Marin v. WBC Holdings Corp. et al, No. 3:2018cv00870 - Document 4 (S.D. Cal. 2018)
Court Description: ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis; denying as moot Plaintiff's 3 Motion to File Financial Records Under Seal. Because Plaintiff's Complaint fails to correct pleading deficiencies to which Plaintiff was alerted nearly two years ago and raises claims over which this Court lacks jurisdiction, Court dismisses the Complaint with prejudice. The Clerk shall close this case. Signed by Judge Cynthia Bashant on 5/14/2018. (All non-registered users served via U.S. Mail Service) (jah)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MEL MARIN, Plaintiff, 12 13 14 15 Case No. 18-cv-00870-BAS-MDD ORDER: v. (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2]; WBC HOLDINGS CORP., et al., Defendant. 18 (2) DENYING MOTION TO SEAL FINANCIAL RECORDS AS MOOT [ECF No. 3]; 19 AND 16 17 20 (3) DISMISSING COMPLAINT [ECF No. 1] WITH PREJUDICE 21 22 23 24 25 On May 4, 2018, Plaintiff Mel Marin filed a civil complaint (ECF No. 1), a 26 motion to proceed in forma pauperis (“IFP”) (ECF No. 2), and a motion to seal 27 financial records (ECF No. 3). For the reasons herein, the Court grants Plaintiff’s 28 IFP motion, denies the motion to seal, and dismisses the Complaint with prejudice. –1– 18cv870 1 I. MOTION TO PROCEED IFP AND MOTION TO SEAL 2 Under 28 U.S.C. §1915, a litigant who because of indigency is unable to pay 3 the fee or give security needed to commence a legal action may petition a court to 4 proceed without making such payment. The determination of indigency falls within 5 the district court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 6 Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 7 typically requires the reviewing court to exercise its sound discretion in determining 8 whether the affiant has satisfied the statute’s requirement of indigency”). It is well- 9 settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. 10 DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements 11 of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one 12 cannot because of his poverty pay or give security for costs . . . and still be able to 13 provide himself and dependents with the necessities of life.” Id. at 339. 14 Here, the Court finds that Plaintiff has shown that he cannot afford the filing 15 fee. He has submitted an affidavit showing that he has no gainful employment and 16 receives $700 per month through military pension and food stamps. (ECF No. 2.) 17 Plaintiff’s declared monthly expenses of $770 exceed his limited financial resources. 18 (Id.) Based on the information provided, the Court grants Plaintiff’s IFP motion. 19 Plaintiff’s motion to seal concerns documentation regarding his financial situation; 20 specifically, Plaintiff contends that if he is required to submit a “long form” IFP 21 motion, he would like to file such information under seal. (ECF No. 3.) Because the 22 Court has granted Plaintiff IFP status based on the financial information he provided, 23 Plaintiff need not submit a “long form” IFP motion. His motion to seal is denied as 24 moot. 25 II. MANDATORY SCREENING OF THE COMPLAINT 26 A. Applicable Standard 27 Under Section 1915(e) of title 28 of the United States Code, the Court must 28 sua sponte dismiss IFP complaints, or any portions thereof, which are frivolous, –2– 18cv870 1 malicious, fail to state a claim, or which seek damages from defendants who are 2 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 3 (discussing 28 U.S.C. §1915(e)(2)). “[T]he provisions of section 1915(e)(2)(B) are 4 not limited to prisoners.” Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001). 5 Every complaint must contain “a short and plain statement of the claim 6 showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual 7 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 8 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 9 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 10 (2007)). “When there are well-pleaded factual allegations, a court should assume 11 their veracity, and then determine whether they plausibly give rise to an entitlement 12 to relief.” Id. at 679; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 13 (noting that section 1915(e)(2) “parallels the language of Federal Rule of Civil 14 Procedure 12(b)(6)”). “Determining whether a complaint states a plausible claim for 15 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 16 judicial experience and common sense.” 17 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see 18 also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Iqbal, 556 U.S. at 679. The “mere 19 While a plaintiff’s factual allegations are taken as true, courts “are not required 20 to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 21 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Indeed, while 22 courts “have an obligation where the petitioner is pro se, particularly in civil rights 23 cases, to construe the pleadings liberally and to afford the petitioner the benefit of 24 any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. 25 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 26 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. 27 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 28 –3– 18cv870 1 B. Discussion 2 Plaintiff purports to assert some nine causes of action, including: (1) a claim 3 for declaratory and injunctive relief; (2) violation of the Real Estate Settlement 4 Procedures Act (“RESPA”); (3) credit defamation in violation of 15 U.S.C. §1681; 5 (4) the California Unfair Competition Law (“UCL”), CAL. BUS. & PROF. CODE 6 §17200, et seq.; (5) bankruptcy contempt and conversion; (6) a declaratory judgment 7 that Wells Fargo unlawfully seized funds and destroyed its status as creditor; (7) a 8 quiet title claim regarding a property in which Plaintiff claims a lien; (8) violation of 9 the automatic bankruptcy stay by Wells Fargo; and (9) a 42 U.S.C. §1983 claim. 10 (ECF No. 1.) Notwithstanding the myriad causes of action labeled in the Complaint, 11 the Complaint fails to state a claim upon which relief may be granted. 28 U.S.C. 12 §1915(e)(2). 13 Plaintiff previously asserted all claims but his “bankruptcy contempt” claim in 14 an action brought before a different judge in this Court in October 2016. See Marin 15 v. Wells Fargo, N.A., et al., No. 16-cv-2512-BEN-MDD, ECF No. 1 Complaint (S.D. 16 Cal. Oct. 6, 2016). Upon a mandatory screening of his IFP complaint in that action, 17 Judge Benitez dismissed the Complaint without prejudice for failure to state a claim, 18 determining that: 19 Defendants’ banking, lending, or credit reporting relationships with Plaintiff’s sister 20 or her husband.” Marin v. Wells Fargo, N.A., et al., No. 16-cv-2512-BEN-MDD, 21 2016 WL 6875891, at *2 (S.D. Cal. Nov. 17, 2016). Judge Benitez admonished 22 Plaintiff that “he may not litigate another party’s claim pro se as it would constitute 23 engaging in the unauthorized practice of law.” Id. (citing Marin v. Escondido Care 24 Ctr., No. 11CV1610 AJB JMA, 2012 WL 3648288, at *2 (S.D. Cal. Aug. 23, 2012)). 25 Here, Plaintiff once more runs afoul of warnings from two judges in this District that 26 he cannot litigate his sister’s claims pro se. See Marin, 2016 WL 6875891, at *2; “Plaintiff’s Complaint is entirely based upon or related to, 27 28 –4– 18cv870 1 Marin, 2012 WL 3648288, at *2.1 2 In assessing Plaintiff’s prior complaint, Judge Benitez noted that Plaintiff 3 “alleges that, between 2011 and 2016, the Defendants conspired to seize his sister’s 4 bank accounts, foreclose on her properties, violate stays in his sister’s bankruptcy 5 hearings, and create a negative impact on her credit score.” Id. at *3. Judge Benitez 6 determined that “Plaintiff’s allegations are conclusory in nature and lack sufficient 7 factual matter to state a claim upon which relief can be granted. Plaintiff simply 8 gives general conclusions that the Defendants have harmed him as a result of harming 9 his sister, and he is entitled to relief, and that the Defendants conspired to commit 10 these wrongs against his sister, which resulted in his own harm, and are therefore 11 liable for each other’s actions.” Id. at *3. After Judge Benitez dismissed the 12 Complaint on these grounds, Plaintiff simultaneously filed an amended complaint 13 and a notice of voluntary dismissal. See Marin v. Wells Fargo, N.A., et al., No. 16- 14 cv-2512-BEN-MDD, ECF No. 8 (Am. Compl.), No, 9 (Notice of Vol. Dismissal) 15 (S.D. Cal. Dec. 29, 2016). 16 Here, Plaintiff’s Complaint is indistinguishable from the Complaint Judge 17 Benitez dismissed, based on the conduct allege, claims raised, and defendants. An 18 IFP plaintiff cannot circumvent a prior dismissal of the same insufficiently pleaded 19 claims by filing a different action before a different judge at a later point in time. An 20 in forma pauperis complaint that merely repeats pending or previously litigated 21 claims may be considered abusive and dismissed under 28 U.S.C. § 1915(e); Cato v. 22 United States, 70 F.3d 1103, 1105 n. 2 (9th Cir.1995); see also McWilliams v. State 23 of Colorado, 121 F.3d 573, 574 (11th Cir.1997) (repetitious action may be dismissed 24 as frivolous or malicious). Plaintiff’s Complaint is subject to dismissal on this 25 26 27 28 1 The Court observes that a third judge in this district dismissed claims in Plaintiff’s sister’s IFP complaint based on willful violation of a bankruptcy stay by other defendants and an identically pleaded Section 1983 claim that Plaintiff alleges here. See Bauman v. Harbor View Home Owners Ass’n, No. 16cv2506-MMA (JMA), 2017 WL 1378215, at *6 (S.D. Cal. April 11, 2017). –5– 18cv870 1 ground. 2 Moreover, this Court lacks jurisdiction over Plaintiff’s claims regarding willful 3 violation of a bankruptcy stay by the Defendants. The United States Bankruptcy 4 Code establishes an automatic stay. See 11 U.S.C. §§362(a), (c), (k). Plaintiff 5 appears to believe that once a bankruptcy proceeding is dismissed, he may bring a 6 claim for willful violation of the automatic bankruptcy in district court. This belief 7 is erroneous. 8 violations of [an] automatic stay . . . must be brought in the bankruptcy court, rather 9 in the district court, which only has appellate jurisdiction over bankruptcy cases.” 10 Marin v. City of Utica, 140 Fed. App’x 304 (2d Cir. 2005) (quoting Eastern Equip. 11 & Servs. Corp. v. Factory Point Nat. Bank, Bennington, 236 F.3d 117, 121 (2d Cir. 12 2001); see also Marin v. Nat’l Grid, No. 6:10-CV-439 (DNH/ATB), 2010 U.S. Dist. 13 LEXIS 150619, at *6–7 (N.D.N.Y. April 20, 2010) (dismissing for lack of 14 jurisdiction claim based on alleged violation of automatic bankruptcy stay). 15 Plaintiff’s sister was already advised of this when her claims of willful violation of a 16 bankruptcy stay were dismissed with prejudice. See Bauman v. Harbor View Home 17 Owners Ass’n, No. 16cv2506-MMA (JMA), 2017 WL 1378215, at *2–3 (S.D. Cal. 18 April 11, 2017). This is an independent ground to dismiss Plaintiff’s bankruptcy 19 claims. 20 III. “[R]ecovery of compensatory and punitive damages for willful CONCLUSION & ORDER 21 For the foregoing reasons, the Court GRANTS Plaintiff’s motion to proceed 22 IFP (ECF No. 2) and DENIES AS MOOT the motion to seal (ECF No. 3). Because 23 Plaintiff’s Complaint fails to correct pleading deficiencies to which Plaintiff was 24 alerted nearly two years ago and raises claims over which this Court lacks 25 jurisdiction, the Court dismisses DISMISSES WITH PREJUDICE the Complaint. 26 (ECF No. 1.) The Clerk of the Court shall close the file in this case. 27 28 IT IS SO ORDERED. DATED: May 14, 2018 –6– 18cv870
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