(PS) Kidgell v. County of Merced

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 GARY HOWARD KIDGELL, No. 2:24-cv-1580 TLN SCR (PS)

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 COUNTY OF MERCED,

15 Defendant.

16

17 Plaintiff, Gary Howard Kidgell, filed this action pro se and paid the filing fee. The case

18 was accordingly referred to the undersigned pursuant to Local Rule 302(c)(21). Plaintiff is suing

19 Defendant County of Merced over an allegedly unlawful private land transfer that occurred in

20 1872 or 1873, on the theory that Defendant’s recording of the transfer was unconstitutional and

21 therefore gives rise to federal jurisdiction under 42 U.S.C. §1983.

22 Pending before the Court is Defendant’s motion to dismiss for lack of subject matter

23 jurisdiction under Rule 12(b)(1) (ECF No. 7) and Plaintiff’s motion for leave to file an amended

24 complaint (ECF No. 15). For the reasons that follow, the undersigned recommends that the

25 motion to dismiss be granted. The undersigned further recommends that the motion for leave to

26 amend be denied because the proposed amended complaint does not cure the defects of the

27 original complaint.

28 ////

1 Finally, the undersigned recommends that this action be dismissed without further leave to

2 amend, because amendment would be futile. Even assuming that Plaintiff could plead facts

3 showing (1) that this action concerning events that occurred more than 150 years ago is timely,

4 (2) that there was state action, (3) that Defendant had a contemporaneous policy and practice of

5 unlawfully recording deeds such that Monell liability would attach, and (4) that Defendant’s

6 conduct was so egregious that it violated due process, Plaintiff could not establish federal

7 jurisdiction. That is because the alleged constitutional injury was perpetrated against his

8 ancestors and any injury to Plaintiff some 150 years later is too speculative to establish standing.

9 I. BACKGROUND

10 A. The Complaint1

11 Plaintiff sues Defendant for alleged violations of 18 U.S.C. § 242, the Supremacy Clause,

12 and Fifth and Fourteenth Amendments to the United States Constitution. ECF No. 1 at 1-2.

13 Plaintiff asserts federal question jurisdiction, citing 42 U.S.C. § 1983, the Fifth and Fourteenth

14 Amendment to the U.S. Constitution, and the Supremacy Clause. Id. at 2-3.

15 The Complaint alleges the following: Plaintiff is heir of George Spafford Evans

16 (“Evans”), id. at 1; a U.S. land patent transferred public land to Evans, id. at 12, Exhibit B;

17 sometime thereafter, apparently in 1873,2 Defendant recorded a deed conveying the properties to

18 others, id. at 6, 10-11, Exhibit A; the deed is a “fraudulent administrative document,” id. at 6; “by

19 enacting, implementing, or enforcing state laws, regulations, or actions that directly conflict with,

20 obstruct or impede the execution, effectiveness, or authority of federal laws, regulations, or

21 actions” Defendant violated the Supremacy Clause, id. at 4; by depriving Plaintiff of his private

22 property rights “without proper notice, an opportunity to be heard, or following appropriate legal

23 procedures,” Defendant violated Plaintiff’s rights under the Fourteenth Amendment’s Due

24 Process Clause, id.; by depriving Plaintiff of his property without just compensation, the

25

26

1 The Court construes the Complaint liberally because Plaintiff is representing himself. See

Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a duty to

27 construe pro se pleadings liberally.”).

2 The Complaint states 1872 was the year of the conveyance, though it appears from an exhibit

28 that the conveyance was recorded in 1873.

1 Defendant violated Plaintiff’s rights under the Fifth Amendment’s Takings Clause, id.

2 Plaintiff seeks punitive damages for the “wrongs and deprivation of rights” by Defendant

3 and presents three alternative additional forms of relief: (1) compensatory damages for the

4 deprivation of land; (2) cancellation of deeds conveying property the property and return the land

5 to Evans; or (3) conveyance of the equivalent of 880 acres of land in the County of Merced to

6 Evans and heirs. Id. at 6.

7 B. The Motion to Dismiss

8 Defendant seeks dismissal of Plaintiff’s Complaint under Federal Rule of Civil Procedure

9 12(b)(1) for lack of subject-matter jurisdiction. ECF No. 7. Defendant argues that the Complaint

10 fails to establish federal question jurisdiction because: (1) “federal land patents and acts of

11 Congress do not provide a basis for federal question jurisdiction”; (2) “the is no conflict between

12 federal and state statute that involves the Supremacy Clause;” (3) “recording of a deed does not

13 invoke a federal right subject to due process guaranteed by the Fourteenth Amendment”; (4) “the

14 Due Process Clause of the Fifth Amendment applies to the federal government, not state or local

15 government”; and (5) “disputes over possessory interests in land under the facts alleged invoke no

16 federal statutes, treaties, rights, privileges or immunities secured by federal law.” ECF No. 7 at 2

17 (cleaned up); see also ECF No. 7-1 at 2-6.

18 Plaintiff filed an opposition that is difficult to comprehend. From what the Court can

19 discern, it appears Plaintiff’s primary argument in opposition is that it would be premature for this

20 Court to dismiss his case for failure to state a claim under Federal Rule of Civil Procedure

21 12(b)(6) because “the Federal lawsuit is heavily dependent on the outcome of the State case.”3

22 ECF No. 10 at 3. Plaintiff again cites to 18 U.S.C. § 242, the Supremacy Clause and the

23

24 3 Neither party provides detail about the apparently related case in state court. As a result, the

Court does not consider whether the “Colorado River doctrine” would require the stay or

25

dismissal of this action in light of the state case. See Colorado River Water Conservation Dist. v.

26 United States, 424 U.S. 800 (1976); see also R.R. St. & Co. v. Transport Ins. Co., 656 F.3d 966,

983 (9th Cir. 2011) (“Ultimately, the decision whether to dismiss a federal action because of

27 parallel state-court litigation hinges on a careful balancing of the [relevant] factors ... with the

balance heavily weighted in favor of the exercise of jurisdiction.” (internal citation and quotation

28 marks omitted)).

1 Fourteenth and Fifteenth Amendments of the U.S. Constitution. Id. at 4-6. Plaintiff then argues

2 that should the Court find deficiencies in his Complaint, the Court should grant him leave to

3 amend. Id. at 6-7.

4 In reply, Defendant argues that by focusing on the merits of his claims rather than on

5 whether federal question jurisdiction exists, Plaintiff has failed to carry his burden of establishing

6 jurisdiction. ECF No. 11 at 2. Defendant further argues that Plaintiff cannot remedy the lack of

7 federal question jurisdiction by establishing personal jurisdiction, and reiterates the arguments

8 made in its motion. Id. at 2-4.

9 II. LEGAL STANDARDS

10 A. Federal Rule of Civil Procedure 12(b)(1) – Lack of Subject Matter

Jurisdiction

11

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

13 Am., 511 U.S. 375, 377, (1994). Congress granted federal courts jurisdiction over cases that

14 “aris[e] under” federal law. 28 U.S.C. §§ 1331. A case “arises under” federal law where federal

15 law creates the cause of action or “where the vindication of a right under state law necessarily

16 turn[s] on some construction of federal law.” Republican Party of Guam v. Gutierrez, 277 F.3d

17 1086, 1088–89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction Laborers Vacation

18 Trust, 463 U.S. 1, 8–9 (1983)). This type of jurisdiction is known as “federal-question

19 jurisdiction.” Badgerow v. Walters, 596 U.S. 1, 7-8 (2022).

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

21 pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal

22 question is presented on the face of the plaintiff’s properly pleaded complaint.” Republican Party

23 of Guam, 277 F.3d at 1089 (quoting Rivet v. Regions Bank, 522 U.S. 470, 475 (1998)). “The

24 party asserting federal subject matter jurisdiction bears the burden of proving its existence.”

25 Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) (citing

26 Kokkonen, 511 U.S. at 377)).

27 To dismiss for lack of federal question jurisdiction, despite the existence of a federal

28 claim, the Court must find “the alleged claim under the Constitution or federal statutes clearly

1 appears to be immaterial and made solely for the purpose of obtaining jurisdiction” or “such a

2 claim is wholly insubstantial and frivolous.” Leeson v. Transamerica Disability Income Plan,

3 671 F.3d 969, 975 (9th Cir. 2012) (quoting Bell v. Hood, 327 U.S. 678, 682–83 (1946)); see also

4 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of

5 N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974) (“Dismissal for lack of subject-matter

6 jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so

7 insubstantial, implausible, foreclosed by prior decisions of th[e Supreme] Court, or otherwise

8 completely devoid of merit as not to involve a federal controversy.’”)). The district court can

9 look to the pleadings and may review additional evidence without converting the motion into one

10 for summary judgment. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (citing

11 Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983)).

12 B. Federal Rule of Civil Procedure 15(a)(2) – Leave to Amend Complaint

13 Federal Rule of Civil Procedure 15(a)(2) requires opposing party’s written consent or the

14 court’s leave to amend the Complaint. See Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) instructs that

15 “[t]he court should freely give leave [to amend] when justice so requires.” Id.

16 Courts within the Ninth Circuit interpret and apply Rule 15(a)’s policy with “extreme

17 liberality,” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003),

18 especially when the plaintiff is pro se and lacks the experience and guidance of counsel to avoid

19 pleading errors. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). In making such

20 determination, courts consider the following factors: (1) undue delay; (2) bad faith; (3) futility of

21 amendment; and (4) prejudice to the opposing party. Sharkey v. O’Neal, 778 F.3d 767, 774 (9th

22 Cir. 2015) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

23 III. ANALYSIS

24 As discussed below, Plaintiff has not established federal question jurisdiction for two

25 reasons.4 First, the existence of a U.S. land patent alone does not confer federal question

26

4 Defendant’s motion to dismiss does not address Plaintiff’s claims under 18 U.S.C. § 242.

27 However, because 18 U.S.C. § 242 does not provide a private right of action, it cannot be the

basis for federal question jurisdiction in this case. See Aldabe v. Aldabe, 616 F.2d 1089, 1092,

28 (9th Cir. 1980) (holding there is no private right of action under § 242).

1 jurisdiction. Second, Plaintiff’s constitutional claims—apparently based on no more than

2 Defendant’s recording of a deed in 1873—are so insubstantial that they fail to establish a basis for

3 federal question jurisdiction. Plaintiff’s motion for leave to amend should be denied because the

4 proposed amended complaint does not cure these deficiencies.

5 A. Land Patents

6 To the extent Plaintiff seeks to establish subject-matter jurisdiction through the mere

7 existence of a U.S. land patent transferring public land to Plaintiff’s predecessor, Evans,

8 Defendant is correct that the land patent alone will not suffice. A land patent is a document used

9 by the government to transfer ownership of public land to a private person. Land patent, Black’s

10 Law Dictionary (12th ed. 2024). The United States Supreme Court, the Ninth Circuit, and this

11 Court have clearly stated that federal land patents and acts of Congress alone do not provide

12 bases for federal question jurisdiction. See Shulthis v. McDougal, 225 U.S. 561, 569–70 (1912)

13 (“[A] controversy in respect of lands has never been regarded as presenting a Federal question

14 merely because one of the parties to it has derived his title under an act of Congress.”) (emphasis

15 added); Oneida Indian Nation, 414 U.S. at 675-78 (“Once patent issues, the incidents of

16 ownership are, for the most part, matters of local property law to be vindicated in local courts,

17 and in such situations it is normally insufficient for ‘arising under’ jurisdiction merely to allege

18 that ownership or possession is claimed under a United States patent.”) (emphasis added); Virgin

19 v. County of San Luis Obispo, 201 F.3d 1141, 1143 (9th Cir. 2000) (per curiam) (citing Shulthis,

20 225 U.S. at 569-570 and Oneida Indian Nation, 414 U.S. at 676-77); Brainard v. Willmon, No.

21 1:10-CV-01126, 2010 WL 3768140, at *5 (E.D. Cal. Sept. 22, 2010) (same). However, because

22 Plaintiff presents other bases for federal question jurisdiction, specifically § 1983 and various

23 constitutional provisions, the conclusion here—that the U.S. land patent in this case does not

24 confer federal question jurisdiction—does not conclude the analysis. See Daniels v. United

25 States, No. 17-cv-1598 C, 2018 WL 1664476, at *8 (Fed. Cl. Apr. 6, 2018) (explaining that for

26 federal jurisdiction to exist in a case relating to a land patent, the complaint needs to identify a

27 substantive source of law, for example, the Fifth Amendment, that has been violated).

28 ////

1 B. Constitutional Claims

2 1. Supremacy Clause

3 Plaintiff appears to argue that the Supremacy Clause is an independent basis for federal

4 question jurisdiction in this case. ECF No. 1 at 4. However, the Supremacy Clause only “creates

5 a rule of decision” that “instructs the courts what to do when state and federal law clash.”

6 Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324-25 (2015). Thus, to assert

7 federal question jurisdiction under the Supremacy Clause, a plaintiff must identify a state law,

8 regulation, or action that conflicts with federal law. See Virgin, 201 F.3d at 1144-45. Where the

9 plaintiff fails to identify such laws, federal question jurisdiction does not attach. Id. (finding no

10 federal question jurisdiction under the Supremacy Clause where plaintiff did not cite any

11 applicable federal law that could preempt the applicable county ordinance or state regulation).

12 In this action, Plaintiff has identified no federal law that allegedly preempts state law or

13 regulation. ECF No. 1 at 3-4. In fact, Plaintiff has not even identified a state law or regulation

14 that is allegedly preempted. Id. From what the Court can deduce, Plaintiff’s allegation is that the

15 Defendant’s act of recording the deed in question is preempted by the federal land patent. But the

16 mere fact that Plaintiff’s predecessors were originally granted ownership of land pursuant to

17 federal authority in no way suggests that those predecessors were prohibited from subsequently

18 conveying that land through a process established by state law. Moreover, Plaintiff cannot simply

19 repackage a claim based on a U.S. land patent—which, as stated above, does not establish federal

20 question jurisdiction—as a Supremacy Clause claim in order to establish federal question

21 jurisdiction.

22 2. Fifth and Fourteenth Amendment Due Process Clauses

23 The Complaint states that federal question jurisdiction is appropriate under 28 U.S.C.

24 § 1331 because this case raises constitutional questions under the Fifth and Fourteenth

25 Amendment Due Process Clauses. ECF No. 1 at 2-4. This argument fails for various reasons.

26 First, Defendant is correct that the Fifth Amendment Due Process Clause does not apply

27 to state or local governments. See Castillo v. McFadden, 399 F.3d 993, 1002 n. 5 (9th Cir. 2005)

28 (“The Fifth Amendment prohibits the federal government from depriving persons of due process,

1 while the Fourteenth Amendment explicitly prohibits deprivations without due process by the

2 several States: ‘nor shall any State deprive any person of life, liberty, or property, without due

3 process of law.’” (quoting U.S. CONST. amend. XIV) (emphasis in original)).

4 Second, because on the face of the Complaint the Fourteenth Amendment claim is wholly

5 devoid of merit, no federal question jurisdiction attaches to that claim. See Selck v. Law Offices

6 of Brandan Leibrock, No. 2:23-cv-01031 TLN AC, 2023 WL 3794404, at *2 (“Because there is

7 no cognizable federal claim identified in the complaint, and the parties do not appear to be

8 diverse, the undersigned believes there is no federal jurisdiction.”); see also Celece v. Dunn

9 School, No. CV 20-10139 GW (PVCx), 2020 WL 6802027, at *5 (C.D. Cal. Nov. 19, 2020)

10 (alleged Fourteenth Amendment violations that “were not committed by government actors” does

11 not “provide basis for federal question jurisdiction”).

12 The Fourteenth Amendment Due Process Clause prohibits state action that deprives a

13 person of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1.

14 Thus, to state a claim under the Fourteenth Amendment, Plaintiff must show that it was state

15 action that deprived him of due process. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978);

16 Apao v. Bank of New York, 324 F.3d 1091, 1095 (9th Cir. 2003). The test for state action is “not

17 state involvement, but rather is significant state involvement.” Adams v. Southern California

18 First Nat. Bank, 492 F.2d 324, 330, n.14 (9th Cir. 1973). The use of a state process by private

19 parties “without the overt, significant assistance of state officials” cannot “properly be considered

20 state action.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 54 (1999) (internal quotations and

21 citation omitted).

22 Here, the alleged state involvement—Defendant recording of a deed—is not significant.

23 “If this constitutes state action then the recording of all real property deeds . . . would be the basis

24 for Fourteenth Amendment state action subject to review in the federal courts.” Shirley v. State

25 Nat. Bank of Connecticut, 493 F.2d 739, 743 n. 5 (2d Cir. 1974); see also Parks v. “Mr. Ford”,

26 556 F.2d 132, 140-41 (3d Cir. 1977) (“If the role played by state employees in issuing new

27 certificates of title to garagemen who foreclose on their liens were enough to infuse those

28 foreclosures with state action, then obviously there would be state action as well whenever a new

1 or used car is purchased and a new certificate of title is issued.”). The recording of a private

2 property interest “is precisely the type of [m]ere approval of or acquiescence in the initiatives of a

3 private party that … does not constitute state action for purposes of § 1983.” Daimler Trust v.

4 Prestige Annapolis LLC, No. 16-cv-544, 2016 WL 3162817, *14 (D. Md., June 7, 2016) (quoting

5 Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 (4th Cir. 2009) (quotations omitted).

6 It cannot be that the “negligible role of record-keeping” constitutes state action simply because

7 state employees participate. Parks, 556 F.2d at 141. “To hold that the state, by recognizing the

8 legal effects of [private] arrangements, converts them into state acts for constitutional purposes

9 would effectively erase to a significant extent the constitutional line between private and state

10 action and subject to judicial scrutiny under the Fourteenth Amendment virtually all private

11 arrangements that purport to have binding legal effect.” Barrera v. Sec. Bldg. & Inv. Corp., 519

12 F.2d 1166, 1170 (5th Cir. 1975). Accordingly, the Fourteenth Amendment claim cannot be the

13 basis of subject matter jurisdiction in this case.

14 3. Fifth Amendment Takings Clause

15 Plaintiff alleges that by depriving Plaintiff of his property without just compensation, the

16 Defendant violated the Fifth Amendment to the U.S. Constitution. ECF No. 1 at 2. Defendant’s

17 motion to dismiss does not appear to address this Fifth Amendment’s Takings Clause and focuses

18 only on the Fifth Amendment’s Due Process Clause. Nonetheless, because the issue is federal-

19 question jurisdiction and Plaintiff would need this claim to survive this motion, the Court briefly

20 addresses this claim.

21 Plaintiff is correct that a property owner can bring a Takings Clause claim to federal court

22 under 42 U.S.C. § 1983 when “a local government takes private property without paying for it.”

23 ECF No. 10 at 6 (citing Knick v. Township of Scott, Pennsylvania, 588 U.S. 180, 189 (2019)); see

24 Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1198 (9th Cir. 1998) (“[T]he Takings

25 Clause has long been held to apply to the States through the Due Process Clause of the Fourteenth

26 Amendment.”). However, Plaintiff’s Takings Clause claim fails for the similar reasons his due

27 process claim fails: Plaintiff has not alleged state action. Plaintiff has also not alleged that his

28 predecessor’s property was taken for public use, as opposed to being conveyed to another private

1 individual. Plaintiff’s claim under the Takings Clause is accordingly so meritless that it too fails

2 to establish federal jurisdiction.

3 C. Plaintiff’s Motion for Leave to File an Amended Complaint

4 While Defendant’s motion to dismiss was pending, Plaintiff sought leave to file an

5 amended complaint. ECF No. 15. Plaintiff’s proposed amended complaint would add ten “Doe”

6 defendants, a Fourth Amendment “unlawful seizure” claim, and several state law causes of

7 action. Plaintiff claims that he should be allowed to amend the complaint because “new

8 evidence,” “specifically [a] witness report,” supports his “fraud allegations.” Id. at 2. Plaintiff

9 also claims amendment is warranted due to “recent legal developments,” but cites only to cases

10 decided from the 1970s to 2005. Id. at 2-3. Finally, Plaintiff claims that the “new evidence”

11 “demonstrates that the Defendants were directly involved in the Taking of Ps’ property.” Id. at 3.

12 The motion to file an amended complaint should be denied because the proposed amended

13 complaint, like the original complaint, fails to establish federal jurisdiction. The amended

14 complaint does not demonstrate the state action that is a prerequisite for the existence of a

15 constitutional claim. As relevant here, the only purportedly new fact regarding state action in the

16 proposed amended complaint is that, “County of Merced failed to follow proper procedures to

17 verify the authenticity of the Fraudulent Deed before recording it.” ECF No. 15 at 13. But that

18 fact is pleaded as to a state law negligence claim and, in any event, the failure to follow standard

19 operating procedures would not turn the recording of a private agreement into state action. See,

20 e.g., Sharp v. Becerra, 393 F.Supp.3d 991, 997 (E.D. Cal. 2019) (noting that “[m]ere negligence

21 does not suffice” to establish a due process violation when it comes to regulatory activities).

22 Because the proposed new constitutional claim—an alleged unlawful seizure under the

23 Fourth Amendment—is also based on recording the deed (ECF No. 15 at 11), it fares no better

24 than the other constitutional claims. That proposed Fourth Amendment claim also fails to

25 establish federal jurisdiction, at a minimum, based on an absence of meaningful state action.

26 Plaintiff also does not include specific allegations about the supposed “witness report”

27 that purportedly demonstrates fraud in the recording of the deed in 1973. It is hard to imagine

28 what such a report would involve, more than 150 years after the incident in question. In any

1 event, the bald allegation that such a report exists, without any detail, does nothing to strengthen

2 Plaintiff’s claims or the basis for federal jurisdiction.

3 The other new claims in the proposed amended complaint are state law claims. Given the

4 absence of diversity of citizenship, those claims also cannot establish federal jurisdiction.

5 IV. LEAVE TO AMEND

6 Defendant argues in its motion to dismiss and reply that Plaintiff should not be granted

7 leave to amend because amendment would be futile. See ECF No. 7-1 at 6; ECF No. 11 at 4.

8 Plaintiff argues that he should be granted leave to amend to cure any deficiencies in his

9 complaint. ECF No. 10 at 7. As explained below, even assuming Plaintiff could overcome

10 multiple other obstacles to establishing federal jurisdiction and stating a claim on which relief

11 could be granted, amendment would be futile because Plaintiff is effectively seeking to vindicate

12 the rights of third parties—his ancestors—and his alleged injuries are too speculative to establish

13 standing to sue. See Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018)

14 (amendment is futile when no set of facts by amendment could present a valid or sufficient

15 claim); see also Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir.

16 1999) (“Where the legal basis for a cause of action is tenuous, futility supports the refusal to grant

17 leave to amend.”)

18 There are several reasons to believe that amendment would be futile. First, this action

19 concerns events that occurred more than 150 years ago, ECF No. 1 at 11, and it is extraordinarily

20 likely to be time barred. The statute of limitations for any Section 1983 claims is two years. See

21 Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (although the

22 accrual date of a claim is governed by federal law, the statute of limitations to bring a § 1983

23 claim is based on the forum state’s statute of limitations for personal injury actions); Cal Civ.

24 Proc. Code § 335.1 (two-year statute of limitations for personal injury cases). There are no

25 meaningful allegations regarding when plaintiff knew or had reason to know of the alleged injury

26 or whether facts exist to toll the statute of limitations or estop the Defendant from asserting the

27 ////

28 ////

1 statute of limitations as an affirmative defense.5 See Lukovsky v. City and County of San

2 Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (quoting TwoRivers v. Lewis, 174 F.3d 987, 991

3 (9th Cir. 1999) (“Under federal law, a claim accrues ‘when the plaintiff knows or has reason to

4 know that the injury which is the basis of the action.’”)); id. at 1051 (the statute of limitations can

5 be toll or estopped under equitable tolling and equitable estoppel, respectively).

6 Second, setting aside timeliness issues, in his proposed amended complaint, Plaintiff has

7 not shown state action, has not shown that Defendant had a policy and practice of unlawfully

8 recording deeds such that Monell liability would attach, and has not shown that Defendant’s

9 conduct was so egregious that it violated due process. These are all things Plaintiff would have to

10 adequately allege in order to establish federal jurisdiction and state a claim on which relief could

11 be granted. As described above, Plaintiff would have to plead facts showing Defendant did more

12 than just record a property transaction in order to establish the state action requirement under

13 Section 1983. Moreover, under Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658

14 (1978), “[a] government entity may not be held liable under 42 U.S.C. § 1983, unless a policy,

15 practice, or custom of the entity can be shown to be a moving force behind a violation of

16 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing

17 Monell, 436 U.S. at 694). Finally, while the constitutional right to due process is flexible and

18 expansive when it comes to protected property interests, Plaintiff would have to allege more than

19 Defendant’s negligence in recording a fraudulent deed in order to state a due process claim. See

20 Sharp, 393 F.Supp.3d at 997; Davidson v. Cannon, 474 U.S. 344, 347-48 (1986) (“lack of care

21 simply does not approach the sort of abusive government conduct that the Due Process Clause

22 was designed to prevent”).

23 Third, Plaintiff does not have standing to challenge the alleged constitutional harm that

24 was done to his ancestors. A plaintiff generally must assert his own legal rights and cannot assert

25 the legal rights of a third-party. See, e.g., Powers v. Ohio, 499 U.S. 400, 410 (1991). In

26

27 5 Plaintiff’s motion for leave to amend indicates he discovered the alleged fraud on May 11,

2023, though that cannot be correct because he wrote a letter to Defendant on May 7, 2023

28 complaining of the same.

1 determining whether a plaintiff who asserts the legal rights of a third-party may do so, courts

2 apply a two-part inquiry. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623

3 n. 3 (1989). First, the plaintiff must have personally suffered some injury-in-fact adequate to

4 satisfy Article III’s case or controversy requirement. Second, certain prudential considerations

5 must point in favor of permitting the litigant to assert the third-party’s legal rights. See Caplin,

6 491 U.S. at 623 n. 3. Among the prudential considerations to consider are the requirements that

7 the litigant must have a legally sufficient relation to the third-party, see Powers, 499 U.S. at 411,

8 and there must exist some hindrance to the third-party’s ability to protect his or her own rights, id.

9 at 411.

10 In this case, any injury-in-fact to Plaintiff is too attenuated to satisfy Article III standing.

11 For Plaintiff to show such injury-in-fact, the court would have to assume that over the century-

12 and-a-half since the allegedly unlawful transfer, no further transfer of the land in question would

13 have been made by Plaintiff’s other ancestors. While it is possible that the many generations

14 from 1873 to the present would have done nothing with that land, that is too speculative a

15 conclusion to provide a basis for an injury to Plaintiff. See, e.g., McConnell v. FEC, 540 U.S. 93,

16 225–26 (2003). Moreover, prudential considerations weigh against allowing Plaintiff to seek to

17 vindicate the rights of his ancestors. Given that all witnesses are long deceased, it will be

18 difficult, if not impossible, to fairly adjudicate any claim regarding the legality of the transfer.

19 Further, Plaintiff has not alleged that any hindrance existed to his ancestors’ ability to have

20 protected their own rights at some point closer in time to the events in question. On this score, it

21 is worth noting that the Court has been unable to identify a single case sustaining a Section 1983

22 claim based on remotely similar conduct that occurred generations before the case was filed.6

23 Plaintiff could hypothetically overcome some of these obstacles to establishing federal

24 jurisdiction and stating a claim. In particular, it is perhaps not completely inconceivable that

25 6 Litigation over ancestral harms has occurred at times in federal courts, particularly in the

26 context of plaintiffs seeking reparations for slavery and seeking redress for the dispossession of

Native Americans. While the undersigned does not necessarily agree with the reasoning adopted

27 in those cases or their outcomes, those cases are not discussed here because the instant action by a

single plaintiff concerning a run-of-the-mill property dispute—as opposed to a sequence of world

28 historic wrongs—is distinguishable in any event.

1 | Plaintiff could plead facts showing (1) that this action concerning events that occurred more than

2 | 150 years ago is timely, based on equitable tolling or some other equitable timeliness doctrine, (2)

3 || that there was state action, because Defendant did more than passively record a deed, (3) that

4 | Defendant had a contemporaneous policy and practice of unlawfully recording deeds such that

5 || Monell liability could attach, and (4) that Defendant’s conduct was so egregious that it violated

6 || due process. However, even then, Plaintiff could not establish federal jurisdiction, because the

7 || alleged constitutional injury was perpetrated against his ancestors and any supposed injury to

8 | Plaintiff some 150 years later would be too speculative to establish standing.

9 V. CONCLUSION

10 Accordingly, the undersigned recommends that:

11 1. Defendant’s Motion to Dismiss (ECF No. 7) be GRANTED;

12 2. Plaintiff's Motion to File an Amended Complaint (ECF No. 15) be DENIED;

13 3. Plaintiff's Complaint (ECF No. 1) be DISMISSED with prejudice, given the futility of

14 | amendment.

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

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

17 || days after being served with these findings and recommendations, either party may file written

18 | objections with the court. Such document should be captioned “Objections to Magistrate Judge’s

19 | Findings and Recommendations.” Local Rule 304(d). The parties are advised that failure to file

20 | objections within the specified time may waive the right to appeal the District Court’s order.

21 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

22 || DATED: January 3, 2025

fork

24

SEAN C. RIORDAN

25 UNITED STATES MAGISTRATE JUDGE

26

27

28

14