Black v. Van Sciver

• Decision Date: 01 September 2016
• Docket Number: No. 1:16-cv-00841-DAD-JLT,1:16-cv-00841-DAD-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: CARL DANNY BLACK, II, Plaintiff, v. KURT DAVID VAN SCIVER, et al., Defendants.

CARL DANNY BLACK, II, Plaintiff,
v.
KURT DAVID VAN SCIVER, et al., Defendants.

No. 1:16-cv-00841-DAD-JLT

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 1, 2016

ORDER GRANTING MOTION TO DISMISS

(Doc. No. 2)

Plaintiff, who is proceeding pro se, filed this action on June 17, 2016 against defendants Kurt Van Sciver, Terry McNally, Lorna Hislop Brumfield, and John Gschwend. (Doc. No. 1.)¹ Defendant Van Sciver filed a motion to dismiss on July 15, 2016. (Doc. No. 2.) Plaintiff filed a "response and cross-movement to strike" on July 27, 2016, which the court deems to be plaintiff's opposition of the motion to dismiss. (Doc. No. 3.) Defendant Van Sciver filed a reply on August 9, 2016. (Doc. No. 3.) A hearing was held on August 16, 2016, with plaintiff appearing telephonically on behalf of himself, and attorney Sebastien Bauge appearing on behalf of defendant Van Sciver. As discussed below, this court does not have subject matter jurisdiction over this complaint and the action will, therefore, be dismissed.²

Page 2

Background

From what the court can discern from the filings before it and what was represented at oral argument on the pending motion to dismiss, defendant Van Sciver is an attorney who represented defendant Gschwend in a state court action before the Kern County Superior Court. Defendant McNally is a clerk of that court, and defendant Brumfield was the Kern County Superior Court Judge presiding over the state court action. The state court matter appears to have been a contract dispute related to the rental of a house owned by defendant Gschwend. Although not entirely clear from plaintiff's complaint, it also appears that Gschwend rented the home to a Theresa Moore who in turn assigned that lease to others including plaintiff Carl Black. Thereafter, defendant Gschwend alleged that he was not being paid the agreed upon rent and eventually he regained possession of the home through eviction proceedings. In his state court action defendant Gschwend sought the award of damages for past due rent, damage to the property, costs incurred in the eviction proceedings and the award of attorney's fees and costs.

Plaintiff's complaint filed with this federal court seeks review of the state court proceedings by way of the Administrative Procedure Act ("APA"). Specifically, plaintiff asserts the following seven claims in this action.

First, plaintiff alleges that although he received a summons in the state court case, there was "no autograph or Court Seal," making it "void of any lawful authority," because it violated Federal Rule of Civil Procedure 4. (Doc. No. 1 at 3.) Plaintiff also alleges that when he viewed the court file and obtained a certified copy of that summons, it had a seal and the appropriate signatures. (Doc. No. 1 at 4.) Based on these allegations, plaintiff claims defendants committed mail fraud, extortion, and conspiracy, in violation of 18 U.S.C. § 1341, et seq., 18 U.S.C. § 871,

Page 3

et seq., 18 U.S.C. § 371, respectively, as well as 18 U.S.C. § 1512 (tampering with a witness) and 18 U.S.C. § 242 (the criminal counterpart to 42 U.S.C. § 1983). (Doc. No. 1 at 5.)

Second, plaintiff claims that he alleged in the state court case defendant Van Sciver breached his fiduciary duty toward his own client, defendant Gschwend. (Doc. No. 1 at 6.) According to plaintiff, the state court erroneously exercised jurisdiction and disregarded his challenge to attorney Van Sciver's conduct. (Doc. No. 1 at 6.) Plaintiff alleges that in this way the state court violated 18 U.S.C. § 871, et seq., 18 U.S.C. § 371, and 18 U.S.C. § 1512. (Doc. No. 1 at 7.)

Third, plaintiff alleges the state court rejected his filings in that action, noting they did not contain any legally recognized arguments that the court could consider and that he had "submitted four lengthy and incomprehensible documents." (Doc. No. 1 at 7-8.) Plaintiff alleges that the state courts order in this regard violated the holdings in Haines v. Kerner, 404 U.S. 519 (1972) (holding the Rule 12(b)(6) dismissal of pro se complaints is inappropriate unless it is "beyond doubt that plaintiff can prove no set of facts" which would entitle him to relief), Estelle v. Gamble, 429 U.S. 97 (1976) (setting out the Eighth Amendment's deliberate indifference standard), McNeil v. United States , 508 U.S. 106 (1993) (requiring a claimant to exhaust administrative remedies before filing suit under the Federal Tort Claims Act), Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984) (enforcing procedural requirements for filing suit under Title VII), and Hughes v. Rowe, 449 U.S. 5 (1980). (Doc. No. 1 at 8.) Moreover, plaintiff claims that the state court in this way also violated 18 U.S.C. §§ 2076 (a U.S. District Court clerk may not "willfully refuse[ ] or neglect[ ] to make or forward" documents as required by law), 1512 (tampering with a witness), and 2071 (mutilating a court record).

Fourth, plaintiff claims defendant Van Sciver should have been terminated and sanctioned in the state court case under 28 U.S.C. § 1927 (allowing the award of costs against counsel who "so multiples the proceedings in any case unreasonably and vexatiously"), because he filed a document after plaintiff had alleged defendant Van Sciver breached his fiduciary duty to defendant Gschwend.

/////

Page 4

Fifth, plaintiff seeks a "lawful determination . . . as to any Lawful Contract," noting neither he, nor Delana Erica Black, Carmen Portillo or Fernando Portillo³ are parties to a lease contract apparently in dispute in the underlying state court case. (Doc. No. 1 at 10.)

Sixth, plaintiff asserts defendant Van Sciver violated the rules of professional conduct and seeks "a lawful determination . . . as to any Conflict of interest, unethical conduct" in the state court case. (Doc. No. 1 at 14-15.)

Finally, plaintiff asserts that one of the exhibits submitted with his complaint is his "Affidavit of Truth" which "has been defaulted by proof of file stamp by the clerk of the court Terry McNally." (Doc. No. 1 at 15.) Plaintiff asks:

Is it not true that: 1. All men are equal under the law? 2. Truth is expressed in the form of an affidavit? 3. An unrebutted affidavit stands as truth in commerce? 4. An unrebutted affidavit becomes judgement [sic] in commerce? 5. Is it not true that Kurt David Van Sciver SBN 263957 is/has interfered with commerce?

(Doc. No. 1 at 15.) Plaintiff requests a "lawful determination" with respect to his inquiry. (Doc. No. 1 at 15.)

Defendant Van Sciver moves to dismiss plaintiff's complaint on three separate grounds: (1) the court lacks subject matter jurisdiction over this dispute; (2) plaintiff has no statutory standing to bring suit under the APA; and (3) the complaint fail to state a cognizable claim. (Doc. No. 1 at 2.) For the reasons set forth below, the court concludes that it lacks subject matter jurisdiction over this matter and that the complaint must be dismissed. Accordingly, the court declines to reach the other two arguments presented by defendant Van Sciver.

Legal Standard

Federal courts are courts of limited subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "It is to be presumed that a cause lies outside this

Page 5

limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (citations omitted). "If jurisdiction is lacking at the outset, the district court has no power to do anything with the case except dismiss." Morongo Band of Mission Indians v. California State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988) (quotations and citation omitted). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).

Aside from cases based on diversity jurisdiction,⁴ district courts have original jurisdiction in matters involving questions of federal law. 28 U.S.C. § 1331. "The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-13 (1936)). Generally, a federal court has jurisdiction under 28 U.S.C. § 1331 even where some constructions of the statute or law at issue would find the plaintiff does not state a claim for relief. Bell v. Hood, 327 U.S. 678, 685 (1946) ("[T]he right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another. For this reason the district court has jurisdiction."). Only where an alleged claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous" should a complaint be found jurisdictionally deficient. Id. at 682-83.

Analysis

As discussed above, the factual scenario underlying plaintiff's complaint pending before this court is unclear in its details. Nonetheless, it appears from the submitted papers and

Page 6

statements made at oral argument that plaintiff's lawsuit is based on the Kern County Superior Court's exercise of its...