Yenovkian v. Moor, 21-CV-1071 JLS (MSB)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtHON. JANIS L. SAMMARTINO, UNITED STATES DISTRICT JUDGE.
PartiesVEM VIM YENOVKIAN aka VEM MILLER YENOVKIAN, Plaintiff, v. PHILIP DRURY MOOR and THE CROWN OF ENGLAND, Defendants.
Decision Date18 August 2021
Docket Number21-CV-1071 JLS (MSB)

VEM VIM YENOVKIAN aka VEM MILLER YENOVKIAN, Plaintiff,
v.

PHILIP DRURY MOOR and THE CROWN OF ENGLAND, Defendants.

No. 21-CV-1071 JLS (MSB)

United States District Court, S.D. California

August 18, 2021


ORDER (1) GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS AND (2) DISMISSING PLAINTIFF'S COMPLAINT WITHOUT LEAVE TO AMEND (ECF NOS. 1, 2)

HON. JANIS L. SAMMARTINO, UNITED STATES DISTRICT JUDGE.

Presently before the Court are Plaintiff Vem Vim Yenovkian (aka Vem Miller Yenovkian)'s Complaint (“Compl., ” ECF No. 1) and Application to Proceed in District Court Without Prepaying Fees or Costs (“IFP Mot., ” ECF No. 2). Having carefully considered Plaintiff's Complaint, his IFP Motion, and the applicable law, the Court GRANTS Plaintiff's IFP Motion and DISMISSES Plaintiff's Complaint WITHOUT LEAVE TO AMEND.

IN FORMA PAUPERIS MOTION

All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $402.[1] See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does not specify the qualifications for proceeding IFP, the plaintiff's affidavit must allege poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit demonstrates that paying court costs will result in a plaintiff's inability to afford the “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is destitute. Id.

Here, Plaintiff's affidavit shows that he has no income. See IFP Mot. at 1-2. Plaintiff reports holding a checking account with a balance of approximately $4, 000.00. See Id. at 2. Plaintiff's monthly expenses of $7, 080.00 exceed his monthly income and his checking account balance. See Id. at 4-5. The Court therefore concludes that Plaintiff adequately has demonstrated that paying the $402 filing fee would result in his inability to afford the necessities of life. Accordingly, the Court GRANTS Plaintiff's IFP Motion.

SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

I. Standard of Review

Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez, 203 F.3d at 1126-27. “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted).

“When a court does not have jurisdiction to hear an action, the claim is considered frivolous.” Johnson v. E. Band Cherokee Nation, 718 F.Supp. 6, 6 (N.D.N.Y. 1989). Moreover, “[t]he Court has an independent obligation to determine whether it has subject-matter jurisdiction.” Cox v. Lee, No. CV-20-0275-PHX-DMF, 2020 WL 1904625, at *2 (D. Ariz. Apr. 17, 2020) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.”) (citation omitted). Pursuant to Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action” (emphasis added). As the plain language of Rule 12(h)(3) suggests, this requirement is mandatory. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “‘subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived'”; therefore, “when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety”) (citation omitted).

“The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “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) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[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. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.” Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a complaint if the plaintiff has not supported his contentions with facts. Id. (citing Iqbal, 556 U.S. at 679).

Courts have a duty to construe a pro se litigant's pleadings liberally. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The district court should grant leave to amend if it appears “at all possible that the plaintiff can correct the defect, ” unless the court determines that “the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)).

II. Plaintiff's Factual Allegations

Plaintiff alleges that, on October 15, 2016, his children's mother, Sonia Helen Gulian, kidnapped his children, Child S and Child V, who were born and raised in Los Angeles, California, while he was working on a two-year contract in Toronto, Canada. Compl. at 2. The children were taken from Toronto to the United Kingdom. Id. Plaintiff immediately filed a Hague Application and ultimately succeeded in having his children returned to Canada after twenty-two months of litigation in the courts of the United Kingdom. Id. at 2-3. “[I]n contempt of the Hague Application return order, ” a Canadian judge, Jasmine Akabarali, returned the children back to the United Kingdom within three months of their return to Canada. Id. at 3. / / /

Plaintiff claims he had “no representation, nor presence within the courtroom, ” in the Canadian court process concerning custody of his children that took place in June 2019, despite his requests to continue the proceedings to give him time to recover financially from the Hague process. Id. In light of his finances and the Covid-19 pandemic, Plaintiff was unable to take further action until September 2020, when he applied through the United Kingdom courts for contact with his children. Id. On January 13, 2021, Defendant Philip Drury Moor, a judge (“Judge Moor”), issued an order concerning Plaintiff's contact with his children. Id. Plaintiff alleges “[his] ex-wife immediately breached this order, ” and, at any rate, that the order was “illegal, ” as one condition of Plaintiff's contact with his children was that he not make or publish any videos about them. Id. Plaintiff claims that the only videos he has published about his children have been “unlisted” and “aimed at a select small audience of Lawyers, children's health and welfare experts, and U.S. Government officials” to show the...

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