Morelli v. Hyman

• Decision Date: 28 June 2019
• Docket Number: Civ. No. 19-00088 JMS-RLP
• Parties: ANGELA MICHELLE MORELLI, Plaintiff, v. JOSHUA B. HYMAN, Defendant.
• Court: U.S. District Court — District of Hawaii

ANGELA MICHELLE MORELLI, Plaintiff, v. JOSHUA B. HYMAN, Defendant.

Civ. No. 19-00088 JMS-RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

June 28, 2019

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT, ECF NO. 15, WITH LEAVE TO AMEND

I. INTRODUCTION

Before the court is Defendant Joshua B. Hyman's ("Defendant") Motion to Dismiss pro se Plaintiff Angela Michelle Morelli's ("Plaintiff") Complaint for lack of subject matter jurisdiction. ECF No. 15. For the reasons set forth below, the Motion to Dismiss is GRANTED for failure to state a claim, with leave to amend.

II. BACKGROUND

On February 20, 2019, Plaintiff filed her Complaint against Defendant alleging 42 U.S.C. § 1983 claims for violation of unspecified constitutional and civil rights in connection with a custody dispute involving their minor child. ECF No. 1 at PageID #1, 3. The Complaint alleges that Defendant is the father of Plaintiff's young son. Id. at PageID #4. The Complaint also references numerous federal and state statutes, primarily criminal, and includes allegations of abuse by Defendant. Id. at PageID #2-6. More specifically, the Complaint alleges violations of 5 U.S.C. § 552; 18 U.S.C. §§ 242, 512, 1503, 1510, 1513, 1621, 1001, 241, and 2261A; and Hawaii Revised Statutes ("HRS") §§ 92F-24, 708-820, and 708-906. Id. at PageID # 2-4. The Complaint refers to a "lower court order" and appears to challenge various state court orders regarding custody, child support, and other issues related to a temporary restraining order. Id. at 6. Plaintiff seeks an "award of full physical legal custody along with child support . . . [and] damages and legal fees." Id. at PageID #7.

On April 19, 2019, Defendant filed the instant Motion to Dismiss. ECF No. 15. On June 3, 2019, Plaintiff filed an Opposition and on June 10, 2019, Defendant filed a Reply. ECF Nos. 27-28. Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing.

III. STANDARDS OF REVIEW

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims over which it lacks proper subject matter jurisdiction. The court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) so long as "the jurisdictional issue is [not] inextricable from the merits ofa case . . . ." Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). The moving party "should prevail [on a motion to dismiss] only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Casumpang v. Int'l Longshoremen's & Warehousemen's Union, 269 F.3d 1042, 1060 (9th Cir. 2001) (citation and quotation marks omitted); Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001), abrogated on other grounds by Hertz Corp. v. Friend, 559 U.S. 77 (2010).

B. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for "failure to state a claim upon which relief can be granted." Dismissal is appropriate where the complaint lacks a cognizable legal theory or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). The court may also "dismiss a complaint sua sponte under [Rule] 12(b)(6) . . . without notice where the claimant cannot possibly win relief." Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Barnard v. U.S. Gov't, 635 F. App'x 388, 388 (9th Cir. 2016) (affirming sua sponte dismissal of complaint where the "claims lacked any arguable basis in law or fact").

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet—that the court must accept as true all of the allegations contained in the complaint—"is inapplicable to legal conclusions," and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Rather, "[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." Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer "the mere possibility of misconduct" or "unadorned, the defendant-unlawfully-harmed me accusation[s]" fall short of meeting this plausibility standard. Id. at 679; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

C. Pro Se Pleadings

Because Plaintiff is proceeding pro se, the court liberally construes her Complaint and resolves all doubts in her favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The court must grant leave to amend if it appears that Plaintiff cancorrect the defects in her Complaint, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000), but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013); see also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons "repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment") (citation omitted).

IV. DISCUSSION

Defendant seeks dismissal of Plaintiff's Complaint, arguing that the Complaint fails to assert a cognizable basis for federal subject matter jurisdiction. The court agrees.

A. Subject Matter Jursidiction

In general, Plaintiff may establish the court's subject matter jurisdiction in one of two ways. First, Plaintiff may invoke the court's "diversity jurisdiction," which applies "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a)(1). To premise jurisdiction on diversity, Plaintiff must include in the Complaint allegations regarding both the diversity of citizenship and the proper amount in controversy. See Rilling v. Burlington N. R.R. Co., 909 F.2d 399, 400-01 (9th Cir. 1990). Alternatively, Plaintiff may assert thatDefendant violated the Constitution, a federal law, or treaty of the United States. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").

Plaintiff fails to assert, and apparently cannot assert, the existence of diversity jurisdiction. The Complaint alleges that Plaintiff's mailing address is "PO Box 12431, Lahaina, HI 96761," and that Defendant's work address is "1813 Baldwin Ave., Makawao, HI 96768." ECF No. 1 at PageID #9. Because it appears that both Plaintiff and Defendant are citizens of Hawaii, diversity does not exist.¹ The court therefore finds that Plaintiff has failed to establish a basis for the court's diversity jurisdiction.

Construed liberally, however, the Complaint asserts claims pursuant to 42 U.S.C. § 1983 for violation of unspecified constitutional and civil rights, and for violation of various federal statutes. See id. at PageID #1-4. So construed, there is federal question jurisdiction and therefore, the court has subject matter jurisdiction over this action.²

B. Failure to State a Claim

Plaintiff's Complaint, however, fails to state a plausible federal-law claim.

1. Section 1983 Claims for Damages

"To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. Cty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citation omitted); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.

Here, the Complaint lacks any allegation that Defendant acted under color of state law. To act under color of state law, "the party charged with the deprivation must be a person who may fairly be said to be a state actor . . . because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). That is, "§ 1983 excludes from its reach merely private conduct, no matter how discriminatory orwrong." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted).

A private party may, under limited circumstances, act under color of state law when "he is a willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27 (1908); Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). The Ninth Circuit recognizes "at least four different criteria, or tests used to identify state action: '(1) public function;³ (2) joint action;⁴ (3) governmental compulsion or coercion;⁵ and (4) governmental nexus.'"⁶ Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999))."Satisfaction of any one test is sufficient to find state action, so long as no countervailing factor exists." Id. (citation omitted). But under any of the four tests, "the central question remains whether the alleged infringement of federal rights [is] fairly attributable to the government." Id. at 1096 (citation and internal quotation...