United States District Court, N.D. California
SCREENING ORDER REVIEWING PLAINTIFF'S FIRST
AMENDED COMPLAINT; ORDER CONTINUING CASE MANAGEMENT
CONFERENCE RE: DKT. NO. 14
A WESTMORE UNITED STATES MAGISTRATE JUDGE.
25, 2018, Plaintiff Archibald Cunningham filed this civil
action and application to proceed in forma pauperis.
Since Plaintiff was previously found to be vexatious, his
complaint was subject to a prefiling order. While his
complaint included some of the same parties and claims
covered by the prefiling review order, the district court
found that it also included parties and certain claims that
were arguably outside its scope, so, on November 20, 2018,
the court granted leave to proceed on the new complaint.
(Dkt. No. 1.) On February 6, 2019, the Court granted the
application to proceed in forma pauperis and then
screened Plaintiff's complaint pursuant to 28 U.S.C.
§ 1915, and concluded that it was deficient. (Dkt. No.
8.) On April 5, 2019, Plaintiff filed a first amended
complaint, which the Court again screens pursuant to §
1915, and once again concludes that the complaint is
in forma pauperis statute provides that the Court
shall dismiss the case if at any time the Court determines
that the allegation of poverty is untrue, or that the action
(1) is frivolous or malicious, (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C.
complaint is frivolous under Section 1915 where there is no
subject matter jurisdiction. See Castillo v.
Marshall, 207 F.3d 15, 15 (9th Cir. 1997) (citation
omitted); see also Pratt v. Sumner, 807 F.2d 817,
819 (9th Cir. 19987) (recognizing the general proposition
that a complaint should be dismissed as frivolous on Section
1915 review where subject matter jurisdiction is lacking).
complaint may also be dismissed for failure to state a claim,
because Section 1915(e)(2) parallels the language of Federal
Rule of Civil Procedure 12(b)(6). Lopez v. Smith,
203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint,
therefore, must allege facts that plausibly establish the
defendant's liability. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007). When the complaint
has been filed by a pro se plaintiff, courts must
“construe the pleadings liberally . . . to afford the
petitioner the benefit of any doubt.” Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010)(citations
omitted). Upon dismissal, pro se plaintiffs proceeding in
forma pauperis must be given leave to “amend their
complaint unless it is absolutely clear that the deficiencies
of the complaint could not be cured by amendment.”
Franklin v. Murphy, 745 F.2d 1221, 1235 n.9 (9th
Cir. 1984) (internal citations and quotation marks omitted);
Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
courts of limited jurisdiction, “federal courts have an
independent obligation to ensure that they do not exceed the
scope of their jurisdiction.” Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2011);
Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116
(9th Cir. 2004) (noting that district courts are
“obligated to consider sua sponte whether [they] have
subject matter jurisdiction”). There are two bases for
federal subject matter jurisdiction: (1) federal question
jurisdiction under 28 U.S.C. § 1331 and (2) diversity
jurisdiction under 28 U.S.C. § 1332. A district court
has federal question jurisdiction in “all civil actions
arising under the Constitution, laws, or treaties of the
United States.” Id. at § 1331. A cause of
action “arises under federal law only when the
plaintiff's well-pleaded complaint raises issues of
federal law.” Hansen v. Blue Cross of Cal.,
891 F.2d 1384, 1386 (9th Cir. 1989). A district court has
diversity jurisdiction “where the matter in controversy
exceeds the sum or value of $75, 000 . . . and is between
citizens of different states, or citizens of a State and
citizens or subjects of a foreign state.” Id.
Plaintiff's the first cause of action attempts to
resurrect the loss of Plaintiff's property via prior
state court action under the guise of federal civil rights
statutes. (First Am. Compl., “FAC, ” Dkt. No. 14
¶¶ 139-145.) To the extent that Plaintiff is
alleging malicious prosecution, that is duplicative of the
second cause of action. (See FAC ¶ 140f.) All
other allegations in the first cause of action are barred by
the two-year statute of limitations.
second cause of action for malicious prosecution is partially
viable. (FAC ¶¶ 146-158.) The statute of
limitations for malicious prosecution is two years from the
date the criminal charges resolve in the plaintiff's
favor, and the charges from Plaintiff's third arrest were
dismissed on or around May 28, 2016. (FAC ¶ 6.) Since
Plaintiff filed his original complaint on May 25, 2018, that
claim is not time-barred. That said, any claims based on
charges dismissed prior to May 25, 2016, including those
dismissed on January 14, 2015, are time-barred, so the second
amended complaint should only address the last set of
charges. (See FAC ¶ 116.)
third cause of action is for denial of procedural due process
and the fourth cause of action for conspiracy to interfere
with civil rights pertaining to his alleged wrongful arrest
in 2015 are barred by the two-year statute of limitations for
§ 1983 claims pursuant to California Code of Civil
Procedure § 335.1. (FAC ¶¶ 173-177.) The fifth
cause of action for neglect to prevent the conspiracy of
Defendants Singer, Coombs, and McKay (FAC ¶¶
178-182) is similarly time-barred.
the sixth cause of action is time-barred as to all
allegations with the exception of those relating to malicious
prosecution. (FAC ¶¶ 183-187.) That means that in
amending, for example, Plaintiff cannot properly allege facts
pertaining to the loss of his property or the court-appointed
receiver's alleged unauthorized practice of law.
(See FAC ¶ 183.)
the Court concludes that the complaint is insufficient to
satisfy Section 1915 review. Generally, in amending,
Plaintiff should identify which particular defendant each of
the remaining two causes of action are against. He is
reminded that any claims pertaining to the loss of his
condominium are not actionable nor are any other claims that
were previously litigated. Plaintiff is also advised that he
should attach relevant documents to his second amended
complaint as marked exhibits in lieu of stating that he will
file a request for judicial notice at a later date.
Alternatively, Plaintiff may simply allege the facts relevant
to his claims and avoid attaching and incorporating documents
to the complaint.