United States District Court, N.D. California
ORDER RE PREFILING REVIEW
M CHEN, United States District Judge
Lynn Gavin and Bamidele Hambolu (mother and son,
respectively) initially filed the instant putative class
action in the Central District of California. See
Docket No. 1 (complaint). Plaintiffs, proceeding pro se, applied
to proceed in forma pauperis (“IFP”).
See Docket Nos. 2-3 (IFP application). In February
2017, the Central District court transferred the action to
this District. See Docket No. 9 (Order at 2). In its
transfer order, the Central District court took note,
inter alia, of an order from this Court finding Ms.
Gavin to be a vexatious litigant. See id. (citing
Gavin v. City & County of San Francisco, No.
15-CV-05202-EMC, 2016 WL 126937, at *5 (N.D. Cal. Jan. 12,
transfer to this District, the assigned judge, Judge Corley,
referred the case to the undersigned (acting as General Duty
Judge) for a pre-filing review based on Ms. Gavin's
status as a vexatious litigant. Having reviewed the complaint
in this action, as well as the record of other cases
involving Ms. Gavin and Mr. Hambolu, the Court hereby rules
as follows. As to Ms. Gavin, her claims for relief are barred
as they fall within the scope of the pre-filing review order.
respect to Mr. Hambolu, who is a co-plaintiff in this case,
the Court orders the Clerk of the Court to reassign the
entirety of the case, including Mr. Hambolu's claims, to
the undersigned. The Court grants Mr. Hambolu's IFP
application but dismisses his claims with prejudice and
further orders Mr. Hambolu to show cause as to why he should
not be deemed a vexatious litigant subject to the same
pre-filing review requirement as his mother.
PRE-FILING REVIEW WIH RESPECT TO MS. GAVIN
to the vexatious litigant order, Ms. Gavin “must obtain
leave of court before filing any further suits based on her
allegations that she was wrongfully evicted from the
Parkmerced apartments in 2012.” See Gavin,
2016 WL 126937, at *5.
the fact that Ms. Gavin now files this case as a putative
class action, there is significant overlap in operative facts
between this complaint and her previous eleven complaints
alleging wrongful eviction from the Parkmerced apartments in
2012. Specifically, in the pending suit, Ms. Gavin complains
of conduct by Defendants Parkmerced Investors Properties,
LLC, Parkmerced investors, and a third-party billing service
company called American Utility Services for their role in
Parkmerced's practice of providing and filing allegedly
improper eviction notices due to usurious utility fees
against Plaintiffs and other members of the putative class.
See Docket No. 1 (Compl. ¶¶ 2-6, 14). Ms.
Gavin alleges, inter alia, that Defendants engaged
in practices that violate the Fair Debt Collections Practice
Act (“FDCPA”), 15 U.S.C. § 1692(e), and that
constitute wrongful eviction. Since this case arises from Ms.
Gavin's Parkmerced eviction in 2012,  this case falls
squarely within this Court's previous pre-filing review
order barring Ms. Gavin from filing any further suits based
on her alleged wrongful eviction from Parkmerced apartments.
See Gavin, 2016 WL 126937, at *5. Thus, Ms. Gavin is
barred from filing suit.
MR. HAMBOLU'S IN FORMA PAUPERIS
Ms. Gavin is barred from filing this suit, only Mr. Hambolu
remains as a named plaintiff in this putative class action.
The Court now considers Mr. Hambolu's IFP application.
presented with an IFP application, a court must first
determine if the applicant satisfies the economic eligibility
requirement of 28 U.S.C. § 1915(a). See Franklin v.
Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section
1915(a) does not require an applicant to demonstrate absolute
destitution. See McCone v. Holiday Inn Convention
Ctr., 797 F.2d 853, 854 (10th Cir. 1982) (citing
Adkins v. E.I. Du Pont de Nemours & Co., Inc.,
335 U.S. 331, 339). In his IFP application, Mr. Hambolu
states that he is currently unemployed; does not own any
valuable property, including a car or real estate; does not
own any cash; and does not have any money in a bank account.
See Docket No. 3 (IFP application). Given this
information, Mr. Hambolu's application to proceed IFP is
because the Court is granting Mr. Hambolu's IFP
application, it must now review his claims pursuant to 28
U.S.C. § 1915(e)(2)(B). Under this statute, a court is
required to dismiss a case at any time if the court
determines that the action is frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant immune from such relief.
See 28 U.S.C. § 1915(e)(2)(B). In the instant
case, the Court finds that dismissal of Mr. Hambolu's
federal claims is warranted because he has failed to state a
claim for relief and/or the claims are precluded by res
indicated above, Mr. Hambolu has asserted the following
federal claims: violation of the FDCPA, violation of §
1983, and violation of Title VIII of the 1968 Civil Rights
Act (i.e., the Fair Housing Act
(“FHA”)). Mr. Hambolu has failed to state a claim
for a FDCPA violation because it is barred by the statute of
limitations. A claim made pursuant to the FDCPA must be filed
within one year from the date on which the alleged FDCPA
violation could have been discovered. See 15 U.S.C.
§ 1692k(d) (“An action to enforce any liability
created by this subchapter [of the FDCPA] may be brought . .
. within one year from the date on which the violation
occurs.”); Mangum v. Action Collection Serv.,
Inc., 575 F.3d 935, 939 (9th Cir. 2009) (“A limitations
period begins to run when the plaintiff knows or has reason
to know of the injury which is the basis of the
action.”). The gist of Mr. Hambolu's FDCPA claim is
that Defendants issued flawed eviction notices that,
inter alia, failed to disclose that the named
Plaintiffs were subsidized tenants. Generously reading Mr.
Hambolu's litigation history here, the first time Mr.
Hambolu had reason to know of the alleged FDCPA violations
was at least November 14, 2014, when Mr. Hambolu filed a
complaint in which he alleged that he was wrongfully evicted
from the Parkmerced apartments due to defective eviction
notices that failed to disclose that he and his family were
subsidized tenants. See Gavin v. FCOF PM EQ LLC, No.
14-4582-RS (Docket No. 1) (Compl. ¶¶ 178-80).
However, at the time, Mr. Hambolu did not allege a FDCPA
violation and the action was dismissed with prejudice for
failure to prosecute after Mr. Hambolu and his mother failed
to amend their complaint as instructed by the court. See
id. (Docket No. 14) (order). Since it is long past the
one-year statute of limitations, Mr. Hambolu's FDCPA
claim is time barred.
the § 1983 claim, such a claim exists only against state
actors; Mr. Hambolu has sued only private individuals and
companies and therefore he has failed to state a claim for
relief. While there are certain circumstances where a private
actor's conduct may be deemed state action for purposes
of § 1983, see Kirtley v. Rainey, 326 F.3d
1088, 1092 (9th Cir. 2003) (“recogniz[ing] at least
four different criteria, or tests, used to identify state
action: '(1) public function; (2) joint action; (3)
governmental compulsion or coercion; and (4) governmental
nexus'”), Mr. Hambolu has made no allegations that
would implicate state action here. Moreover, it is
implausible that Mr. Hambolu could implicate state action
because “detailed regulation of and substantial funding
for private actors are not sufficient to transform the
party's conduct into state action.” Jensen v.
Lane Cty., 222 F.3d 570, 575 (9th Cir. 2000) (citing
Blum v. Yaretsky, 457 U.S. 991, 1011 (1982)).
as to the FHA claim, Mr. Hambolu alleges that Defendant
Parkmerced's eviction notices disparately impact
subsidized tenants and people of color in violation of the
FHA. See Docket No. 1 (Compl. ¶¶ 161-62).
In addition to a potential time-bar defense (i.e.,
42 U.S.C. § 3613 provides for a two-year statute of
limitations for FHA claims), there are serious deficiencies
in Mr. Hambolu's pleading since subsidized tenants are
not a protected class under the FHA and conclusory claims of
racial imbalance are insufficient to establish a prima facie
case of disparate treatment. See Texas Dep't of
Housing & Community Affairs v. InclusiveCommunities Project, Inc.,135 S.Ct. 2507, 2523
(2015) (“Racial imbalance . . ...