United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS WITH
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
is proceeding in this action pro se. This matter was referred
to the undersigned by E.D. Cal. R. 302(c)(21). Plaintiff has
filed a request for leave to proceed in forma pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915, and
has submitted the affidavit required by that statute. ECF No.
2. See 28 U.S.C. § 1915(a)(1).
determination that a plaintiff qualifies financially for in
forma pauperis status does not complete the inquiry required
by the statute. The federal IFP statute requires federal
courts to dismiss a case if the action is legally
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). Plaintiff must assist the court in
determining whether or not the complaint is frivolous, by
drafting the complaint so that it complies with the Federal
Rules of Civil Procedure (“Fed. R. Civ. P.”).
Under the Federal Rules of Civil Procedure, the complaint
must contain (1) a “short and plain statement” of
the basis for federal jurisdiction (that is, the reason the
case is filed in this court, rather than in a state court),
(2) a short and plain statement showing that plaintiff is
entitled to relief (that is, who harmed the plaintiff, and in
what way), and (3) a demand for the relief sought.
Fed.R.Civ.P. 8(a). Plaintiff's claims must be set forth
simply, concisely and directly. Fed.R.Civ.P. 8(d)(1).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.
2010), cert. denied, 564 U.S. 1037 (2011).
court applies the same rules of construction in determining
whether the complaint states a claim on which relief can be
granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(court must accept the allegations as true); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (court must construe
the complaint in the light most favorable to the plaintiff).
Pro se pleadings are held to a less stringent standard than
those drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic
recitation of the elements of a cause of action does not
suffice to state a claim. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To state a claim on
which relief may be granted, the plaintiff must allege enough
facts “to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
se litigant is 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.
See Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987), superseded on other grounds by statute as
stated in Lopez v. Smith, 203 F.3d 1122 (9th
Cir.2000) (en banc).
January 2, 2020, Egorov Dmitriy filed this action pursuant to a
section of the U.S. Criminal Code, 18 USC § 241. ECF No.
1. Plaintiff alleges defendant follows him in stores with his
cell phone with private questions. ECF No. 1 at 2. Plaintiff
alleges defendant is part of a British-Russian conspiracy to
get cash from the Department of Social Services IHSS (In-Home
Support Services). Id. Plaintiff seeks 999 trillion
dollars in damages. Id. Plaintiff alleges federal
question jurisdiction and states that both he and defendant
are citizens of the State of California. ECF No. 1 at 3.
THE COURT LACKS JURISDICTION AND THE COMPLAINT IS FRIVOLOUS
federal court has an independent duty to assess whether
federal subject matter jurisdiction exists, whether or not
the parties raise the issue. See United Investors Life
Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967
(9th Cir. 2004); accord Rains v. Criterion Sys.,
Inc., 80 F.3d 339, 342 (9th Cir. 1996). The court must
sua sponte dismiss the case if, at any time, it determines
that it lacks subject matter jurisdiction. Fed.R.Civ.P.
plaintiff sues exclusively under the criminal code. A citizen
does not have authority to bring criminal charges.
“Criminal proceedings, unlike private civil
proceedings, are public acts initiated and controlled by the
Executive Branch.” Clinton v. Jones, 520 U.S.
681, 718 (1997). Accordingly, Title 18 of the United States
Code does not establish any private right of action and
cannot support a civil lawsuit. See Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (criminal
provisions provide no basis for civil liability). Because
plaintiff's complaint does not contain any viable federal
cause of action and because both plaintiff and defendant are
alleged to be California citizens, there is no basis for
federal jurisdiction under either 28 U.S.C. § 1331 or
§ 1332. Dismissal with prejudice is further supported by
the fact that the complaint is clearly frivolous, lacking any
basis in law or fact. Neitzke, 490 U.S. at 325.
the court ordinarily grants leave to amend with great
liberality, especially to pro se litigants, the nature of
plaintiff s complaint here compels the conclusion that
granting leave to amend would be futile. See Cahill v.
Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).
Because there is an incurable lack of jurisdiction over ...