Sobocienski v. Haeker et al, No. 2:2020cv01703 - Document 4 (D. Nev. 2020)
Court Description: ORDER granting 1 Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that the Clerk of Court shall file the Complaint (ECF No. 1 -1).IT IS FURTHER ORDERED that Sobocienski's complaint (ECF No. 1 -1) is DISMISSED WITHOUT PREJUDICE.IT IS FURTHER ORDERED that Sobocienski has until Monday, November 30, 2020 to file an amended complaint addressing the issues discussed above. Failure to timely file an amended complaint that addresses the deficiencies noted in this Order may result in a recommendation for dismissal with prejudice.IT IS FURTHER ORDERED that if an amended complaint is later filed, the Clerk of the Court is directed NOT to issue summons on the amended complaint. The Court will issue a screening order on the amended complaint and address the issuance of summons at that time, if applicable. Signed by Magistrate Judge Cam Ferenbach on 10/28/2020. (Copies have been distributed pursuant to the NEF - HAM)
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Sobocienski v. Haeker et al Doc. 4 Case 2:20-cv-01703-KJD-VCF Document 4 Filed 10/28/20 Page 1 of 6 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 5 TRUDY SOBOCIENSKI, Plaintiff, 6 Case No. 2:20-cv-01703-KJD-VCF ORDER vs. 7 DIANA HAEKER, et al., 8 Defendants. APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NO. 1); COMPLAINT (ECF NO. 1-1) 9 10 Before the Court are pro se plaintiff Trudy Sobocienski’s application to proceed in forma 11 pauperis (ECF No. 1) and complaint (ECF No. 1-1). Sobocienski’s (1) in forma pauperis application is 12 granted; (2) her complaint is dismissed without prejudice with leave to amend. 13 DISCUSSION 14 Sobocienski’s filings present two questions: (1) whether Sobocienski may proceed in forma 15 16 17 18 19 20 pauperis under 28 U.S.C. § 1915(e) and (2) whether Sobocienski’s complaint states a plausible claim for relief. I. Whether Sobocienski May Proceed In Forma Pauperis Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 21 pay such fees or give security therefor.” Plaintiff’s application to proceed in forma pauperis includes a 22 declaration under penalty of perjury that plaintiff is unable to pay the costs of these proceedings. (ECF 23 No. 1). Plaintiff’s affidavit states that she makes $26 per hour and that she has $9 in savings. (Id.) 24 Plaintiff’s application to proceed in forma pauperis is granted. 25 Dockets.Justia.com Case 2:20-cv-01703-KJD-VCF Document 4 Filed 10/28/20 Page 2 of 6 1 2 3 II. Whether Sobocienski’s Complaint States a Plausible Claim a. Legal Standard Because the Court grants Sobocienski’s application to proceed in forma pauperis, it must review 4 Sobocienski’s complaint to determine whether the complaint is frivolous, malicious, or fails to state a 5 plausible claim. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil Procedure 8(a)(2) provides that a 6 complaint must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled 7 to relief.” The Supreme Court’s decision in Ashcroft v. Iqbal states that to satisfy Rule 8’s requirements, 8 a complaint’s allegations must cross “the line from conceivable to plausible.” 556 U.S. 662, 680 (2009) 9 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)). Rule 12(b)(6) of the Federal Rules 10 of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can 11 be granted. A complaint should be dismissed under Rule 12(b)(6), "if it appears beyond a doubt that the 12 plaintiff can prove no set of facts in support of her claims that would entitle him to relief." Buckey v. Los 13 14 15 Angeles, 968 F.2d 791, 794 (9th Cir. 1992). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 16 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 17 Gamble, 429 U.S. 97, 106 (1976)). If the Court dismisses a complaint under § 1915(e), the plaintiff 18 should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is 19 clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato v. 20 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 21 22 To create liability for defamation there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the 23 part of the publisher; and (d) either actionability of the statement irrespective of special harm, or the 24 existence of special harm caused by the publication. Lubin v. Kunin, 117 Nev. 107, 109, 17 P.3d 422, 25 2 Case 2:20-cv-01703-KJD-VCF Document 4 Filed 10/28/20 Page 3 of 6 1 2 424 (2001). Under Nevada law, a false light claim exists when one “gives publicity to a matter concerning another that places the other before the public in a false light…if…(a) the false light in 3 which the other was placed would be highly offensive to a reasonable person, and…(b) the actor had 4 knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in 5 which the other would be placed.” Franchise Tax Bd. Of Cal. v. Hyatt, 130 Nev. 662, 685 (2014). The federal RICO statute requires plaintiffs to plead a “pattern of racketeering activity,” which is 6 7 8 9 defined to “require at least two acts of racketeering activity.” Top Rank Builders, Inc. v. Charles Abbott Assocs., No. 2:16-cv-02903-APG-CWH, 2017 U.S. Dist. LEXIS 166905 at 7 (D. Nev. Oct. 6, 2017) (quoting 18 U.S.C. §§ 1961-1962). The Nevada statute requires plaintiffs to show “racketeering 10 activity,” which “means engaging in at least two crimes related to racketeering[.]” Nev. Rev. Stat. §§ 11 207.390-.400). “Criminal intent is thus a[ ] necessary [element] under the Nevada RICO statute a[nd] the 12 federal RICO statute.” Top Rank Builders, 2017 U.S. Dist. LEXIS 166905 at 7. 13 b. Plaintiff’s Complaint 14 Sobocienski’s complaint is styled as a civil rights complaint1, but she only brings claims against 15 16 the defendants for defamation and false light. (ECF No. 1-3). Plaintiff states that the defendants also 17 violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), but she does not list RICO 18 as a cause of action. (Id.) Plaintiff alleges that on April 15, 2016 the Nugget Newspaper in Alaska 19 20 21 22 23 24 25 1 Plaintiff alleges that this case is a civil rights case pursuant to Section 1983, but the complaint does not allege how any of the individual or media defendants violated her civil rights or whether any of the defendants acted under color of law or conspired with state officials. See 42 U.S.C.S. § 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”) 3 Case 2:20-cv-01703-KJD-VCF Document 4 Filed 10/28/20 Page 4 of 6 1 2 published an article about her on that defamed her and cast her in a false light. (Id.) Plaintiff alleges that the nine listed individual defendants (some are employees of the Nugget Newspaper) conspired against 3 her when they allegedly used search engine optimization (SEO) techniques to spread the article online. 4 (Id.) The article is allegedly a news report that states that after a trial, a jury found that Sobocienski 5 committed fraud against her former employer. (Id.) Plaintiff alleges the article is defamatory and casts 6 her in a false light because after the trial and jury verdict, she found a pro bono lawyer who helped her 7 settle the case against her former employer. (Id.) Plaintiff states that on May 24, 2018, the Nugget 8 Newspaper did publish an article about the settlement, but the Nugget still has the report about the 9 original jury verdict against her online. (Id.) 10 The defendant the Nugget published the article in question over four years ago but there is a two11 year statute of limitations for defamation and false light claims measured from the publication date. See 12 NRS 11.190(4)(e); Crabb v. Greenspun Media Group, 2016 Nev. Dist. LEXIS 312 at 18 (two-year 13 14 15 16 17 limitation period applies to defamation and false light claims); see also Roberts v. McAfee, 660 F.3d 1156, 1167 (9th Cir. 2011) (information is considered “‘published’ … when it is first made available to the public.”). If the plaintiff files an amended complaint, she must show why her case is not time-barred. Regarding jurisdiction, plaintiff lives in Nevada now, but she does not allege where she lived in 18 2016 at the time the Nugget published the first article. If plaintiff (1) lived in Alaska, or outside of 19 Nevada, or (2) if the defendants did not know that the plaintiff lived in Nevada at the time of 20 publication, this Court would not have jurisdiction over her claims. See e.g. Calder v. Jones, 465 U.S. 21 22 23 783, 784, 104 S. Ct. 1482, 1484 (1984)(Holding that jurisdiction over Florida based defamation defendants in California was proper because the defendants knew the plaintiff lived in California, and their intentional conduct in Florida was calculated to cause injury to the plaintiff’s reputation in 24 California.) 25 4 Case 2:20-cv-01703-KJD-VCF Document 4 Filed 10/28/20 Page 5 of 6 1 2 The plaintiff also does not specify which portions of the April 2016 article are defamatory or cast her in a false light. The Court can only look to the allegations in the complaint: the plaintiff alleges that 3 the article itself is defamatory and casts her in a false light. Plaintiff admits in the complaint that a jury 4 found her guilty of fraud after a trial. Plaintiff does not allege that the April 2016 article in the Nugget is 5 false: the article accurately reported the jury verdict. “[T]ruth…is an absolute defense to a defamation 6 action.” Van Buskirk v. CNN, 284 F.3d 977, 981 (9th Cir. 2002)(citations omitted). The Court will allow 7 the plaintiff to amend her complaint, but she must specify, in her complaint, which, if any, portions of 8 the article are false, defamatory, or cast her in a false light. 9 Plaintiff does not include a cause of action for RICO, but she mentions RICO in the complaint 10 and alleges only that the defendants conspired against her by using SEO techniques to spread the 2016 11 article online. The plaintiff has not alleged that the defendants acted with criminal intent or engaged in 12 racketeering activities pursuant to either the federal or state RICO statutes. If the plaintiff amends her 13 14 15 complaint and wishes to include a cause of action for RICO violations, she must address these deficiencies. The Court will give the plaintiff one opportunity to amend her complaint. 16 ACCORDINGLY, 17 IT IS ORDERED that Sobocienski’s application to proceed in forma pauperis (ECF No. 1) is 18 GRANTED. 19 IT IS FURTHER ORDERED that the Clerk of Court shall file the Complaint (ECF No. 1-1). 20 IT IS FURTHER ORDERED that Sobocienski’s complaint (ECF No. 1-1) is DISMISSED 21 22 WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Sobocienski has until Monday, November 30, 2020 to file an 23 amended complaint addressing the issues discussed above. Failure to timely file an amended complaint 24 that addresses the deficiencies noted in this Order may result in a recommendation for dismissal with 25 5 Case 2:20-cv-01703-KJD-VCF Document 4 Filed 10/28/20 Page 6 of 6 1 2 prejudice. IT IS FURTHER ORDERED that if an amended complaint is later filed, the Clerk of the Court is 3 directed NOT to issue summons on the amended complaint. The Court will issue a screening order on 4 the amended complaint and address the issuance of summons at that time, if applicable. See 28 U.S.C. § 5 1915(e)(2). 6 7 8 9 NOTICE Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 10 may determine that an appeal has been waived due to the failure to file objections within the specified 11 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 12 objections within the specified time and (2) failure to properly address and brief the objectionable issues 13 14 15 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 16 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, the plaintiff must immediately file 17 written notification with the court of any change of address. The notification must include proof of 18 service upon each opposing party’s attorney, or upon the opposing party if the party is unrepresented by 19 counsel. Failure to comply with this rule may result in dismissal of the action. 20 21 IT IS SO ORDERED. DATED this 28th day of October 2020. 22 _________________________ CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 23 24 25 6
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