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Calloway v. Baker

United States District Court, N.D. California

June 18, 2014

JAMISI JERMAINE CALLOWAY, Plaintiff,
v.
FREDERIC S. BAKER, et al., Defendants.

ORDER OF DISMISSAL

JOSEPH C. SPERO, Magistrate Judge.

INTRODUCTION

This is a civil rights action filed by a pro se state prisoner-plaintiff.[1] Plaintiff has filed an amended complaint in response to the Court's order dismissing the original complaint with leave to amend. The amended complaint fails to cure the deficiencies of the first and alleges no cognizable claims. Accordingly, this federal action is DISMISSED.

DISCUSSION

A. Standard of Review

In its initial review of this pro se complaint, this Court must dismiss any claim that is frivolous or malicious, or fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. ยง 1915(e). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

A "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

B. Legal Claims

In the original complaint, plaintiff alleged claims against his former attorney Frederic Baker, and against employees of the California State Bar Association. After review of the original complaint, the Court dismissed the claims against Baker and the state bar without leave to amend. Nothing in the amended complaint justifies reviving such claims. Accordingly, to the extent that plaintiff realleges such claims in his amended complaint, they are DISMISSED with prejudice.

Plaintiff contends that he can still pursue injunctive relief against the state bar, as that sort of relief is not barred by the Eleventh Amendment. This claim is DISMISSED with prejudice. Plaintiff has not alleged facts sufficient to show that there is a great and immediate threat that he will suffer future irreparable injury for which there is no adequate remedy at law. See Nava v. City of Dublin, 121 F.3d 453, 458 (9th Cir. 1997), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999), (citing Easyriders Freedom F.I.G.H.T., 92 F.3d at 1495-96 & n.5, 1500). His past injury is also insufficient to satisfy this requirement, as is a threat of future injury to other citizens, rather than to plaintiff specifically. See id. at 459.

C. Motion to Withdraw Consent to Magistrate Judge Jurisdiction

Plaintiff consented to magistrate judge jurisdiction. (Docket No. 5.) In his amended complaint, he has included a form declining such jurisdiction. To the extent that this is a motion to withdraw consent, it is DENIED. A party has no right to withdraw its consent to trial before a magistrate judge. Carter v. Sea Land Services, Inc., 816 F.2d 1018, 1021 (5th Cir. 1987). A court has discretion to allow a party to withdraw its consent, if a party can show good cause, e.g., his consent was obtained involuntarily or through undue influence. Id. The Court declines to allow plaintiff to withdraw his consent, and concludes that he has not shown good cause.

CONCLUSION

Because the amended complaint fails to cure the deficiencies of the original complaint, and fails to state any cognizable claims for relief, the action is DISMISSED with prejudice. Plaintiff's motion for an extension of time to respond to court orders (Docket No. 12) is DENIED. The Clerk shall terminate Docket No. 12.

IT IS SO ORDERED.


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