United States District Court, E.D. California
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
filed her complaint pro se on April 19, 2018, ECF No. 1,
along with an application to proceed in forma pauperis ECF
No. 2. The court has reviewed the verified application and
finds that plaintiff lacks the financial wherewithal to pay
the fees and costs associated with the case and will,
therefore, grant the motion.
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 upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir.1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th
Cir.1989); Franklin, 745 F.2d at 1227.
complaint must contain more than a “formulaic
recitation of the elements of a cause of action;” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
“The pleading must contain something more ... than ...
a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.,
quoting 5 C. Wright & A. Miller, Federal Practice and
Procedure 1216, pp. 235-235 (3d ed.2004). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hospital
Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740
(1976), construe the pleading in the light most favorable to
the plaintiff, and resolve all doubts in the plaintiff's
favor. Jenkins v. McKeithen, 395 U.S. 411, 421
essential element of a claim brought in federal court is the
jurisdiction of the court. Federal courts are courts of
limited jurisdiction and admission to these courts must be
based on either a federal question of law, see e.g.,
28 U.S.C. § 1331, which applies to civil actions arising
under the Constitution, laws or treaties of the United
States, or a diversity of citizenship between the parties in
the action, see 28 U.S.C. § 1332, which applies
when plaintiff is a citizen of one state and defendant is a
citizen of another and the amount in controversy between them
exceeds the sum or value of $75, 000.
seeks damages from defendant, apparently the manager of the
apartment house where plaintiff resides, for entering her
apartment without permission, stealing her personal property,
and threatening her. Plaintiff purports to sue for damages to
redress these grievances under 18 U.S.C. section 241, a
criminal law statute that imposes imprisonment and fines for
conspiracy “to injure oppress threaten, or intimidate
any person . . . in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution of the
United States.” Except in unusual circumstances,
criminal statutes give no private right of action. Kraft
v. Old Castle Precasr, Inc., 2015 WL 4693220 (C.D. Cal.
2015) (and cases cited therein). The weight of authority
makes clear that private citizens have no right of action for
a damages action under this criminal law statute. See
Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th
Cir. 1980); Christian v. United States, 2014 WL
3809046 (D.Nev. 2014).
pro se pleadings are held to a less stringent standard than
those drafted by lawyers, Haines v. Kerner, 404 U.S.
519, 520 (1972) and are therefore construed liberally
“and may only be dismissed if it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Tegorov v. Daniil, 2018 WL 1470588 *1 (E.D.Cal.
2018). A pro se litigant is, therefore, entitled to notice of
the deficiencies in the complaint and an opportunity to
amend, unless the complaint's deficiencies could not be
cured by amendment.” Id., citing Noll v.
Carlson, 809 F.2 1446, 1448 (9th Cir. 1987).
facts stated by plaintiff it would appear that she may well
have a state law claim against defendant for trespass or
invasion of privacy or the like that would bear damages
liability or that she can, through local authorities, seek to
have defendant criminally prosecuted for the same types of
offenses. But as it stands, plaintiff has no federal claim
that would gain her access to this federal court.
other hand plaintiff makes mention of a “service
animal” that defendant apparently protested regarding
it occupying plaintiff's apartment in defendant's
“no pets” apartment house.
therefore possible that plaintiff was attempting to plead a
claim under Title III of the Americans with Disabilities Act,
42 USC § 12182. A plaintiff who claims she is
discriminated against in her access to housing suitable to
accommodate her disabilities must identify her disability,
how a defendant has failed to accommodate that disability,
whether discrimination in housing is subject to Title III,
and seek redress. If this is, indeed, the crux of
plaintiff's complaint, then she must plead it consonant
with the Rules of Federal Civil Procedure.
Federal Rule 8(a) requires that a complaint contain
(1) a short and plain statement of the grounds for the
court's jurisdiction . . .; (2) a short and plain
statement of the claim showing that the pleader is entitled
to relief; and (3) a demand for the relief sought, which may