Porter v. Employment Development Department

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN M. PORTER Case No.: 20cv1164-LAB (AHG)

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS; 14 EMPLOYMENT DEVELOPMENT DEPARTMENT 15 ORDER OF DISMISSAL Defendant. WITHOUT PREJUDICE; AND 16

17 ORDER REQUIRING PLAINTIFF TO AMEND 18

19 20 Plaintiff Brian Porter filed his complaint in this case along with a motion for 21 leave to proceed in forma pauperis (“IFP”). (Docket no. 2.) While his IFP motion 22 is not complete, it is apparent Porter lacks the funds to pay the filing fee, and his 23 motion is GRANTED. 24 The Court is required to screen the complaint of any plaintiff proceeding IFP, 25 and to dismiss it to the extent it fails to state a claim or is frivolous. 28 U.S.C. 26 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates 27 the standard for failure to state a claim under Federal Rule of Civil Procedure 28 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). This standard 1 requires a plaintiff to allege facts sufficient to raise her “right to relief above the 2 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To 3 survive § 1915 review, a complaint must “contain sufficient factual matter, 4 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 5 v. Iqbal, 556 U.S. 662, 678 (2009). The Court is also required to raise jurisdictional 6 issues sua sponte, and to dismiss the complaint if jurisdiction is lacking. See 7 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc). 8 This case is related to an earlier case, 20cv399-LAB (AHG), Porter v. 9 Vietnam Veterans of San Diego,1 which Porter filed March 2, 2020. The Court 10 screened and dismissed his complaint in that case as required by 28 U.S.C. 11 § 1915(e)(2). He failed to amend, even after the Court extended the deadline and 12 cautioned him that failure to amend could result in the case being dismissed. After 13 he missed the second deadline, the Court on April 24 dismissed the action for 14 failure to prosecute and for failure to invoke the Court’s jurisdiction. 15 Porter now brings different but apparently related claims in this case. His 16 Complaint in this case begins by citing California case number 37-2019-00060183 17 and asking that it be “moved to the federal level.” (Compl. at 1.) It then cites the 18 previously dismissed case in this Court and says “My case needs to be heard.” 19 (Compl. at 2.) Because the Complaint does not have a caption and does not 20 clearly identify any parties, the Employment Development Department 21 (“EDD”) — a California entity prominently mentioned in the Complaint — has been 22 presumptively added as the Defendant. Porter seems to be seeking relief against 23 EDD based on denial or withholding of benefits. 24 25 26 1 This organization was never identified, and the Court surmised he probably 27 intended to sue the Veterans Village of San Diego, a local private organization offering housing and other services to veterans who are homeless or at risk of 28 1 As in the previous case, the Court is unable to locate case number 37-2019- 2 00060183 in the public dockets of San Diego county courts, and Porter has not 3 provided a copy of the complaint or even identified the case by name. A search 4 for all cases involving Plaintiff as a party did not turn up this case, although Porter 5 was a party to several other cases. 6 The Complaint is required to include a “short and plain statement of the 7 grounds for the court’s jurisdiction . . . .” Fed. R. Civ. P. 8. Porter’s complaint does 8 not include that statement, and the Court is unable to identify any basis for its 9 jurisdiction. 10 The Court has no jurisdiction to hear appeals from state court judgments. 11 See Noel v. Hall, 341 F.3d 1148, 1156, 1163 (9th Cir. 2003). If Porter is seeking to 12 remove a pending state court case to this Court, Porter has not shown why this 13 case is removable under 28 U.S.C. § 1441. He has also not taken the steps to 14 move this action under 28 U.S.C. § 1446. If Porter is asking the Court to enjoin the 15 state court, the Anti-Injunction Act prevents the Court from doing so, unless certain 16 limited exceptions apply. See Sandpiper Village Condominium Ass’n, Inc. v. 17 Louisiana-Pacific Corp., 428 F.3d 831, 842 (9th Cir. 2005). None are apparent 18 here. 19 In short, the Complaint does not clearly say what Porter is asking the Court 20 to do, who the Defendant or Defendants are, and why the Court would have 21 jurisdiction to do whatever he is asking. The Complaint is DISMISSED WITHOUT 22 PREJUDICE for failure to state a claim, for failure to name a proper Defendant, for 23 failure to invoke the Court’s jurisdiction, and for failure to comply with Fed. R. Civ. 24 P. 8 and 10. See § 1915(e)(2); Chapman, 631 F.3d at 954. 25 If Porter believes he can correct these problems, he must file an amended 26 complaint no later than August 10, 2020. If he needs more time to amend, he 27 should file an ex parte motion explaining why he needs more time, and estimating 28 how long he will need. 1 If Porter does not file an amended complaint within the time permitted, 2 ||this action may be dismissed without leave to amend. His amended complaint 3 ||should correct all the problems this Order has pointed out. If Porter fails to correct 4 ||problems that have been pointed out to him, the Court may conclude that these 5 || problems cannot be corrected. 6 7 IT IS SO ORDERED. 8 ||Dated: July 8, 2020 9 [ Mit 4. Gaga 10 Honorable Larry Alan Burns 14 Chief United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28