Opinion
3:21-cv-00382-MMD-WGC
01-06-2022
PRESCOTT H. RATHBORNE, Plaintiff v. BRENDA JONES, et. al., Defendants
REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NOS. 1, 1-1
William G. Cobb United States Magistrate Judge
This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 1) and pro se complaint (ECF No. 1-1).
I. IFP APPLICATION
A person may be granted permission to proceed IFP if the person “submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to all actions filed IFP, not just prisoner actions).
In addition, the Local Rules of Practice for the District of Nevada provide: “Any person who is unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. The application must be made on the form provided by the court and must include a financial affidavit disclosing the applicant's income, assets, expenses, and liabilities.” LSR 1-1.
“[T]he supporting affidavits [must] state the facts as to [the] affiant's poverty with some particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).
A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; therefore, the application should be granted.
II. SCREENING
A. Standard
“[T]he court shall dismiss the case at any time if the court determines that-- (A) the allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii).
Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted).
The court must accept as true the allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation omitted).
A complaint must contain more than a “formulaic recitation of the elements of a cause of action, ” it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more … than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A dismissal should not be without leave to amend unless it is clear from the face of the complaint that the action is frivolous and could not be amended to state a federal claim, or the district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).
B. Plaintiff's Complaint
Plaintiff's complaint is against Mineral County Clerk-Treasurer Christopher Nepper, Sheriff Randy Adams, District Attorney Shawn Rowe, Chief Deputy Brenda Jones and Mineral County. (ECF No. 1-1 at 1-2.) Plaintiff alleges that he has a land patent issued under the Treaty of Guadalupe Hidalgo and Mineral County is wrongfully attempting to auction off his property.
The court lacks jurisdiction over this dispute. Plaintiff states that this is a federal question case, but other than stating he has a land patent, does not cite any federal law or constitutional provision that has been violated. The Ninth Circuit has clearly held that “Federal land patents … do not provide [a] bas[i]s for federal question jurisdiction.” Virgin v. County of San Louis Obispo, 201 F.3d 1141 (9th Cir. 2000).
Moreover, courts have held that land patent claims cannot be used to avoid foreclosure. See e.g., U.S. Bank N.A. v. Friedrichs, No. 12cv2373-GPC(KSC), 2014 WL 12576946, at *5 (S.D. Cal. Mar. 24, 2014); Barbieri v. Aurora Loan Servs., No. C 10-4044 RS, 2011 WL 13277763, at * (N.D. Cal. July 1, 2011); Webb v. CITIMORTGAGE, No. 10-2445-PHX-SRB, 2011 WL 13142488, at *6 (D. Ariz. July 13, 2011) (dismissing cause of action that defendants refused to recognize property was held under a federal land patent); Basulto v. GMAC Mortgage, No. 09-1438, 2009 WL 1658003, at *2 (N.D. Cal. June 12, 2009).
For these reasons, Plaintiff's action should be dismissed with prejudice.
III. RECOMMENDATION
IT IS HEREBY RECOMMENDED that the District Judge enter an order:
(1) GRANTING Plaintiff's IFP application (ECF No. 1). Plaintiff is permitted to maintain this action without prepaying the filing fee or giving security therefor. This order granting IFP status does not extend to the issuance of subpoenas at government expense.
(2) The complaint (ECF No. 1-1) should be FILED.
(3) The action should be DISMISSED WITH PREJUDICE.
The Plaintiff should be aware of the following:
1. That he may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to this Report and Recommendation within fourteen days of being served with a copy of the Report and Recommendation. These objections should be titled “Objections to Magistrate Judge's Report and Recommendation” and should be accompanied by points and authorities for consideration by the district judge.
2. That this Report and Recommendation is not an appealable order and that any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment by the district court.