United States District Court, E.D. California
FINDINGS AND RECOMMENDATION SCREENING FIRST AMENDED COMPLAINT AND RECOMMENDING DISMISSAL OF THIS ACTION WITHOUT LEAVE TO AMEND AND CLOSING CASE (ECF No. 11)
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff, David Harring ("Plaintiff"), a state prisoner housed at Kern Valley State Prison, proceeding pro se and in forma pauperis, has filed this civil action seeking monetary damages and other relief.
The Court dismissed Plaintiff's initial complaint in this matter for lack of subject matter jurisdiction ordered Plaintiff to file an amended complaint within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). Plaintiff failed to file a First Amended Complaint and on June 26, 2014, this Court issued Findings and Recommendations to dismiss this action for Plaintiff's failure to obey the Court's order. (Doc. 10).
On July 23, 2014, Plaintiff filed objections to the Findings and Recommendations,  and also a First Amended Complaint. (Doc. 11). Plaintiff cites delays by the prison mail room for his untimely First Amended Complaint. Plaintiff asserts that he prepared his First Amended Complaint well before the submission deadline and served it on the prison mail room in a timely manner. Plaintiff requests the Court to excuse the delay, which was out of his control.
In light of Plaintiff's objections and his submission of the First Amended Complaint on July 23, 2014, the Court vacated its Findings and Recommendations and ordered the First Amended Complaint to be filed. The First Amended Complaint is currently before the Court for screening. (Doc.11, p.6-12.)
The Court is required to screen complaints brought by persons proceeding in pro per. 28 U.S.C. § 1915A(a). Plaintiff's First Amended Complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." . Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
While persons proceeding pro se actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff alleges that Plaintiff David Harring entered into a written contractual agreement with attorney Christopher Martens in sometime in 2007-2008. (Doc. 11, p. 7-8.) Attorney Martens agreed to investigate and write a petition for habeas corpus for the sum $15, 000 on behalf of David Harring. Plaintiff alleges that he paid Attorney Martens $13, 000 in cashier checks for this anticipated service. The attorney's services were to include investigative services and necessary court filings. These services were not timely performed and when the services were not performed, Plaintiff alleges he filed a complaint with the State Bar of California against Attorney Martens in August 2009. In 2010, Attorney Martens, contacted plaintiff and stated he was close to filing the writ. On October 5, 2010, after much delay, Attorney Martens filed an "incompetent" petition for habeas corpus. Plaintiff alleges that the work perrformed by Attorney Martens was in breach of the contract. Plaintiff claims a breach of contract action against Attorney Martens. Plaintiff claims that this Court has jurisdiction because "[t]his in rem action is filed pursuant to Article III §2."
Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and lack inherent or general subject matter jurisdiction. Federal courts can adjudicate only those cases in which the United States Constitution and Congress authorize them to adjudicate. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 1677 (1994). To proceed in federal court, Plaintiffs' Complaint must establish the existence of subject matter jurisdiction. Federal courts are presumptively without jurisdiction over civil actions, and the burden to establish the contrary rests upon the party asserting jurisdiction. Kokkonen, 511 U.S. at 377, 114 S.Ct. at 1677. Lack of subject matter jurisdiction is never waived and may be raised by the court sua sponte. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-595 (9th Cir. 1996). "Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction is what its ...