Opinion
No. CV 09-01355-GAF (VBK)
05-07-2010
PAUL F. RADKE, Plaintiff, v. RANDY HOLBROOK, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Gary A. Feess, United States District Judge, pursuant to 28 U.S.C. §636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On February 25, 2009, Paul F. Radke (hereinafter referred to as "Plaintiff") filed a "Complaint for Money Damages; Injunctive Relief (Exhibit BB page 22) and Other Relief Against Defendants for Contemptuous/Treasonous Actions ... 'Under Color of Authority.'" Plaintiff named as Defendants Randy Holbrook, individually and a.k.a. Sergeant ("Sgt.") Holbrook; Maria Hannah, individually and a.k.a Lieutenant ("Lt.") Hannah; Patrice Pickens, individually and a.k.a. Senior Deputy Pickens; Mike Torres, individually and a.k.a. Sgt. Torres; John Fernandez, individually and a.k.a. Sgt. Fernandez; Carrie E. Cox, individually and a.k.a. Sgt. Cox; Michael Gaston, individually and a.k.a. Deputy Gaston; Daniel Kahlil, individually; Reuben Yeroushalmi, individually; Isas Vasquez, individually and a.k.a. Deputy Vasquez; Brian K. Andrews, individually; JJH Palmdale LLC; and Does 1-10.
Plaintiff also filed an "Ex Parte Application for a Temporary Restraining Order." On February 26, 2009, United States District Judge Gary A. Feess issued an Order denying Plaintiff's Application for a Temporary Restraining Order.
On March 2, 2009, United States Magistrate Judge Victor B. Kenton issued an initiating Order and Minute Order ordering Plaintiff to file Proof of Service upon Defendants within 120 days from the filing of the Complaint.
On March 19, 2009, Plaintiff filed a "First Amended Complaint."
Plaintiff filed "Judicial Notices" on March 27, 2009, April 28, 2009, May 5, 2009 and June 1, 2009.
On September 8, 2009, Plaintiff filed a "First Amended Request for Judicial Notice." On September 29, 2009 and October 7, 2009, Plaintiff filed "Emergency Judicial Notices."
On October 14, 2009, the Court issued a Minute Order ordering Plaintiff to file Proofs of Service within 21 days indicating that Defendants had been properly served with copies of the Summons and First Amended Complaint in compliance with Fed.R.Civ.P. Rule 4(m). Plaintiff was warned that failure to abide by the Court's Orders may result in a recommendation of dismissal.
On October 15, 2009 and October 21, 2009, Plaintiff filed requests for "Emergency Judicial Notice."
On November 3, 2009, Plaintiff filed a "Request for an Alias Summons and Additional Time to Serve Pursuant to Fed.R.Civ.P. Rule 4(m) for Cause."
On November 20, 2009, the Court issued a Minute Order granting Plaintiff's request for an Order for an Alias Summons and granting Plaintiff 30 days from the date of the Minute Order in which to serve Defendants with a copy of the Summons and First Amended Complaint.
On December 22, 2009, Plaintiff filed "Proofs of Service" with the Court on Defendants John Fernandez, Marie Hannah, Los Angeles County Sheriff's Department, and Mike Torres.
On January 13, 2010, Defendants Sgt. John Fernandez, Lt. Marie Hannah and Sgt. Mike Torres filed a "Notice of Motion and Motion to Dismiss for Lack of Jurisdiction; Failure to State a Claim upon Which Relief Can Be Granted; or in the Alternative, Motion for a More Definitive Statement; Memorandum of Law." Defendants also filed a "Request for Judicial Notice re Motion to Dismiss for Lack of Jurisdiction; Failure to State a Claim upon Which Relief Can Be Granted; or in the Alternative, Motion for a More Definitive Statement; Memorandum of Law."
On January 15, 2010, the Court issued a Minute Order taking the hearing date off-calendar and ordering Plaintiff to file an Opposition or Statement of Non-Opposition within 21 days of the date of the Minute Order.
On January 22, 2010, Defendant Sgt. Randy Holbrook filed a "Joinder in Motion to Dismiss for Lack of Jurisdiction; Failure to State a Claim upon Which Relief Can Be Granted; or in the Alternative, Motion for a More Definitive Statement; Memorandum of Law."
On February 5, 2010, Plaintiff filed a document entitled "Judicial Notice."
On February 9, 2010, Plaintiff filed a document entitled "Proof of Service/Evidence of Delivery of 'Emergency Judicial Notice.'"
On February 10, 2010, Defendants filed a document entitled "Los Angeles County Defendants' Objections and Request to Strike Plaintiff's 'Emergency Judicial Notice' [Docket Nos. 46 and 47] for Violations of F.R.C.P. Rule 11."
Defendants contend that the Court should strike Plaintiff's "Emergency Judicial Notice" filed on February 5, 2010 and February 9, 2010 on the grounds that it violates Fed.R.Civ.P. Rule 11. Defendants also contend that the documents should be stricken as they are not signed by any party to this action; the legal contentions are not warranted under existing law as they pertain to other parties in a California Superior Court case, and no parties to this action; there is no evidentiary support specified or identified for the contentions raised in the documents; and the documents are not presented for a proper purpose.
The Court HEREBY GRANTS Defendants' Request to Strike Plaintiff's documents filed on February 5, 2010 and February 9, 2010. (Docket Nos. 46 and 47.)
On February 11, 2010, Plaintiff filed a "Request for Entry of Default by Clerk Against Defendant 'Doe No. 1 Los Angeles County Sheriff Department.'"
On February 12, 2010, Plaintiff filed an "Emergency Judicial Notice" which contained documents relating to a person named Carlos Villareal. Wells Fargo Bank N.A. apparently filed a foreclosure action against Mr. Villareal and a "Notice to Vacate" and "Writ of Possession of Real Property" were issued by the California Superior Court.
On February 17, 2010, Plaintiff filed a "Notice of 'Errata' in re First Amended Complaint: (1) misstated California Civil Code of Procedure 526a/Incorrectly Stated as CCP 356a; (2) CCP 526a Provides for Herein Action as to Defendants ... All of Them (i.e. 'State Actors')."
On February 26, 2010, Plaintiff filed an "Emergency Judicial Notice."
The Court takes judicial notice of its own files and records and notes that Plaintiff's "Emergency Judicial Notices" involve other unlawful detainer actions filed in the Los Angeles County Superior Court, Case Nos. 09L02816, 09U18182, 10U01610, 10L00221, and 10U00391 which involve different parties.
On March 3, 2010, Plaintiff filed an "Emergency Judicial Notice."
On March 9, 2010, Plaintiff filed an "Emergency Judicial Notice."
On March 25, 2010, Plaintiff filed an "Emergency Judicial Notice."
On April 20, 2010, Plaintiff filed an "Emergency Judicial Notice."
On May 3, 2010, Plaintiff filed an "Emergency Judicial Notice."
Having reviewed the allegations contained in the First Amended Complaint, Defendants' Motion to Dismiss and Request for Judicial Notice, and the matters set forth in the record herein, the Court hereby recommends that the Motion to Dismiss be granted and the First Amended Complaint be dismissed with prejudice.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff alleges that "Plaintiffs 'Paul' and 'Herd' bring this Complaint against each Defendant and all of them for their illegal claims/actions perpetrated against the Plaintiffs." (First Amended Complaint at 8.) Plaintiff alleges that all of the named Defendants conducted a non-judicial foreclosure of commercial property located at 1776 East Century Blvd., Los Angeles, California 90002, which was owned by Plaintiff's landlord, the Herd Community Development Corporation (hereafter, "Herd CDC"). (First Amended Complaint at 9.) Following the foreclosure, an alleged unlawful detainer action commenced in the Los Angeles Superior Court under Case Nos. BC382991 and BC400604. The First Amended Complaint alleges that on March 6, 2008 and again on March 17, 2009, all Defendants allegedly forcibly entered the subject property and evicted the occupants. (Id.) The First Amended Complaint further alleges that all Defendants "sought to wrongfully take title to real property by false representations to public recorders offices." (Id. at 11.)
Plaintiff alleges that Defendants violated the Federal Civil Rights Act and violated the automatic stay in bankruptcy. Defendants also illegally enforced a void ab initio notice to vacate the real property located at 1776 Century Blvd., Los Angeles, California and then vandalized, stole personal property and violated Plaintiff's civil rights. (Id. at 12.)
Plaintiff alleges that Defendant Randy Holbrook and co-defendants conspired with one another regarding void documents issued from an unlawful detainer case knowing that title to the real property was in dispute and that subject matter jurisdiction was exclusively within the Federal Bankruptcy Court. (Id. at 13.) Plaintiff also alleges that Defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO") statutes through a pattern of racketeering activity. (Id. at 15.)
Plaintiff alleges that "the filings and recordings in regard to the Plaintiff's property" were in violation of the "automatic stay." (Id. at 16.) Plaintiff alleges that Defendants acted with law enforcement officers in violation of California Business and Professions Code, State Bar rules and have caused harm to Plaintiff. (Id. at 16-17.) Plaintiffs "Paul" and "Herd" request the Court to permanently enjoin "Defendants, their employees, agents or others acting on their behalf from any further acts or omissions depriving the Plaintiff(s) from the peaceful enjoyment of civil rights and equal protection of the laws as provided in the United States Constitution and the California Constitution." Defendants are consistently "committing acts and/or in the process of engaging in an organized crime Mafioso-type enterprise/organization where they willfully are engaging in thuggery, wanton destruction of property." (Id. at 17-18.)
Plaintiff requests an Order compelling Defendants to comply with California and Federal laws and constitutional commands regarding all provisions of California Civil Code regarding non-judicial foreclosure including but not limited to all new laws as of July 2008; an Order for monetary damages in the amount not less than $200,000.00; an Order granting injunctive relief to prohibit Defendants from violating Plaintiff's civil rights under color of law; to prohibit criminal law enforcement from practicing bankruptcy/civil law without subject matter jurisdiction; to prohibit real estate brokers/salespersons from acting as proxy lawyers for undercover California State Bar licensed attorneys; to prohibit employees of the California Superior Court including clerical staff, Commissioners, Sheriff and Sheriff's Deputies, and Judges from violating any automatic stay issued by the United States Bankruptcy Court; to order the false, fraudulent and fictitious filings and illegally obtained "specious" documents to be expunged from the official records of the Court and County Recorders offices; and for attorney's fees and costs of suit. (Id. at 18-20.)
PLAINTIFF'S CAUSES OF ACTION
The First Amended Complaint contains the following claims: (1) violation of bankruptcy automatic stay; (2) Ultra Vires Acts with notice (actual) lack of subject matter jurisdiction;" (3) violations of 42 U.S.C. §§1983, 1985, 1986, as well as the Fourth, Thirteenth and Fourteenth Amendments; (4) violation of California Code of Civil Procedure 356, et al., illegal expenditure of public tax dollars; (5) violation of Equal Protection Clause; (6) violation of civil/criminal RICO; (7) violation of state and federal law by practicing law without a license; (8) violation of limitations contained within state real estate licensing statutes and oath taken therein; (9) illegal ex parte conspiracy between Defendant(s) and/or their licensed or unlicensed agent(s) at the detriment of Plaintiff(s) right to due process, et al.; (10) relief by order(s) to expunge from the Court and County Recorder's office(s) void ab initio orders/filings/pleadings/acts; and (11) request for injunctive relief (protecting Plaintiff's constitutional rights being deprived by alleged government agents, et. alia under 'color of authority...'." (See First Amended Complaint at 4-5.)
DEFENDANTS' MOTION TO DISMISS
Defendants move to the dismiss the entire action on the following grounds: (1) Plaintiff failed to properly serve the Amended Complaint; (2) Plaintiff lacks standing to allege violations of an automatic stay in bankruptcy on behalf of the Herd CDC; (3) there are no facts alleged which invoke federal subject matter jurisdiction; (4) the Amended Complaint fails to state a claim for relief; and (5) the Amended Complaint is hopelessly vague and requires a more definitive statement.
Plaintiff has failed to file an Opposition to Defendants' Motion to Dismiss.
Local Rule 7-12 provides that the failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion. While Plaintiff failed to file an Opposition, which is grounds for granting Defendants' Motion to Dismiss, the Court will address the merits of the Defendants Motion to Dismiss the First Amended Complaint.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99 (1957) abrogated on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007); Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007).
Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim upon which relief can be granted, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965 (citations and quotations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citations omitted). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 1969 (abrogating a literal reading of the oft-quoted statement in Conley v. Gibson, 355 U.S. at 45-46 ("a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief")). Dismissal is appropriate on a Rule 12(b)(6) motion if the facts alleged do not state a claim to relief that is "plausible on its face." Id. at 1974. Dismissal without leave to amend is appropriate when it is clear that the deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).
Pro se pleadings are liberally construed. Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996). Generally, review is limited to the contents of the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997). Also, a court may take judicial notice of "matters of public record" without converting a motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party. Clegg v. Cult Awareness Network, 18 F.3d at 754. "The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citations omitted), amended by 275 F.3d 1187 (2001). A plaintiff's civil rights claim can be "fatally undermined" by the attachments to his complaint. Id.
In determining the existence of subject matter jurisdiction, a court may review evidence beyond the complaint without converting the motion into one for summary judgment. See Gentel Corp. v. Community Redevelopment Agency, 23 F.3d 1542, 1544 n.1 (9th Cir. 1994); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1998)(a "court may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction"); Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). Thus, in accordance with Fed.R.Evid. 201(b) and (d) and pursuant to the requests of the parties, the Court has taken judicial notice of the pleadings and orders in the underlying state court cases that have been submitted by the parties. See Biggs v. Terhune, 334 F.3d 910, 916 n.3 (9th Cir. 2003)("Materials from a proceeding in another tribunal are appropriate for judicial notice."); Papai v. Harbor Tug and Barge Co., 67 F.3d 203, 207 n.5 (9th Cir. 1995), rev'd on other grounds, 520 U.S. 548 (1997)(taking judicial notice of a decision and order of an Administrative Law Judge); United States ex rel. Robinson Rancheria Citizens' Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (taking judicial notice of a state court opinion).
For purposes of deciding Defendants' Motion to Dismiss, the Court does not take judicial notice of the truth of the facts in any of the state court pleadings or orders. As discussed below, the Court need only take judicial notice of the scope of the issues in the state court actions in order to decide whether the claims raised by Plaintiff herein are barred under the Rooker-Feldman doctrine. See Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir. 2003)(noting that "[F]actual findings in one case ordinarily are not admissible for their truth in another case"), cert. denied, 124 S.Ct. 50 (2003).
DISCUSSION
For all of the following reasons, Defendants' Motions to Dismiss should be granted and the First Amended Complaint should be dismissed.
A. Plaintiff Has Improperly Served Defendants Pursuant to Fed.R.Civ.P. Rule 12(b)(5) .
Fed.R.Civ.P. Rule 12(b)(5) provides that defendants may challenge the sufficiency of service of process by way of a Motion to Dismiss. Fed.R.Civ.P. Rule 4(e) provides that service of a summons and complaint is complete when delivered to the individual personally, delivering a copy to the individual's place of abode, or delivering to an agent authorized by law to receive service of process. Under California law, the Summons and the Complaint can be personally served on the defendant pursuant to Cal.Civ.Proc. Code §415.10 or by substituted service pursuant to Cal.Civ.Proc. Code §415.20. Under §415.20, in lieu of personal delivery, a copy of the Summons and Complaint can be left at the defendant's office during usual office hours, or at his or her usual mailing address if no physical address is known, with the person apparently in charge thereof; or, if the person cannot be personally served with reasonable diligence, by leaving a copy of the Summons and Complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address in the presence of a competent member of the household or person apparently in charge of the office, place of business or usual mailing address. Plaintiff must thereafter mail a copy of the Summons and Complaint by first class mail to the person to be served at the place where the Summons and Complaint were left. Service is not deemed complete until 10 days after a copy of the Summons and Complaint has been mailed to the party. See Cal.Civ.Proc. Code §415.20(a)-(b).
Here, Defendants Lt. Hannah, Sgt. Fernandez and Sgt. Torres were sued in their individual capacities but none of them have been personally served with the Summons and Complaint as required by Rule 4(e). A person acting for the Plaintiff dropped an envelope off at the headquarters of the Los Angeles County Sheriff's Department located at 4700 Ramona Blvd. (See Defendants' Request for Judicial Notice, Ex. A.) Each Proof of Service states that the parties were personally served, then contradicts itself by stating that the person served was actually "Deputy Gordon (Deputy on duty at L.A. County Sheriff Headquarters)." Furthermore, each Proof of Service lists two different times and dates that these individuals were purportedly served - "12/17/2009" and "12-19-2009" at (time): 9:51 a.m. and 3:17 a.m." Based on the "Proofs of Service" filed by the Plaintiff, none of the individual Defendants have been personally served as required by Fed.R.Civ.P. Rule 4(e). Further, any purported substituted service does not comply with either the California or Federal rules: the Proof of Service purporting to show service of the First Amended Complaint on 12/17/2009 and 12/19/2009 does not reflect that a Summons was served with the Complaint and it does not reflect that the papers were ever mailed. Thus, Plaintiff failed to properly serve Defendants with a Summons and a copy of the First Amended Complaint.
B. All Unserved Defendants Are Dismissed Pursuant to Fed.R.Civ.P. Rule 4(m) .
Fed.R.Civ.P. Rule 4(m) provides that if a defendant is not served within 120 days after the complaint has been filed, the Court may on motion or its own, dismiss the action without prejudice against that defendant.
Per a Minute Order on March 2, 2009, Plaintiff was advised that, under Federal Rule of Civil Procedure 4(m), service of the Summons and Complaint had to be accomplished on each named Defendant within 120 days after the filing of the Complaint. Further, Plaintiff expressly was warned that his failure to effectuate proper service by that date might result in the dismissal of the action without prejudice as to any unserved Defendant(s) by reason of Plaintiff's failure to prosecute, unless Plaintiff could show good cause for extending the time for service.
Here, the Court notes that Plaintiff has failed to serve Carrie E. Cox, individually and a.k.a. Sgt. Cox, Michael Gaston, individually and a.k.a. Deputy Gaston, Daniel Kahlil, individually; Reuben Yeroushalmi, individually, Isis Vasquez, individually and a.k.a. Deputy Vasquez, Brian K. Andrews, individually; J. J. H. Palmdale LLC. Plaintiff has failed to show good cause why these Defendants were not served with the Summons and a copy of the First Amended Complaint. As such, these Defendants are dismissed from this action. // //
C. The Court Lacks Subject Matter Jurisdiction.
Plaintiff's first cause of action is brought pursuant to Title 11, U.S.C. §362 for an alleged violation of an automatic stay in bankruptcy. Plaintiff however is not the bankruptcy debtor and has no bankruptcy estate. The bankruptcy debtor according to the First Amended Complaint is the Plaintiff's landlord "Herd CDC;" thus, Plaintiff lacks standing. As Plaintiff is not the bankruptcy debtor, he has no standing to sue for an alleged violation of an automatic stay related to the Herd Corporation's bankruptcy estate. See In re Brooks, 871 F.2d 89, 90 (9th Cir. 1989)(wife had no standing to challenge deed of trust on grounds that it was recorded after husband's bankruptcy petition where wife had not filed petition nor had she joined in husband's petition). The automatic stay applies only to the benefit of the debtor of the bankruptcy estate which is clearly not the Plaintiff in this case. McCartney v. Intergra National Bank North, 106 F.3d 506, 509 (3rd Cir. 1997).
See, First Amended Complaint, p. 8: 23 - p. 9: 8.
Plaintiff's allegations concerning the violation of the automatic stay in a bankruptcy proceeding must be raised in the Bankruptcy Court, or in the California Court of Appeal in a direct appeal. A Federal District Court does not have original jurisdiction over bankruptcy matters. This Court only has jurisdiction over an appeal of a final judgment or order of the Bankruptcy Court. See 28 U.S.C. §158(a)(1) and (3); Duckor Spradling & Metzger v. Baum Trust. (I)n re P. R. T. C., Inc., 177 F.3d 774, 779 (9th Cir. 1999). As such, this claim has no merit.
In order to circumvent this problem of standing, Plaintiff alleges that he brings this suit on his own and on behalf of Herd CDC, his landlord and the alleged bankruptcy debtor. However, this allegation does not cure Plaintiff's lack of standing to sue. First, Plaintiff is not an attorney. Therefore, he is not authorized to practice law in the State of California, not admitted to practice in the United States District Court, and is not authorized to represent "the Herd CDC" in a lawsuit. (California Business and Professions Code §§6125 and 6126.) Second, the Herd CDC appears to be a corporate entity. As such, the corporation can neither practice law nor act in person. Because Plaintiff has no standing to raise any of the alleged claims in this action, the entire action should be dismissed with prejudice.
First Amended Complaint p. 5: 14-16; and p. 8: 12-14.
First Amended Complaint p. 6: 26-27.
D. Plaintiff's First Amended Complaint is Barred by the Rooker-Feldman Doctrine.
Federal District Courts may exercise only original jurisdiction; they may not exercise appellate jurisdiction over state court decisions. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 221 (9th Cir. 1994). This rule arises from the juxtaposition of two statutes: 28 U.S.C. §1331, giving District Courts original jurisdiction over civil actions arising under federal law, and 28 U.S.C. §1257, giving the United States Supreme Court the right to review final judgments rendered by the highest court of a state. Dubinka, 23 F.3d at 221. The rule applies even when the challenge to the state court's decision is based on alleged deprivations of federally protected rights. Allah v. Superior Court, 871 F.2d 887, 891 (9th Cir. 1989).
A federal Plaintiff may not avoid the Rooker-Feldman bar by styling an attack on a state court's ruling as a civil rights action. Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995), cert. denied, 116 S. Ct. 565 (1995); Worldwide Church of God v. McNair, 805 F.2d 888, 893 n. 4. In determining whether a civil rights action is such an attack, the Court must determine whether the federal Plaintiff's claims are "inextricably intertwined" with the state court's ruling. District of Columbia Court of Appeals v. Feldman 460 U.S. 462, 482 n. 16 (1983); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 221 (9th Cir. 1994). A federal claim is inextricably intertwined with the state court's ruling when a district court must scrutinize the state court's application of the law. Dubinka at 222. Put another way, a "federal claim is inextricably intertwined with the state court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring).
Moreover, the Rooker-Feldman doctrine is applicable even if Plaintiff's state court appeals are not final. See Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001)(holding that Rooker-Feldman applies equally to interlocutory state court decisions); Worldwide Church of God, 805 F.2d at 893, n.3. In analyzing whether it has jurisdiction to hear a particular constitutional challenge, a Federal District Court must determine whether plaintiff is attempting to bring a "forbidden de facto appeal." Noel v. Hall, 341 F.3d 1148, 1153 (9th Cir. 2003). Such is the case "[i]f a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision." Id. at 1164.) Further, if a plaintiff is attempting to bring a de facto appeal, plaintiff also is barred from litigating any "issues that are 'inextricably intertwined' with issues in that de facto appeal." Kougasian v. TMSL, Inc., 359 F.3d 1136, 1142 (9th Cir. 2004); see Feldman, 460 U.S. at 483 n.16 (stating that "[I]f the constitutional claims presented to a United States District Court are inextricably intertwined with a state court's [decision], then the District Court is in essence being called upon to review the state court decision").
Here, there is no question that Plaintiff is bringing a de facto appeal of the state court actions that have been decided in favor of the Defendants. Plaintiff alleges that he has been injured by an unlawful detainer judgment issued by the California Superior Court with regard to the subject property located at 1776 Century Blvd., Los Angeles, California 90002. This Court may take judicial notice of the fact that on January 21, 2009, the California Superior Court issued Writ of Possession in Case No. BC400604, commanding the Sheriff of Los Angeles County to take possession of the premises located at 1776 Century Blvd., Los Angeles, California 90002, and deliver the same to "JJH 26 Palmdale, LLC (Reuben Yeroushalmi and Daniel Kahlil)." (See Defendants' Request for Judicial Notice, Ex. B.)
It appears Plaintiff lost his case in Case No. BC400604, which resulted in the eviction. Plaintiff now requests that this Court review and overturn the State Court judgment and orders issued regarding possession of the subject property. Clearly, the Rooker-Feldman Doctrine bars Plaintiff's First Amended Complaint.
E. Plaintiff Has Failed to State a Claim under 42 U.S.C. §1983 .
In order to state a claim under section 1983, a plaintiff must allege that: (1) the defendants were acting under color of state law at the time the complained of acts were committed; and (2) the defendants' conduct deprived plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986). Liability under section 1983 is predicated upon an affirmative link or connection between the defendants' actions and the claimed deprivations. See Rizzo v. Goode, 423 U.S. 362, 372-73 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
"A person deprives another of a constitutional right, where that person "does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made." [citation] Indeed, the "requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." [citation]Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d at 743-44).
As best as the Court can glean from the allegations of the First Amended Complaint, Plaintiff alleges he was an occupant of commercial property formerly owned by Herd CDC. The commercial property housed organizations that provided a full range of social services and served hundreds of families. (First Amended Complaint at 9.) It appears the subject property was sold in a foreclosure sale. Plaintiff's allegations seem to be that the subject property was wrongfully foreclosed upon, in violation of an automatic bankruptcy stay and that Plaintiff was wrongfully evicted. In early March 2008, creditors of the former owner Herd CDC filed an unlawful detainer action against Plaintiff and the other occupants of the subject property in California Superior Court. The Court issued a Writ of Possession of Real Property in favor of the creditors. (Exhibit ["Ex."] BB [Writ of Possession].) Plaintiff and the other occupants were ordered to vacate the subject property by February 2, 2009. (See Id. [Los Angeles Sheriff's Department Notice to Vacate].)
Plaintiff argues with no further explanation that the unlawful detainer action was "illegal" because it was commenced in violation of an automatic stay issued by a federal bankruptcy court. In addition, Plaintiff alleges that a group of over a dozen Defendants, consisting mostly of law enforcement officers, have broken several state and federal laws in the process of evicting Plaintiff and foreclosing upon the subject property. (See First Amended Complaint at 1-20.)
The First Amended Complaint lists claims under 42 U.S.C. §§1983 and 1985, in addition to the Fourth, Thirteenth and Fourteenth Amendments. However, there are absolutely no factual allegations alleged against Defendants Lt. Hannah, Sgt. Fernandez nor Sgt. Torres. In fact, the only place where these Defendants are named is the face page of the pleading and the pages listing the parties. The First Amended Complaint fails to state facts sufficient to form plausible claims against the Defendants. Further, it fails to allege any acts or omissions committed by them. As such, the Motion to Dismiss should be granted and First Amended Complaint should be dismissed. //
F. Plaintiff's State Claims Should Also Be Dismissed.
There is no need for the Court to reach the issue of whether Plaintiff's allegations may be sufficient to state a claim under state law. It follows from the Court's conclusion that it lacks subject matter jurisdiction over Plaintiff's federal civil rights claim that the Court also lacks supplemental jurisdiction over Plaintiff's many state law claims. See 28 U.S.C. §1367(a); Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002)(a district court has no discretion to retain supplemental jurisdiction over state law claims once federal claims have been dismissed for lack of subject matter jurisdiction), cert. denied, 123 S.Ct. 2071 (2003); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001) ("supplemental jurisdiction cannot exist without original jurisdiction"). Consequently, the Court also recommends dismissal of Plaintiff's state law claims for lack of jurisdiction.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting Defendants' Motion to Dismiss; and (3) dismissing Plaintiff's First Amended Complaint and entire action with prejudice. DATED: May 7, 2010
/s/_________
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to timely file Objections as provided in the Local Rules Governing the Duties of the Magistrate Judges, and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.