Brigner v. Kapetan et al, No. 1:2016cv01431 - Document 9 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS recommending that plaintiff's complaint filed on 10/28/2016 be dismissed without leave to amend for failure to state a claim. These findings and recommendations are referred to Judge Dale A. Drozd, with objections due within fourteen (14) days of service of this order. Order signed by Magistrate Judge Stanley A. Boone on 12/1/2016. (Rooney, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRENTALAN BRIGNER, Plaintiff, 12 13 14 15 Case No. 1:16-cv-01431-DAD-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO STATE A CLAIM v. JOH NICK KAPETAN, et al., (ECF No. 8) Defendants. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 17 Plaintiff Brentalan Brigner, proceeding pro se and in forma pauperis filed a complaint in 18 this action which was dismissed with leave to amend on October 28, 2016. Currently before the 19 Court is Plaintiff’s first amended complaint, filed November 28, 2016. 20 I. 21 SCREENING REQUIREMENT 22 The district court must perform a preliminary screening and must dismiss a case if at any 23 time the Court determines that the complaint fails to state a claim upon which relief may be 24 granted. 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 25 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners). In 26 determining whether a complaint fails to state a claim, the Court uses the same pleading standard 27 used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and plain 28 statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). 1 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 2 of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 3 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 4 5 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 6 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 7 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 8 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 9 short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 10 678 (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient 11 factual content for the court to draw the reasonable conclusion that the defendant is liable for the 12 misconduct alleged. Iqbal, 556 U.S. at 678. Similarly, the court may dismiss a claim as factually frivolous when the facts alleged lack 13 14 an arguable basis in law or in fact or embraces fanciful factual allegations. Neitzke v. Williams, 15 490 U.S. 319, 325 (1989). Further, a claim can be dismissed where a complete defense is 16 obvious on the face of the complaint. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). 17 II. 18 FIRST AMENDED COMPLAINT ALLEGATIONS To the extent that the Court is able to decipher the rambling allegations in the first 19 20 amended complaint, Plaintiff contends that his due process rights were violated when he 21 appeared before Commissioner Heather Mardel Jones and Judge Jon Nick Kapetan because they 22 refused to correct his name and dismiss the suit against him on the basis of no probable cause. 23 (First. Am. Compl. 4,1 ECF No. 8.) Plaintiff alleges that the prosecution has failed to prove that 24 he is a corporation, and the district attorney Vanessa Wong, and Ms. Spurling should have 25 immediately dismissed the charges against him. (Id.) Plaintiff appears to allege that the District 26 Attorney is committing a crime of treason and admitted that her client is the Fresno County 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 28 CM/ECF electronic court docketing system. 2 1 Sheriff Department which proves that she is working with Commissioner Mardel Jones in 2 committing fraud by forging tickets that create the appearance that a crime has been committed. 3 (Id.) 4 Plaintiff states that he was arrested, incarcerated and thrown into the street in the pouring 5 rain by Fresno Superior Court Judges, the District Attorney’s Office, the Fresno County Sheriff’s 6 Department, and California Highway Patrol Officer Arcelus who cut, copied, and pasted his 7 signature onto a ticket. (Id.) Plaintiff contends that Commissioner Mardel Jones, Judge 8 Kapetan, District Attorney Gamoian, Spurling, Vanessa Wong, Kimberly Gaab, Sheri Edmonds, 9 and the Fresno County Sheriff Department failed to do their jobs correctly and he had to walk in 10 the freezing cold streets for six months; survive in the streets of Fresno with major medical 11 conditions; and took pictures of employees of Brian Angus, the Director of the Fresno Economic 12 Opportunity Commission, throwing and breaking his personal belongings. (Id. at 5.) 13 Plaintiff alleges that Commissioner Mardel Jones and her accomplices Judge Kapetan, 14 and District Attorney Gamoian denied five restraining orders. Commissioner Mardel Jones 15 usurped the power of the people by stating that she can do whatever she wants in her courtroom. 16 (Id. at 5.) Plaintiff is requesting a firing squad for each of the defendants for their constant abuse 17 of sovereigns and free people they attack. (Id. at 8.) Plaintiff is seeking $150 billion for the 18 “Terroristic Barbaric Attack repetitively by” Commissioner Mardel Jones, District Attorney 19 Gamoian, and Judge Kapetan. (Id. at 9.) 20 III. 21 DISCUSSION 22 Plaintiff has failed to state a cognizable claim for relief. As Plaintiff was advised in the 23 previous order dismissing his complaint with leave to amend, “[i]n his amended complaint, 24 Plaintiff is required to set forth the specific claim including the basis for federal jurisdiction and 25 the specific acts of the named defendants that demonstrate a violation of his federal rights.” 26 (ECF No. 7 at 8:6-8.) 27 / / / 28 / / / 3 1 A. Judicial and Prosecutorial Immunity 2 1. Judicial Immunity 3 Plaintiff alleges that Commissioner Mardel Jones and Judge Kapetan violated his due 4 process rights by refusing to correct his name and dismiss the charges against him. Absolute 5 judicial immunity is afforded to judges for acts performed by the judge that relate to the judicial 6 process. In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002), as amended (Sept. 6, 2002). “This 7 immunity reflects the long-standing ‘general principle of the highest importance to the proper 8 administration of justice that a judicial officer, in exercising the authority vested in him, shall be 9 free to act upon his own convictions, without apprehension of personal consequences to himself.’ 10 ” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004) (quoting Bradley v. 11 Fisher, 13 Wall. 335, 347 (1871)). This judicial immunity insulates judges from suits brought 12 under section 1983. Olsen, 363 F.3d at 932. 13 Absolute judicial immunity insulates the judge from actions for damages due to judicial 14 acts taken within the jurisdiction of the judge’s court. Ashelman v. Pope, 793 F.2d 1072, 1075 15 (9th Cir. 1986). “Judicial immunity applies ‘however erroneous the act may have been, and 16 however injurious in its consequences it may have proved to the plaintiff.’ ” Id. (quoting 17 Cleavinger v. Saxner, 474 U.S. 193 (1985)). However a judge is not immune where he acts in 18 the clear absence of jurisdiction or for acts that are not judicial in nature. Ashelman, 793 F.2d at 19 1075. Judicial conduct falls within “clear absence of all jurisdiction,” where the judge “acted 20 with clear lack of all subject matter jurisdiction.” Stone v. Baum, 409 F. Supp. 2d 1164, 1174 21 (D. Ariz. 2005). 22 To determine if an act is judicial in nature, the court considers whether (1) the precise act 23 is a normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy 24 centered around a case then pending before the judge; and (4) the events at issue arose directly 25 and immediately out of a confrontation with the judge in his or her official capacity. Duvall v. 26 Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 27 2001) (quoting Meek v. County of Riverside, 183 F.3d 962, 967 (9th Cir.1999)). 28 Here, the actions alleged in the complaint would entitle the judges to judicial immunity. 4 1 Plaintiff contends that the judges refused to change his name on the case and dismiss the charges 2 and refused to issue a restraining order. Plaintiff states that the judicial officials failed to 3 perform their jobs correctly. Plaintiff’s allegations in the complaint against the Fresno Superior 4 Court judges are for actions taken by the judges in their judicial capacity for a cases or cases that 5 were before the judge. Therefore, the named individuals are entitled to judicial immunity. 6 Plaintiff fails to state a cognizable complaint against any judicial officer named in the first 7 amended complaint. 8 2. Prosecutorial Immunity 9 Similarly, prosecutors are immune from liability under 42 U.S.C. § 1983. See Imbler v. 10 Pactman, 424 U.S. 409, 427 (1976); see also Olsen, 363 F.3d at 922 (“Absolute immunity is 11 generally accorded to judges and prosecutors functioning in their official capacities”); Ashelman, 12 793 F.2d at 1075 (holding that judges and prosecutors are immune from liability for damages 13 under section 1983). Where a prosecutor acts within his authority “ ‘in initiating a prosecution 14 and in presenting the state’s case,’ absolute immunity applies.” Ashelman, 793 F.2d at 1076 15 (quoting Imbler, 424 U.S. at 431). 16 While Plaintiff claims that the district attorney refused to dismiss the charges against him 17 or refused to have a restraining order granted, such decisions by the district attorney fall within 18 those actions that are entitled to absolute immunity. Plaintiff fails to state a cognizable claim 19 against any employee of Office of the District Attorney. 20 3. Injunctive Relief 21 Plaintiff seeks to have the judicial officers and district attorney employees brought before 22 a firing squad for their alleged abuse against him. (ECF No. 8 at 8.) “A preliminary injunction 23 is an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense 24 Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A court may grant a preliminary 25 injunction only if the plaintiff establishes four elements: (1) likelihood of success on the merits; 26 (2) likelihood of suffering irreparable harm absent a preliminary injunction; (3) the balance of 27 equities tips in plaintiff’s favor; and (4) injunctive relief is in the public interest.” Leigh v. 28 Salazar, 677 F.3d 892, 896 (2012); Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049 5 1 (9th Cir. 2010). An injunction may only be awarded upon a clear showing that the plaintiff is 2 entitled to relief. Winter, 555 U.S. at 22 (citation omitted) (emphasis added). 3 Here, even if Plaintiff was able to meet the requirements to obtain injunctive relief, the 4 Court could not grant the relief requested. This Court does not have the authority to order that 5 civil litigants be executed even where the plaintiff shows a violation of his federal rights. 6 Accordingly, Plaintiff’s request to have the defendants brought before a firing squad should be 7 dismissed without leave to amend. 8 B. Fraud 9 Plaintiff alleges that Commissioner Mardel Jones conspired with other individuals to 10 commit fraud against him. (ECF No. 8 at 4.) “A plaintiff alleging fraud must overcome a 11 heightened pleading standard under Rule 9(b).” ESG Capital Partners, LP v. Stratos, 828 F.3d 12 1023, 1031 (9th Cir. 2016). To state a claim for fraud, a plaintiff “must state with particularity 13 the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Conclusory allegations of 14 fraud are not enough and the allegations must be specific enough to provide the defendants with 15 notice of the particular conduct which is alleged to constitute the fraud charged. Semegen v. 16 Weidner, 780 F.2d 727, 731 (9th Cir. 1985). This requires the pleadings to set forth the time, 17 place, and nature of the specific acts of fraud. S. Union Co. v. Sw. Gas Corp., 165 F. Supp. 2d 18 1010, 1018 (D. Ariz. 2001). 19 Here, while Plaintiff makes general references to the Uniform Commercial Code, 20 Sherman Anti-Trust Act, Security Act of 1933, Federal Trade Commission, and allegations of a 21 racketeering scheme and municipal bond fraud, the first amended complaint is devoid of any 22 factual allegations to support such violations. 23 Plaintiff generally alleges that the defendants conspired to falsify a citation against him to 24 have him arrested and are continuing to make false entries into the State criminal database. 25 However, Plaintiff has not pled factual allegations to meet the requirements of Rule 9(b). The 26 conclusory allegations contained in the first amended complaint fail to state a cognizable claim 27 for conspiracy to commit fraud. 28 / / / 6 1 C. Officer Arcelus 2 Plaintiff alleges that California Highway Patrol Officer Arcelus cut, copied, and pasted 3 Plaintiff’s signature onto a ticket. However, even if the officer falsified Plaintiff’s signature on a 4 ticket, Plaintiff has not identified, nor does the Court find, any violation of Plaintiff’s federal 5 rights from this act. Plaintiff fails to state a cognizable claim against Officer Arcelus. 6 D. Removal of State Criminal Actions 7 Plaintiff contends that he is being prosecuted for a crime that he did not commit and 8 therefore it is “imperative” that the actions be removed from state court. (ECF No. 8 at 8.) 9 Federal courts are courts of limited jurisdiction. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 10 2000); Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005). As discussed in 11 the October 28, 2016 order dismissing Plaintiff’s complaint, “[t]here are only narrow and limited 12 grounds upon which a state prosecution can be removed to federal court.” (ECF No. 7 at 4.) Under 13 28 U.S.C. §§ 1442(a) and 1442a, any officer of the United States or its courts, any officer of either 14 House of Congress, or any member of the U.S. armed forces that is subject to criminal prosecution 15 may remove such an action that arises from acts done under color of such office or status. 28 U.S.C. 16 §§ 1442(a), 1442a. Additionally, a defendant who is being prosecuted in state court may remove an 17 action to federal court if he seeks to assert a defense based upon federal laws protecting equal civil 18 rights but is unable to because of state law. 28 U.S.C. § 1443. 19 Plaintiff was informed of the circumstances under which this Court could assume 20 jurisdiction of his criminal prosecution and the first amended complaint does not demonstrate 21 any ground to provide for removal of his criminal prosecution. 22 E. Leave to Amend 23 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 24 pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. 25 P. 15(a)(1). Otherwise, a party may amend only by leave of the court or by written consent of the 26 adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). In 27 determining whether to grant leave to amend, the court considers five factors: “(1) bad faith; (2) 28 undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the 7 1 plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2 2004). The factors are not given equal weight and futility alone is sufficient to justify the denial 3 of a motion to amend. Washington v. Lowe’s HIW Inc., 75 F. Supp. 3d 1240, 1245 (N.D. Cal. 4 2014), appeal dismissed (Feb. 25, 2015). 5 In the order dismissing the complaint with leave to amend, Plaintiff was advised that his 6 amended complaint must 7 8 9 10 set forth the specific claim including the basis for federal jurisdiction and the specific acts of the named defendants that demonstrate a violation of his federal rights. Plaintiff’s complaint may not contain any citation to case law or legal argument. The only statutory references shall be for the specific claims alleged and must include sufficient factual allegations to demonstrate a violation of the statute. If Plaintiff fails to do, so this action will be dismissed without leave to amend. 11 (ECF No. 7 at 8:6-12.) Additionally, Plaintiff was required to comply with Rule 10 which 12 requires that his claims must be set forth in numbered paragraphs and each claim must be stated 13 in a separate count. (Id. at 7:26-4.) Plaintiff has failed to comply with the requirements set forth 14 in the October 28, 2016 order granting him leave to file an amended complaint. 15 In this instance, the Court finds that Plaintiff’s failure to comply with the prior order and 16 failure to correct the deficiencies identified in the original complaint demonstrate that it would be 17 futile to grant further leave to amend. Accordingly, Plaintiff’s complaint should be dismissed for 18 failure to state a claim without further leave to file an amended complaint. 19 IV. 20 CONCLUSION AND RECOMMENDATION 21 Based upon the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s complaint, 22 filed October 28, 2016, be DISMISSED without leave to amend for failure to state a claim. 23 These findings and recommendations are submitted to the district judge assigned to this 24 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 25 (14) days of service of this recommendation, Plaintiff may file written objections to these 26 findings and recommendations with the Court. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will 28 review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 8 1 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 2 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 3 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 Dated: December 1, 2016 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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