Bryant et al v. Tulare County et al, No. 1:2016cv01542 - Document 6 (E.D. Cal. 2016)
Court Description: ORDER DISMISSING Complaint with 21 Days Leave to Amend; ORDER DENYING Emergency Temporary Restraining Order as Moot 5 . Plaintiffs complaint (Doc. 1) is DISMISSED with leave to amend. Plaintiff may file an amended complaint, consiste nt with this order, within twenty-one (21) days of service of this order. If Plaintiff fails to file a timely amended complaint, Plaintiff's in forma pauperis application will be denied and this case will be closed without further notice. Plaintiff's "Emergency Temporary Restraining Order and Motion Order Show Cause Preliminary Injunction" (Doc. 5) is DENIED as MOOT. Order signed by Magistrate Judge Sheila K. Oberto on 11/29/2016. (Timken, A)
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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 ORDER DISMISSING COMPLAINT WITH 21 DAYS LEAVE TO AMEND Plaintiffs, 8 v. 9 10 CASE NO. 1:16-CV-1542-LJO-SKO MARY J. BRYANT, and THE REAL MOONEY GROVE PROJECT INC., (Doc. 1.) TULARE COUNTY, et al., 11 ORDER DENYING EMERGENCY TEMPORARY RESTRAINNG ORDER AS MOOT Defendants. 12 (Doc. 5) 13 14 I. INTRODUCTION 15 On October 13, 2016, Plaintiff Mary J. Bryant, proceeding pro se, filed a complaint against 16 Tulare County, Neil Pilegard, and Phil Cox (collectively “Defendants”).1 Plaintiff also filed an 17 application to proceed in forma pauperis (IFP). 18 application, the Court was unable to determine whether Plaintiff is to proceed without prepayment 19 of fees in this action. Accordingly, on November 7, 2016, the Court ordered Plaintiff to complete 20 and file the long form IFP application (Doc. 3.), which Plaintiff filed on November 22, 2016 (Doc. 21 4.) (Doc. 2.) Due to omissions in Plaintiff’s 22 Plaintiff purports to allege a cause of action under 18 U.S.C. § 1962 (civil RICO) and 23 possibly claims for false imprisonment and defamation. (See Doc. 1). Plaintiff seeks injunctive 24 relief, compensatory damages, and punitive damages. On November 28, 2016, Plaintiff filed an 25 “Emergency Temporary Restraining Order and Motion Order Show Cause Preliminary 26 Injunction” seeking an order enjoining Defendants’ alleged “Acts of Animal Cruelty, Cutting 27 28 1 Plaintiff’s caption also names “The Real Mooney Grove Project, Inc.,” an unrepresented corporate entity. (Doc. 1, p. 1.) 1 Trimming Oak Trees, Using Rat Poison in Gopher Holes, Constructing, Remodeling, Demolishing 2 any building or structure without permission.” (Doc. 5.) 3 4 II. A. DISCUSSION Screening Standard 5 District courts “may authorize the commencement . . . of any suit, action or proceeding, 6 civil or criminal . . . without prepayment of fees or security therefor, by a person who submits an 7 affidavit that includes a statement of all assets such [person] possess that the person is unable to 8 pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). A district court “shall dismiss 9 the case at any time if the court determines” that the action is frivolous or malicious, or fails to 10 state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); O’Neal v. Price, 531 11 F.3d 1146, 1153 (9th Cir. 2008). An action is “frivolous” if it has no arguable basis in fact or law; 12 the term embraces both inarguable legal conclusions and fanciful factual allegations. Neitzke v. 13 Williams, 490 U.S. 319, 325 (1989); DeRock v. Sprint-Nextel, 584 Fed. Appx. 737 (9th Cir. 2014); 14 see also Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). “A district 15 court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the 16 proposed complaint that the action is frivolous or without merit.” Minetti v. Port of Seattle, 152 17 F.3d 1113, 1115 (9th Cir. 1998); Tripati, 821 F.2d at 1370. However, the “denial of leave to 18 proceed in forma pauperis is an abuse of discretion unless the district court first provides a 19 plaintiff leave to amend the complaint or finds that amendment would be futile.” Rodriguez v. 20 Steck, 795 F.3d 1187, 1188 (9th Cir. 2015); see Tripati, 821 F.2d at 1370. If a court denies a 21 motion to proceed in forma pauperis because the complaint is frivolous and cannot be cured by 22 amendment, then the denial of the motion acts as a dismissal under 28 U.S.C. § 1915(e). 23 Rodriguez, 795 F.3d at 1188. 24 B. Plaintiff’s Complaint is Dismissed with Leave to Amend 25 It is unclear what precisely Plaintiff is attempting to allege. The Complaint is ten pages of 26 handwritten allegations, many of which on a pre-printed form, and attaches two exhibits. See id. 27 The handwritten allegations are extremely difficult to discern. It appears that Plaintiff is alleging 28 that, in several parks in Visalia, California, including Mooney Grove Park, Defendants chop down 2 1 protected oak trees and fail to properly maintain lagoons, causing the development of E. coli, and 2 Defendant Pilegard and “park employees” run over geese in county trucks. 3 Defendants have also contacted the corporate offices of Plaintiff’s non-profit organization, “The 4 Real Mooney Grove Project Inc.,” in order to “mak[e] threats.” (See id.) Defendants have 5 embezzled grant money and used it for other projects. (See id.) Defendants have “hacked” the 6 non-profit’s phones and threatened its members and friends. (See id.) Defendants demanded that 7 “Carl’s Jr.” “shut [] down” the non-profit organization, with whom it had planned a fundraiser. 8 (See id.) Finally, Defendant Tulare County “Public Guardian” arrested Plaintiff for “false elder 9 abuse” and imprisoned her for three days and “falsely slander[ed] [her] in court,” during which 10 “court process” her cousin Robert Turner, her “witness to Grand Jury,” was “snatched . . . against 11 his will, sending him up to Orange County, with no meds, no clothes,” and he later died. (See id.) 12 To the extent that this accurately describes Plaintiff’s allegations, no plausible claims are stated 13 and there are significant problems with Plaintiff’s Complaint. (See Doc. 1.) 14 First, there are three Defendants who are named in the Complaint. However, in many 15 instances, Plaintiff does not specifically identify what each Defendant allegedly did that was 16 improper and caused her harm. It is not sufficient for Plaintiff to use the term “Defendant” 17 without any further identifying information. When multiple defendants are named, the plaintiff 18 must allege the basis of her claims as to each defendant; it is improper to simply lump defendants 19 together. See Sebastian Brown Prods., LLC v. Muzooka, Inc., 143 F. Supp. 3d 1026, 1040 (N.D. 20 Cal. 2015); Flores v. EMC Mortg. Co., 997 F. Supp. 2d 1088, 1103 (E.D. Cal. 2014). In other 21 words, Plaintiff must identify the specific wrongful acts that each Defendant performed and how 22 each Defendant either caused Plaintiff harm or is responsible for Plaintiff’s harm. See id. 23 Second, in order to properly allege a claim, Plaintiff’s Complaint must contain sufficient 24 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 25 Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual 26 content that allows the court draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Id. “Plausibility” means “more than a sheer possibility,” but less than a 28 probability, and facts that are “merely consistent” with liability fall short of “plausibility.” Id. 3 1 Here, the facts are uncertain and no plausible claims are stated. 2 To the extent that Plaintiff is attempting to allege a RICO claim, RICO provides that it is 3 “unlawful for any person employed by or associated with any enterprise engaged in, or the 4 activities of which affect, interstate or foreign commerce, to conduct or participate, directly or 5 indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or 6 collection of unlawful debt.” 18 U.S.C. § 1962(c). “To state a claim under § 1962(c), a plaintiff 7 must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” 8 Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir. 2007) (en banc). A “‘pattern’ . . . requires 9 at least two acts of racketeering activity.” 18 U.S.C. § 1961(5). Plaintiff’s factual allegations do 10 not establish any of these elements. 11 To the extent that Plaintiff is attempting to allege a claim for false imprisonment and/or 12 false arrest, the elements are the same. See Campbell v. City of Milpitas, No. 13-cv-03817-BLF, 13 2015 WL 1359311, at *14 (N.D. Cal. Mar. 25, 2015) (“‘[F]alse arrest’ and ‘false imprisonment’ 14 are not separate torts. False arrest is but one way of committing a false imprisonment, and they 15 are distinguishable only in terminology.” (quoting Collins v. City and Cty. of San Francisco, 50 16 Cal. App. 3d 671, 673 (1975)). 17 imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful 18 privilege, and (3) for an appreciable period of time, however brief.” Young v. County of Los 19 Angeles, 655 F.3d 1156, 1169 (9th Cir. 2011) (internal quotation marks and citation omitted). 20 Plaintiff’s factual allegations do not establish these elements. “Under California law, the elements of a claim for false 21 Finally, to the extent that Plaintiff is attempting to allege a claim for slander, such arises 22 under California law. Under California law, a defamation claim, which may be asserted as a claim 23 for slander (oral) or libel (written), includes the following elements: “(1) a publication that is (2) 24 false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special 25 damage.” KM Strategic Mgmt., LLC v. Am. Cas. Co. of Reading PA, 156 F. Supp. 3d 1154, 1166- 26 67 (C.D. Cal. 2015) (quoting Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1369 (2010). None of 27 Plaintiff’s allegations establish these elements. 28 statements were made in a judicial proceeding, they are barred by California Civil Code section 4 Indeed, to the extent that the alleged false 1 47(b)(2). Section 47(b)(2) provides in relevant part: “A privileged publication or broadcast is one 2 made . . . in any judicial proceeding.” The litigation privilege “applies to any communication: (1) 3 made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by 4 law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical 5 relation to the action.” Johnson v. JP Morgan Chase Bank DBA Chase Manhattan, 536 F. Supp. 6 2d 1207, 1210-11 (E.D. Cal. 2008) (quoting Silberg v. Anderson, 50 Cal.3d 205, 212 (1990)). The 7 litigation privilege has been described as “absolute, regardless of malice and extending even to 8 perjury.” Id. (quoting Jacob B. v. County of Shasta, 40 Cal.4th 948, 956 (2007)). 9 In sum, the Complaint’s allegations are extremely difficult to discern. It is unclear what 10 claims Plaintiff is attempting to pursue, and no plausible claims are stated. At this time, the Court 11 will not grant Plaintiff’s motion to proceed in forma pauperis. Instead, the Court will permit 12 Plaintiff to file an amended Complaint that follows the directives of this order. Cf. Rodriguez, 795 13 F.3d at 1188. An amended complaint must be legible, must identify what causes of action are 14 being pursued, identify the improper actions or basis for liability of each defendant, and the factual 15 allegations must demonstrate plausible claims. To the extent a corporate entity wishes to join in 16 Plaintiff’s amended complaint, the entity must be represented by counsel. 17 California Men's Colony, 506 U.S. 194, 202 (1993) (corporations “may appear in the federal 18 courts only through licensed counsel.” See also United States v. High Country Broadcasting Co., 19 Inc., 3 F.3d 1244, 1245 (9th Cir. 1993); Osborn v. President of Bank of United States, 9 Wheat. 20 738, 829, 6 L. Ed. 204 (1824); Turner v. American Bar Ass’n, 407 F. Supp. 451, 476 (N.D. Tex. 21 1975) (citing the “long line of cases” from 1824 to the present holding that a corporation may only 22 be represented by licensed counsel). If Plaintiff files an amended complaint, it will be reviewed 23 and a determination regarding in forma pauperis status will be made. If Plaintiff does not file a 24 timely amended complaint, then in forma pauperis status will be denied and this case will be 25 dismissed without further notice. See id. 26 ORDER 27 Accordingly, IT IS HEREBY ORDERED that; 28 1. Plaintiff’s complaint (Doc. 1) is DISMISSED with leave to amend; 5 See Rowland v. 1 2. 2 3 days of service of this order; 3. 4 5 If Plaintiff fails to file a timely amended complaint, Plaintiff’s in forma pauperis application will be denied and this case will be closed without further notice; and 4. Plaintiff’s “Emergency Temporary Restraining Order and Motion Order Show Cause Preliminary Injunction” (Doc. 5) is DENIED as MOOT. 6 7 Plaintiff may file an amended complaint, consistent with this order, within twenty-one (21) IT IS SO ORDERED. 8 9 Dated: November 29, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 .
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