal. Aug. 14, 2015) (rejecting an FHA

10 harassment claim regarding a general manager’s alleged threat because the conduct was not “tie[d]

11 ... to harassment [ ] based on his disability”). As Plaintiff may be able to allege such facts, leave

12 to amend is appropriate.

13 18 U.S.C. §§ 242 and 1341

14 Finally, Plaintiff alleges the Court has jurisdiction over her claims pursuant to 18 U.S.C.

15 §§ 242 and 1341. However, these are criminal statutes, and it is well-established that “a private

16 citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.”

17 Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th

18 Cir. 1980) (“These criminal provisions, however, provide no basis for civil liability.”); Redmond

19 v. United States, 2022 WL 1304472, at *3 (N.D. Cal. May 2, 2022) (A “private individuals lack

20 standing to assert claims for relief based on criminal statutes.”) (collecting cases). Thus,

21 “[i]ndividuals cannot file criminal charges in the United States District Court. Rather, criminal

22 proceedings in federal court are initiated by the government, usually through the United States

23 Attorney’s Office.” Candy-Anh-Thu:Tran v. Daniel, 2017 WL 6513414, at *2 (N.D. Cal. Dec. 20,

24 2017) (citing Harbor v. Kim, 2017 WL 443164, at *4 (C.D. Cal. Jan. 31, 2017) (“The decision to

25 institute criminal proceedings lies within the discretion of the proper state or federal prosecuting

26 authority”); see also United States v. Nixon, 418 U.S. 683, 693 (1974) (observing that the

27 executive branch has “exclusive authority and absolute discretion to decide whether to prosecute a

1 v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (no private cause of action under 18 U.S.C. § 242);

2 Ross v. Orange Cty. Bar Ass’n, 369 F. App’x 868, 869 (9th Cir. 2010) (“[Plaintiff] ha[s] no

3 separate private right of action for mail fraud under 18 U.S.C. § 1341.”). If Plaintiff believes the

4 defendants engaged in criminal conduct, she must contact federal law enforcement or the United

5 States Attorney’s Office and present the facts supporting that belief to them.

6 IV. CONCLUSION

7 For the reasons above, the Court finds Plaintiff’s amended complaint fails to state a claim

8 pursuant to 28 U.S.C. § 1915(e). However, her pro se status, and because it is not clear that the

9 deficiencies of the complaint could not be cured by amendment, the Court shall grant another

10 opportunity to amend. Accordingly, the Court ORDERS Plaintiff to file a second amended

11 complaint by January 17, 2025.

12 A. Requirements for Amended Complaint

13 Because an amended complaint replaces the previous complaint, it may not incorporate

14 claims or allegations in the original complaint by reference. See Ferdik v. Bonzelet, 963 F.2d

15 1258, 1262 (9th Cir. 1992). Instead, any amendment must include all of the facts and claims to be

16 presented and all of the defendants that are to be sued. In addition, any amended complaint must

17 include the following sections:

18 Caption Page

On the first page, list the names of the defendant(s), the case number

19 used in this order (24-cv-07354-TSH), the title (“SECOND

AMENDED COMPLAINT”), and write “Demand for Jury Trial” if

20 you want your case to be heard by a jury.

21 Form of Pleadings

The factual allegations and claims must be written in numbered

22 paragraphs, each limited as far as practicable to a single set of

circumstances.

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Subject Matter Jurisdiction

24 The first numbered paragraph in your complaint (labeled

“Jurisdiction”) should explain why this Court has the power to decide

25 this kind of case. A federal court can hear a case based on a federal

question jurisdiction (a violation of federal law under 28 U.S.C. §

26 1331) or diversity jurisdiction (when all plaintiffs and all defendants

are citizens of different states disputing more than $75,000) under 28

27 U.S.C. § 1332.

In separate paragraphs for each party, identify the plaintiff(s) and

1 defendant(s) in the case.

2 Statement of Facts

Explain the important facts in numbered paragraphs, describing how

3 the defendant(s) violated the law and how you have been injured.

4 Claims

Include a separate heading for each legal claim (Claim 1, Claim 2,

5 etc.), identifying the specific law that you think the defendant(s)

violated and explaining in numbered paragraphs what each defendant

6 did to violate each law.

7 || B. Resources

8 Plaintiff is again advised of the resources offered at the Legal Help Center, a free service

9 offered by the Justice & Diversity Center of the Bar Association of San Francisco. You may

10 || request an appointment by emailing fedpro @sfbar.org or calling 415-782-8982. At the Legal

11 Help Center, you will be able to speak with an attorney who may be able to provide basic legal

«12 || help but not representation. More information is available at https://www.cand.uscourts.gov/pro-

2 13 se-litigants/.

v 14 Plaintiff may also wish to obtain a copy of this District’s Handbook for Litigants Without a

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15 Lawyer, which provides instructions on how to proceed at every stage of your case. The

4 16 handbook is available in person at the Clerk’s Office and online at:

17 https://www.cand.uscourts.gov/pro-se-litigants/.

18 IT IS SO ORDERED.

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20 Dated: December 20, 2024

21 7 LU \ - Lj

THOMAS S. HIXSON

22 United States Magistrate Judge

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