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Margareta Collin, et al v. Michael D. Zeff

September 25, 2012

MARGARETA COLLIN, ET AL.,
PLAINTIFF,
v.
MICHAEL D. ZEFF, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Andrew J. WISTRICHUnited States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff, a non-prisoner proceeding pro se, paid the filing fee and filed this action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against Michael D. Zeff ("Zeff), a private attorney; Ross M. Klein ("Klein"), a California state court judge; and Patrick T. Madden ("Madden"), a California state court judge. Defendants are sued in their individual and official capacities. [Complaint 1-3, 9].

Because the complaint fails to state a federal claim on which relief can be granted, it is dismissed with leave to amend. Plaintiff has three options:

(1) Plaintiff may continue this action in this court by filing a document labeled "First Amended Complaint" within twenty-one (21) days of the date of this order. To withstand dismissal, the amended complaint must attempt to correct the factual and legal defects described below.

(2) Plaintiff may file a "Notice of Intent Not to Amend Complaint" within twenty-one (21) days of the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that plaintiff wishes to challenge dismissal of the complaint by seeking review of this order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiff's intent not to file an amended complaint, this action will be dismissed with prejudice, and plaintiff will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

(3) Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by filing either a timely amended complaint or a timely notice of intent not to amend, plaintiff will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this order. See Edwards, 356 F.3d at 1063-1066.

Plaintiff's allegations The complaint and attached exhibits allege as follows. On August 3, 2012, plaintiff received a "Notice" from "Superior Court of California, U.S. Bank National Association, John A. Clarke, [and] B. James." [Complaint 11]. Plaintiff does not allege the purpose or substance of the notice. However, plaintiff alleges that she has not entered into a "loan application/agreement" or other agreement with "Superior Court of California, U.S. Bank National Association, John A. Clarke, [or] B. James,"does not owe any money to those entities or persons, and never enjoyed any benefits or services given or sold by them. [Complaint 11].

On or about August 11, 2012, Zeff sent plaintiff a "demand letter" and a "summons." Plaintiff does not allege the substance of the demand letter or the summons. However, plaintiff alleges that she has not entered into a "loan application/agreement" or other agreement with Zeff or with U.S. Bank National Association, does not owe money to Zeff or to U.S. Bank National Association, and never enjoyed any benefits or services given or sold by Zeff. [Complaint 3].

Plaintiff alleges that she had a "reasonable expectation" that Klein and Madden should have known: (1) "that the court did not have jurisdiction over the subject matter to hear the case"; (2) they were violating clearly established law. [Complaint 3]. Plaintiff alleges that defendants were "acting under color of state law" and violated plaintiff's rights under the Sixth and Ninth Amendments and Article 6 of the United States Constitution. [Complaint 3-4].

In "Affidavits" attached as exhibits to the complaint, plaintiff states on August 29, 2012 and September 19, 2012, she witnessed Klein and Madden, respectively, "commit perjury" against their oath of office, deny plaintiff the right to be confronted with the "accuser/witness" against her, deny plaintiff "provisions of the Constitution" they swore to uphold, and deny plaintiff "defense arguments." The affidavits also state: "The Court lacked jurisdiction over the subject matter to hear the case." [Complaint 12-13]. The affidavits are notarized, but they are not executed under penalty of perjury. Plaintiff also has attached similar affidavits from third parties to the complaint as exhibits.

Standard governing dismissal for failure to state a claim

A complaint may be dismissed on the court's own motion for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). To survive dismissal, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and citing Twombly, 550 U.S. at 556). "Factual 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)." Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted). The court must accept as true all factual allegations contained in the complaint. That principle, however, "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. A pro se complaint, however, is "to be liberally construed," and "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)(stating that "we continue to construe pro se filings liberally when evaluating them under Iqbal," and "particularly in civil rights cases, . . . to afford the [plaintiff] the benefit of any doubt") (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)).

Eleventh Amendment immunity

A suit against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself. Gomez v. Vernon, 255 F.3d 1118, 1126 (9th Cir.), cert. denied, 534 U.S. 1066 (2001). Plaintiff's damages claims against state court judges Madden and Klein in their official capacity are claims against the State of California, which is immune from damages suits in federal courts absent a valid abrogation of immunity by Congress or an express waiver of immunity by the state. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267-268 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54 (1996); Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). Moreover, states, state agencies, and state officials sued officially are not "persons" subject to suit for money damages under ...


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