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Bettencourt v. McCabe

United States District Court, E.D. California

July 24, 2017

GARY RAY BETTENCOURT, Plaintiff,
v.
BRIAN McCABE, et al., Defendants.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1)

         On April 27, 2017, Plaintiff Gary Ray Bettencourt, a state prisoner proceeding pro se and in forma pauperis, filed this action in the Sacramento Division of the United States District Court for the Eastern District of California pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On May 9, 2017, this action was transferred from the Sacramento Division to the Fresno Division. (ECF No. 4.)

         Plaintiff utilized the section 1983 complaint form for a civil rights action filed by incarcerated individuals. However, Plaintiff is attempting to challenge proceedings involving the probate of a will rather than conditions of confinement. Therefore, the Court re-designated this action as a regular civil action on June 12, 2017. (ECF No. 7.)

         I.

         SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that “fail[] to state a claim on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). 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 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         DISCUSSION

         Plaintiff brings this action against Defendants Judge B. McCabe of the Merced County Superior Court; Judge J. Kirihara of the Merced County Superior Court; Steve Griffin, executor of John S. Bettencourt's will; and Vanise Bettencourt.[1] Plaintiff states that this Court has jurisdiction over this action pursuant to 28 U.S.C. § 1343(a), 42 U.S.C. § 1983, the Extraordinary Writ Rule, and Rule 4 of the Federal Rules of Civil Procedure, and because this is a trust fund collection case.

         Plaintiff indicates that he is seeking an order to review and enforce the errors by the probate court for the will and testament of John S. Bettencourt. Plaintiff alleges that he is a beneficiary of the will of John S. Bettencourt and that Defendants discontinued the payments of trust funds established for Plaintiff. Plaintiff contends that the trust was for $20, 000, but he only received $4, 400.[2] Plaintiff alleges that the will was probated in Merced County Superior Court on May 10, 2011, and no motions were filed after May 10, 2011.

         Plaintiff alleges that the judges violated Plaintiff's civil and constitutional rights for fiduciary fraud and that a judge violated the oath of affirmation. He alleges that the attorney of record for the estate, the executor, or the Merced County Superior Court has put new dates on the motions and fabricated or falsified the language of the motions. It appears that Plaintiff is alleging that his petitions and pleadings were returned unfiled by the Superior Court Judges and Clerks for two years. Plaintiff states that he only received 74 or 76 pages of the record from the Superior Court Clerk, but she claimed she sent 82 pages. Plaintiff states that an unknown clerk changed the “Superior Court Civil/Probate, Collection case number” and did not file motions for telephonic appearances before Judge Kirihara. Plaintiff alleges that subpoenas were not served by the Merced Superior Court to attend the ordered probate civil/collection hearing. Plaintiff seeks to invoke the Federal Tort Claim Act and the Federal Jurisdiction Act over the state court's gross negligence.

         The only relief that Plaintiff seeks is damages. Plaintiff seeks to be reimbursed for the trust fund payments of $100 per month that he alleges he is entitled to for a total of $16, 400. He also seeks payment for gross tort negligence of $1, 164, 000.

         Plaintiff's complaint fails to set forth any facts to state a cognizable federal claim. Plaintiff sets forth the names of several individuals who it appears were involved in the probate of John Bettencourt's will, but it is unclear what claims Plaintiff is attempting to pursue in this action. It is unclear if Plaintiff is challenging the state court's decision in the probate proceeding or if he is bringing claims against individuals for what they did or failed to do related to the probate proceeding. The Court shall grant Plaintiff an opportunity to file an amended complaint to correct the deficiencies identified in this order and he should clearly state the claims that he is bringing and the defendants that he is bringing his claims against.

         If Plaintiff cannot identify the Defendants by name, he must number the Doe Defendants in the complaint, e.g., “John/Jane Doe 1, ” John/Jane Doe 2, ” and allege specific acts attributed to each of the Doe Defendants, e.g., “John Doe 1 did X” and “John Doe 2 and 3 did Y, ” so that each numbered John Doe refers to a different specific person and their role in the alleged violations is clear. In addition, the Court cannot order service of a Doe Defendant because the United States Marshal cannot serve a Doe Defendant. Therefore, before the Court orders the United States Marshal to serve a Doe Defendant, Plaintiff will be required to identify him or her with enough information to locate the Defendant for service of process.

         A. Jurisdiction

         Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant to 28 U.S.C. § 1331, federal courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises under' federal law either where federal law creates the cause of action or where the vindication of a right under state law necessarily turns on some construction of federal law.” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983) (citations omitted)). “[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Republican Party of Guam, 277 F.3d at 1089 (citations omitted).

         For this action to arise under federal law, Plaintiff must establish that “federal law creates the cause of action” or his “asserted right to relief depends on the resolution of a substantial question of federal law.” K2 America Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th Cir. 2011).[3]

         It is unclear what claims Plaintiff is bringing in this action and the bases for those claims. If Plaintiff is seeking to bring his suit on basis of federal question jurisdiction, he must allege facts to demonstrate that this action arises under federal law.

         B. Liability ...


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