United States District Court, S.D. California
WESLEY C. DORSEY, MARGARETE S. DORSEY, Plaintiffs,
GARY KREEP, Defendant, LEAVITT INVESTMENT CO., Real Party in Interest.
ORDER: (1) DISMISSING COMPLAINT WITH PREJUDICE AS
FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(I); AND
(2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT (DOC.
NOS. 1, 2)
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE
Plaintiffs Wesley C. Dorsey, Jr. and Margarete S. Dorsey
(“Plaintiffs”) filed a Complaint against
Defendant Judge Gary Kreep (“Defendant Judge
Kreep”) alleging fraud on the court and violation of
the Due Process Clause of the Fourteenth Amendment. (Doc. No.
1.) Plaintiffs have not paid the $400 filing fee required to
commence this action, but instead have filed Motions to
Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.) For the
reasons set forth below, the Court DISMISSES
Plaintiffs' Complaint WITH PREJUDICE and
DENIES AS MOOT Plaintiffs' IFP Motions.
Sua Sponte Screening Under 28 U.S.C. § 1915(e)
Standard of Review
complaint filed pursuant to the IFP provisions of 28 U.S.C.
§ 1915(a) is subject to a mandatory and sua sponte
review and dismissal by the Court if it finds the complaint
is frivolous, malicious, failing to state a claim upon which
relief may be granted, or seeking monetary relief from a
defendant immune from such relief. 28 U.S.C. §
1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845
(9th Cir. 2001) (“[T]he provisions of 28 U.S.C. §
1915(e)(2)(B) are not limited to prisoners[.]”).
“The purpose of [screening] is ‘to ensure that
the targets of frivolous or malicious suits need not bear the
expense of responding.'” Nordstrom v.
Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting
Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 681 (7th Cir. 2012)).
Factual Background and Plaintiffs' Allegations
2015, Leavitt Investment Company (“Leavitt”)
filed an unlawful detainer action against Plaintiffs in the
Superior Court for the County of San Diego. (Doc. No. 1 at 4)
(citing Leavitt Investment Company v. Dorsey, Case
No. 37-2015-00038520-CL-UD-CTL). Defendant Judge Kreep
presided over Plaintiffs' unlawful detainer trial.
(Id. at 5.) A key issue at trial was whether the
notice Leavitt provided was proper. (See Id. at
5-8.) On this issue, Plaintiff Wesley C. Dorsey, Jr.
testified, “I received three-day notices. I continued
to make payments. I continued to receive three-day notices up
until November 10th.” (Id. at 5.) What
happened next is the focus of Plaintiffs' Complaint.
(See id.) Based on Mr. Dorsey's testimony,
Defendant Judge Kreep made an implied finding of fact that
Mr. Dorsey admitted to receiving notice, thus curing any
alleged defect in service. (Id. at 5, 7-8.)
Plaintiffs allege that Defendant Judge Kreep misconstrued Mr.
Dorsey's testimony. (Id. at 5.) Specifically,
Plaintiffs allege that Mr. Dorsey's testimony regarding
the “November 10th” date was in reference to the
date that Leavitt returned Plaintiffs' uncashed rent
check via certified mail, not the date that Mr. Dorsey
received the three-day notice. (Id.) After trial,
judgment was entered for Leavitt, Plaintiffs' lease was
forfeited, and a writ of possession was issued and effected
on March 14, 2016. (Id.)
filed two motions for a new trial, both of which were denied.
(Id. at 6.) In his denial of Plaintiffs' renewed
motion for a new trial, Defendant Judge Kreep stated that
Plaintiffs waived any objection to the service of the
three-day notice by failing to object at trial.
(Id.) Plaintiffs appeared ex parte on December 5,
2016 to argue the point further. (Id.) Defendant
Judge Kreep denied Plaintiffs' ex parte application.
(Id. at 6-7.)
appealed Defendant Judge Kreep's judgment to the
Appellate Division of the Superior Court for the County of
San Diego. (Id. at 4, 6.) The Appellate Division
affirmed. (Id. at 7.) On February 29, 2017,
Plaintiffs filed a petition for rehearing. (Id.) On
March 2, 2017, the Appellate Division issued a modified
statement of decision denying the petition for rehearing and
reaffirming their prior ruling. (Id. at 8.)
then filed a Complaint in this Court. (Doc. No. 1.)
Plaintiffs' Complaint alleges Defendant Judge Kreep
committed fraud on the court and violated Plaintiffs' due
process rights when, at Plaintiffs' renewed motion for
new trial and ex parte hearing, he failed to advise
Plaintiffs that he had made an implied finding of fact that
Mr. Dorsey's testimony constituted an admission that he
had received notice. (Id. at 10-14.)
Complaint asks this Court to (1) declare Defendant Judge
Kreep's judgment void for fraud on the court, (2) dismiss
the unlawful detainer action against Plaintiffs with
prejudice, and (3) direct the San Diego Superior Court to
seal the records from Plaintiffs' unlawful detainer case.
(Id. at 14-15.) In the alternative, Plaintiffs
request that this Court require the San Diego Superior Court
to grant Plaintiffs a new trial. (Id. at 15.)
The Court Does Not Have Jurisdiction over Plaintiffs'
courts lack subject matter jurisdiction to review appeals
from state court judgments. Rooker v. Fid. Tr. Co.,
263 U.S. 413, 415-16 (1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 483 (1983). Accordingly, lower
federal courts cannot adjudicate actions brought by
“state-court losers” seeking relief from
“state-court judgments rendered before the district
court proceedings commenced.” Lance v. Dennis,
546 U.S. 459, 460 (2006) (quoting Exxon Mobile Corp. v.
Saudi Basic Industries, Corp., 544 U.S. 280, 284
(2005)). The Rooker-Feldman doctrine precludes a
federal district court from exercising jurisdiction over
general constitutional challenges that are
“inextricably intertwined” with claims asserted
in state court. Fontana Empire Ctr., LLC v. City of
Fontana, 307 F.3d 987, 992 (9th Cir. 2002) (quoting
Feldman, 460 U.S. at 486 n.16). “Where the
district court must hold that the state court was wrong in
order to find in favor of the plaintiff, the issues presented
to both courts are inextricably intertwined.” Doe
& Assocs. Law Offices v. Napolitano, 252 F.3d 1026,
1030 (9th Cir. 2001).
although Plaintiffs state two causes of action against
Defendant Judge Kreep, Plaintiffs are essentially arguing
against the judgment he rendered in their state unlawful
detainer action. (See generally Doc. No. 1.) For
instance, in their Complaint, Plaintiffs state the actions
that allegedly violated their rights occurred during two
hearings during their unlawful detainer case. (Id.)
If this Court were to declare that Defendant Judge Kreep
violated Plaintiffs' rights at these hearings by not
advising them that Mr. Dorsey's testimony amounted to an
admission that he received notice, this Court would
essentially be reversing Defendant Judge Kreep's state
court judgment. Thus, Plaintiffs' claims in this Court