(PS) Gifford v. Kampa et al, No. 2:2017cv02421 - Document 99 (E.D. Cal. 2022)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 8/30/22 RECOMMENDING that Defendants' 86 motion to dismiss be granted and that this action be dismissed with prejudice for failure to state a claim upon which relief can be granted. Matter REFERRED to District Judge Troy L. Nunley. Within 14 days after being served with these findings and recommendations, any party may file written objections with the Court. (Kastilahn, A)
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(PS) Gifford v. Kampa et al Doc. 99 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER GIFFORD, 12 Plaintiff, 13 14 No. 2:17-CV-2421-TLN-DMC v. FINDINGS AND RECOMMENDATIONS PETER KAMPA, et al., 15 Defendants. 16 Plaintiff, who is proceeding pro se, brings this civil action. 1 Pending before the 17 18 Court is Defendants’ motion to dismiss, ECF No. 86. The matter has been submitted on the 19 record without oral argument. In considering a motion to dismiss, the Court must accept all allegations of 20 21 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 22 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 23 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 24 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 25 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 26 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 27 28 This case is related to Gibbs v. Hanson, et al., 2:21-cv-0119-TLN-DMC. See ECF No. 70 (related-case order). 1 1 Dockets.Justia.com 1 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 2 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 3 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 4 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 5 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 6 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 7 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 8 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 9 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 10 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 11 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 12 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 13 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 14 Iqbal, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 15 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 16 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 17 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 18 to relief.” Id. (quoting Twombly, 550 U.S. at 557). In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 19 20 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 21 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 22 documents whose contents are alleged in or attached to the complaint and whose authenticity no 23 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 24 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 25 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 26 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 27 1994). 28 /// 2 1 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 2 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 3 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 4 5 6 7 I. BACKGROUND A. First Amended Complaint This matter was previously before the Court on various motions challenging 8 Plaintiff’s first amended complaint. In the first amended complaint, Plaintiff named the 9 following as defendants: 10 Peter Kampa 11 Robert Puckett, Sr. 12 Patricia Slote 13 Melissa Tulledo 14 Robert Winston 15 Julie Bowles 16 Clint Dingman 17 Ernest Goff 18 Kevin Dixon 19 The Hornbrook Community Services District (HCSD) 20 The Hornbrook Community Bible Church (HCBC) 21 Steven Crittenden 22 Duke Martin 23 James Soares 24 See ECF No. 17. 25 Defaults were entered as to Defendants Slote, Dixon, HCBC, Crittenden, 26 Martin, and Soares on May 23, 2019, see ECF Nos. 29, 30, 31, 32, 33, and 34 (Clerk’s entries 27 of default), and Plaintiff’s motions for default judgment have been denied, see ECF No 82 28 (District Judge order adopting findings and recommendations). Defendant Winston has been 3 1 dismissed. See ECF No. 82. 2 On March 25, 2021, the Court issued findings and recommendations 3 recommending that Plaintiff’s first amended complaint be dismissed with further leave to 4 amend as to some claims and with prejudice as to other. See ECF No. 71. The Court noted: 5 . . .Plaintiff alleges his claims arise under the First, Fourth, and Fourteenth Amendments to the United States Constitution, as well as various federal statutes, including the Clean Water Act and the Safe Drinking Water Act. See id. [ECF No. 17] at 1. Plaintiff also alleges various state law claims. See id. 6 7 8 *** 9 14 Plaintiff collectively refers to Defendants Puckett, Tulledo, and Slote, who are alleged to be former members of the board of directors of Defendant HCSD, as the “Board Defendants.” Id. at 3. Plaintiff collectively refers to Defendants Bowles, Dingman, Winston, Goff, Kampa, and Dixon, who are alleged to be employees and/or contractors of Defendant HCSD, as the “employee and contractor Defendants.” ECF No. 17, pg. 3. According to Plaintiff: “The ‘Board Defendants’ took wrongful actions in their official capacities as public officials and officers, and/or under color of law of their positions, and also failed to properly supervise, train, and/or control, the HCSD employee and contractor Defendants. . . .” Id. 15 ECF No. 71, pgs. 2-3. 16 The Court further noted that the first amended complaint contained no specific 17 allegations as to Defendant Tulledo, who Plaintiff alleged to be among the Board Defendants. 18 See id. at 3. As to those individual defendants against whom defaults were not entered and 19 who have not been dismissed, the Court outlined Plaintiff’s specific allegations as follows: 2 10 11 12 13 20 Defendant Robert Puckett, Sr. 21 Plaintiff alleges Defendant Puckett was the president of the HCSD board and initiated the “common plan” which was ratified by Defendants Tulledo, Winston, Kampa, Dingman, Goff, and Dixon. ECF No. 17, pg. 6. According to Plaintiff, this “common plan” was adopted to allow for operation of the HCSD in an “unsafe manner which failed to comply with Federal, State, and Local laws; and to create, institute, and enforce policies, customs, and practices, all in violation of Federal, State, and local laws. . . .” Id. 22 23 24 25 26 27 28 Because Defendant HCSD can only have acted through its officers and directors, allegations against whom are outlined herein, the Court does not include a summary of Plaintiff’s allegations against HCSD. The Court focuses on Plaintiff’s allegations against the non-defaulting individual defendants who remain in the action – Puckett, Bowles, Dingman, Goff, and Kampa. The Court provides this detailed summary of Plaintiff’s prior pleading to allow for comparison with the current operative pleading. 4 2 1 2 3 4 5 6 7 8 9 10 11 12 13 Plaintiff claims Defendant Puckett’s conduct resulted in undercharging and waiving fees and charges for certain customers, failing to impose and collect the “standby fee” as to each parcel, and failing to comply with provisions of the California Water Code. Id. Plaintiff also claims Defendant Puckett conspired with Defendant Winston to “approve Winston’s intervention in several HCSD administrative matters, and/or Siskiyou County Superior Court matters being prosecuted by Plaintiff and other persons, as well as matters in the Third District Court of Appeals, without any BOD [board of directors] approval prior to Winston’s appearing therein.” Id. at 6-7. Plaintiff alleges these appearances violated provisions of the California Business and Professions Code. See id. at 7. Plaintiff alleges the “Board Defendants, Kampa, Dingman, Goff, Dixon, and Winston” acted to allow defendant Dingman to “work on, and operate (including by the addition of chemicals to the water supply) the HCSD water production, treatment, and distribution facilities without any certification, or license to do so,” in violation of provisions of the California Health and Safety Code. ECF No. 17, pg. 7. Plaintiff adds: . . .These same Defendants agreed, conspired, and acted to allow Dingman to occupy and utilize for his personal purposes, the water production, treatment facilities, and real property of the HCSD free of charge, and without compensation for the costs incurred to the HCSD and the public by his doing so.” 14 Id. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff further claims the Board Defendants conspired with Defendant Winston to “wrongfully and corruptly have the HCSD divert public funds to Winston for former Board member Michelle Hanson’s private legal fees in Siskiyou County Superior Court cases. . . .” Id. Finally, Plaintiff outlines a number of allegations of further wrongdoing on the part of Defendant Puckett, including: an unpermitted and improperly altered septic system; derelict vehicles leaking toxic oils and fluids onto the ground and public streets, rivers, and creeks; decrepit sheds, lean-tos, outbuildings, trailers, fifth wheels, “and the like in a manner harboring rodents and vermin”; improperly stored pesticides, rodenticides, and fungicides in trailers in which Defendant Puckett permits people to live; maintaining a fire hazard in the form of an improperly modified residential electrical system; and maintaining large amounts of debris. Id. at 7-8. *** Defendant Julie Bowles Plaintiff claims Defendant Bowles was an officer and employee of Defendant HCSD, serving as its treasurer. See id. at 15. According to Plaintiff: “No agreement exists to indemnify Bowles pursuant to Govt. Code § 995 (or otherwise) in her contract with the HCSD.” Id. Plaintiff alleges Defendant Bowles collaborated with other defendants in the “improper conduct of illegally non- and/or improperly agendized, and/or non-public meetings by improperly meeting with them 5 1 individually and serially, as a group (or portions thereof) via personal contact. . . . for the purpose of discussing official HCSD-related ‘public business,’ including how HCSD funds would be (improperly) diverted to Winston, Bowles, and Dingman; which HCSD customers should get (wrongfully) reduced and/or waived fees and charges and how to alter the billing to affect and conceal those reductions and waivers; and, how to submit time sheets and ‘pay stubs’ for Dingman that were in excess of his contracted rate of pay and hours, and/or which contained false claims for hours and/or jobs worked (and how to prevent all those documents, and the associated timesheets, from being revealed to Plaintiff, and the public).” Id. Plaintiff further claims Defendant Bowles improperly diverted public funds to friends and acquaintances. See id. Plaintiff alleges: 2 3 4 5 6 7 8 These accts by Bowles in the operation of the HCSD was part of the conspiracy with the Board Defendants to cause disruption and upset of the operation of the HCSD, and of Plaintiff’s position and duties as a Director and Secretary, and was undertaken in part as retaliation for Plaintiff’s complaints to the HCSD Board and government agencies about violation of law concerning the HCSD’s operations, and Bowles’ lack of competence. 9 10 11 12 ECF No. 17, pgs. 15-16. 13 Finally, Plaintiff alleges Defendant Bowles submitted $2,250.00 worth of false claims for payment for services for HCSD she did not perform. See id. at 16. 14 15 Defendant Clint Dingman 16 Plaintiff alleges Defendant Dingman was the “Systems Trainee” and “Shift Operator” for defendant HCSD’s water production and treatment facilities. See id. According to Plaintiff, Defendant Dingman lacked the certifications for this position required under state law. See id. Plaintiff claims the Board Defendants, Kampa, Goff, and Dixon “conspired, agreed, and acted to wrongfully provide compensation, benefits, indemnification, and/or other pecuniary and/or non-pecuniary benefits to Dingman which were not contractually specified, and/or which were granted outside of an agendized, public meeting of the Board of the HCSD. . . .” Id. In particular, Plaintiff complains that other defendants allowed Defendant Dingman “to reside, with his dog, at the HCSD water plant, while also utilizing that facility for his personal purposes (including as a dog run – permitting the animal to defecate all over the property without Dingman cleaning it up), to store belongings, etc – all without any payment by Dingman for those uses.” Id. Plaintiff further contends Defendant Dingman and other defendants conspired to arrange for Defendant Dingman to receive payments for services he did not actually perform. See id. at 16-17. Finally, Plaintiff alleges Defendant Dingman conspired with other defendants to carry out the “common plan.” Id. at 17. 17 18 19 20 21 22 23 24 25 26 27 /// 28 /// 6 1 Defendant Ernest Goff 2 According to Plaintiff, Defendants Goff and Dixon “represented themselves as independent contractors, as the Chief Systems Operator(s) for the HCSD, as agents of the HCSD and Board Defendants, and supervisors of Dingman.” Id. at 18. Plaintiff claims that, in these capacities, Defendant Goff and Dixon “had a duty to regularly inspect, oversee, supervise, perform, and directly control the daily operations of the water treatment plant and distribution system as provided by Federal and Sate law. . . .” Id. (emphasis in original). Plaintiff alleges Defendants Goff and Dixon are liable to him for failing to do so. See ECF No. 17, pg. 18. Plaintiff further claims: 3 4 5 6 7 8 14 During the times material to this complaint, Goff and Dixon acted in concert with the Board Defendants, Bowles, and Dingman to extract improper payments from the HCSD, to create and distribute false public documents and reports to state enforcement agencies concerning the operation of the HCSD, to operate the HCSD in a manner contrary to law and thus causing a nuisance per se to Plaintiff and the public, and to wrongfully prevent inspections and oversight of the HCSD facilities. Goff and Dixon, despite their insistence as being classified “contractors” to the HCSD, also wrongfully obtained indemnification, defense, and other expenses of public money from the HCSD to which they were not entitles, and which were thus improper gifts of public funds. 15 Id. at 18-19. 9 10 11 12 13 Plaintiff alleges that the actions of Defendants Goff and Dixon were ratified by Slote, Puckett, Kampa, and the HCSD. See id. at 19. 16 17 Defendant Peter Kampa 18 Plaintiff alleges Defendant Kampa was the General Manager of the HCSD and, as such, was the direct supervisor of Dingman, Goff, and Dixon. See id. at 20. According to Plaintiff, Defendant Kampa is liable because he “agreed, assisted, aided, and abetted Slote, Puckett, Goff, Dixon, Dingman, and the HCSD in the common plan to create, file with the State Water Board, and distribute, false public records, consisting of documents, logs, and reports concerning the operation of the HCSD and its facilities.” Id. Plaintiff additionally claims: “At no time has Kampa actually performed any of his General Manager duties within the boundaries of the HCSD, instead simply ignoring those duties in favor of using the phone to make calls to the HCSD Board meetings as well as ex parte communications via phone and email to the individual Board members, Goff, Dixon, Dingman, and/or Winston in violation of the Brown Act, and to plan and/or facilitate such violations by the other Defendants.” Id. at 20-21. 19 20 21 22 23 24 25 26 ECF No. 71, pgs. 3-8. 27 28 /// 7 1 Plaintiff alleged the facts set forth in the first amended complaint gave rise to 14 2 federal “counts” (collectively styled as Plaintiff’s First Claim for Relief) and 25 state law 3 “counts” (collectively styled as Plaintiff’s Second Claim for Relief). See ECF No. 17, pgs. 31- 4 44. In the March 25, 2021, findings and recommendations, the Court recommended that 5 Plaintiff’s federal claims be dismissed as follows: 6 a. Plaintiff’s due process claims be dismissed with leave to amend; 7 b. Plaintiff’s equal protection claims be dismissed with leave to amend; c. Plaintiff’s retaliation claim be dismissed with leave to amend; d. Plaintiff’s claims relating to the denial of the right to vote be dismissed with leave to amend; 11 e. Plaintiff’s federal statutory claims be dismissed with prejudice; 12 See ECF No. 71, pg. 29. 13 The Court further recommended that Plaintiff’s claims against Defendant 8 9 10 14 Winston be dismissed with prejudice. See id. Finally, the Court recommended that 15 Defendants’ motions to dismiss Plaintiff’s state law claims be denied without prejudice to 16 renewal at a later date should the Court determine that Plaintiff states a cognizable federal 17 claim and elects to exercise supplemental jurisdiction over state law claims. See id. The District Judge adopted the March 25, 2021, findings and recommendations 18 19 in full on September 23, 2021. See ECF No. 82. In doing so, the District Judge directed 20 Plaintiff to file a second amended complaint within 30 days of the date of the September 23, 21 2021, order. See id. 22 23 B. Second Amended Complaint On October 25, 2021, the Court granted Plaintiff an extension of time to file a 24 second amended complaint as directed by the District Judge. See ECF No. 84. Plaintiff timely 25 filed his second amended complaint on December 20, 2021. See ECF No. 85. As with the 26 first amended complaint, Plaintiff continues to name the following: (1) Kampa; (2) Puckett; 27 (3) Slote; (4) Tulledo; (5) Bowles; (6) Dingman; (7) Crittenden; (8) Martin; (9) Soares; (10) 28 and HCSD. See id. at 1. 8 1 1. 2 As with the original and first amended complaints, Plaintiff alleges that the facts General Allegations 3 outlined in the second amended complaint give rise to claims under the First, Fourth, and 4 Fourteenth Amendments to the United States Constitution. See id. He also asserts claims 5 under 42 U.S.C. §§ 1983, 1985, 1986, 1988, and 2000e. See id. Plaintiff asserts various state 6 law claims under this Court’s supplemental jurisdiction. See id. Though Plaintiff’s federal 7 statutory claims have been dismissed with prejudice, Plaintiff again alleges violations of the 8 Clean Water Act and the Safe Drinking Water Act. See id. at 4. 9 10 The gravamen of Plaintiff’s allegations appears to be summarized in paragraph 11 of the second amended complaint as follows: 11 11. Based on their shared resentment of the lawyer fees they incurred from defending against Plaintiff’s actions in Court, his assistance to other with their legal actions against the District (by serving papers, appearing as a witness, and the like), as well as Plaintiff’s criticisms of their actions regarding the HCSD that Plaintiff expressed at Board meetings, in emails and letters to the HCSD and its Officers, and by complaints to government agencies, the Board Defendants, the HCSD, and HCSD employee Defendants herein each and all stated, and/or agreed with statements made by individual Board Defendants, to the effect that they would exclude Plaintiff from any opportunity to participate in, or bid on, and public works for the HCSD “because of the lawsuits” he had filed against the HCSD, its officers, and employees. 12 13 14 15 16 17 Id. at 5-6. 18 19 Plaintiff alleges Defendants acted in a “coordinated matter” to discriminate 20 against Plaintiff with respect to bidding for public contracts offered by HCSD for various jobs 21 and services. See id. at 6. Plaintiff also alleges that Defendants would not allow Plaintiff to 22 “hook up the property upon which he resides, nor residences for which he provides contracting 23 services, to the HCSD water system on the same terms and conditions as all of the other 24 parcels with connections to the water mains in the District. . . .” Id. Plaintiff concludes 25 Defendants’ alleged conduct was retaliatory. See id. at 7. 26 /// 27 /// 28 /// 9 1 2. 2 Plaintiff then outlines his allegations as to each named defendant as follows: 3 4 Allegations as to Individual Defendants a. Puckett In very general terms, Plaintiff alleges that Defendant Puckett “initiated the 5 common plan” between February 15, 2017, and November 29, 2017. See id. at 8. According 6 to Plaintiff, though without supporting details, Defendant Puckett’s conduct was “aided, 7 abetted, encouraged, and ratified” by other named defendants, Tulledo, Kampa, Dingman, and 8 Goff. See id. Plaintiff claims this resulted in operation of the HCSD in an unsafe manner in 9 violation of federal, state, and local laws. See id. Plaintiff claims without specificity that fees 10 11 and charges were improperly waived for certain customers. See id. Next, Plaintiff alleges that Puckett conspired with other Board Defendants to 12 approve attorney Robert Winston’s “intervention in several HCSD administrative, and/or 13 Siskiyou County Superior Court, matters being prosecuted by Plaintiff and other persons. . . .” 14 Id. Plaintiff claims this was done without approval of the HCSD board in violation of the 15 Brown Act and California Government Code § 61045. See id. 16 Finally, Plaintiff alleges: 17 20. During times material to this complaint, Puckett initiated the common plan and actively solicited and obtained agreement with the other Board Defendants to wrongfully ignore and de facto deny without any hearing, Plaintiff’s repeated requests to hook up property upon which he resides, and residences for which he provides contracting services, to the HCSD water system on the same terms and conditions as all of the other connections in the District. The agreement Puckett engendered was further that Plaintiff would be denied, without any opportunity for a hearing, his right to consideration of, and to actual indemnification of, medical costs incurred by Plaintiff for injuries sustained while undertaking duties as a Director of the HCSD. At the time Puckett undertook to create and implement this plan, and to recruit the other Defendants therein by obtaining their agreements to do so, Puckett knew that the disparate treatment against Plaintiff concerning refusal to indemnify his medical costs, and in refusing to permit him to hook up his own and others’ residences to the HCSD water system, served no legitimate government purpose, and so acted arbitrarily, capriciously, and recklessly, without any concern for harms that might befall Plaintiff. Puckett thereafter used his position as President of the HCSD to control the agendas of the Board’s meetings to make sure that the objects of the agreement were achieved by assuring that Plaintiff’s issues never came before the Board of Directors at any public meeting, and by refusing to allow any discussion of Plaintiff’s issues when he 10 18 19 20 21 22 23 24 25 26 27 28 1 raised them himself at public meetings of the Boards. 2 Id. at 10. 3 b. Slote Plaintiff alleges that Defendant Slote was a member of the Board of Directors of 4 5 HCSD. See id. According to Plaintiff, and in very general and unspecific terms, Slote “acted 6 in concert with, aided, and abetted the other Defendants (and thus the HCSD), to act in concert 7 to engage in that conduct set forth in the sections pertaining to Defendants Puckett, Tulledo, 8 Dingman, Kampa, the HCSD, Goff, and Bowles.” Id. Plaintiff states that Slote held unlawful 9 non-public meetings of the HCSD board in violation of state law by way of “daisy chain” 10 and/or “spoke and wheel” meetings. Id. Plaintiff claims Slote wasted public funds. See id. at 11 11. Next, Plaintiff alleges Slote acted without HCSD board authorization to ratify 12 13 improper pay increases, hours, and payments to Defendant Dingman which were not in 14 compliance with Dingman’s contract with the district. See id. Again without detail, Plaintiff 15 claims Slote “undertook this wrongful conduct by creating and engaging in an unofficial, non- 16 Board-authorized ‘review’ of those increases of pay and hours to Dingman. . . .” Id. 17 According to Plaintiff: 25. These actions by Slote resulted in Dingman, during the tie material to this complaint, wrongfully being paid excessive wages, false claims for hours purportedly – but not actually – worked, and other payments that were not part of his contract for employment. These improper payments served no legitimate or reasonable public/ governmental purpose. 18 19 20 21 Id. at 12. 22 Plaintiff alleges that Slote’s “wrongful acts” were part of an “agreement and 23 24 plan between her, Puckett, Tulledo, Dingman, and Kampa, to take joint action to permit 25 Dingman to falsely claim additional pay that he was not entitled to. . . .” Id. 26 /// 27 /// 28 /// 11 1 Plaintiff further claims that Slote colluded with other defendants to permit and 2 encourage the unsanitary and unlawful operation of water treatment facilities. See id. at 13. 3 Plaintiff does not say who specifically the “other defendants” were, or how they allegedly 4 colluded. 5 Finally, Plaintiff claims: 6 29. Slote, in cooperation and agreement with the other Board Defendants, and Kampa, acted to wrongfully deny Plaintiff access to, or inclusion on, the list of contractors for jobs relating to upkeep, expansion, and/or repair of the HCSD water system, and other public works jobs, pursuant to provisions of the Public Contracts Code, and Uniform Construction Costs Accounting Act as adopted by the HCSD. Slote did so because of Plaintiff’s protected actions in filing legal actions in the Courts; because of complaints Plaintiff made to various State of California agencies concerning improperly administration and operation of the HCSD; and because of Plaintiff’s outspoken opposition to the actions and conduct of the Board and HCSD employees he expressed to the Slote and the other Board Members at open and public meetings of the HCSD Board of Directors. Plaintiff knows this is so because Slote, at one public meeting, specifically stated angrily that Plaintiff would “never” be allowed to do any work for the HCSD “because of all the lawsuits” Plaintiff has filed against the District. When Slote made that statement, the other Board Defendants present at the meeting indicated their agreement. 7 8 9 10 11 12 13 14 15 Id. 16 17 c. Bowles Plaintiff states that Bowles was the Bookkeeper for HCSD. See id. at 17. As 18 19 with the defendants discussed above, Plaintiff alleges Defendant Bowles “aided, abetted, and 20 assisted” the Board Defendants to hold improper non-public meetings of the HCSD. Id. The 21 gravamen of Plaintiff’s contentions against Bowles are set forth in paragraph 42 of the second 22 amended complaint as follows: 23 42. Bowles agreed to, collaborated with, aided, abetted, and assisted the Board Defendants, Goff, Dingman, and Kampa, with the Board Defendants’ wrongful conduct herein, and in diverting HCSD funds to friends and acquaintances by: failing to properly impose fees, assessments [footnote omitted], and charges to certain customers [footnote omitted] via billing and otherwise [footnote omitted] as well as altering and falsifying records concerning those customers’ accounts (including deletion of past due amounts, penalties, fees, etc.); and, willfully concealing and destroying those public records. All of this 24 25 26 27 28 /// 12 1 conduct was performed without any legitimate or reasonable public purpose. 2 Id. at 18. 3 4 5 d. Dingman Plaintiff alleges that Dingman was an officer, agent, and employee of the HCSD 6 as the “purported ‘Systems Trainee’ and ‘Shift Operator’ of the HCSD water production and 7 treatment facilities. . . .” Id. at 18. Plaintiff claims that Dingman “failed to obtain and 8 maintain. . . certifications required of a water treatment operator.” Id. Plaintiff also alleges 9 that Dingman, the Board Defendants, Kampa, and Goff “conspired, agreed, and acted to 10 wrongfully provide compensation, benefits, indemnification, and/or other pecuniary and/or 11 non-pecuniary benefits to Dingman. . . .” Id. at 19. Plaintiff complains that Dingman was 12 allowed to live with his dog at the water treatment and facility. See id. Plaintiff adds that, as 13 part of this conspiracy, Dingman was paid for hours he did not work. See id. Again, Plaintiff 14 does not describe the details of the alleged conspiracy. 15 At paragraphs 49 and 50 of the second amended complaint, Plaintiff contends: 16 24 49. At all times relevant herein, Dingman agreed to, assisted, aided, and abetted, Goff, Kampa, Board Defendants, and HCSD’s common plan to create, file with the State Water Board, and distribute, false public records, documents, logs, and reports concerning the operation of the HCSD and its facilities. Kampa, Dingman, and the HCSD, also wrongfully failed to create, maintain, and file with the State, various required records, testing and treatment logs, and other documents, while not actually performing the work and duties mandated by law to make the HCSD system safe and functional – all of which resulted in lack of water capacity, poor water qualify, incorrectly treated water, and water that was toxic due to Chlorine. 50. Dingman’s wrongful operation of the water production, treatment, and distribution facility of the HCSD [footnote omitted], in manners contrary to law, and while not having the proper Treatment Operator’s Certificate from the State of California, in conspiracy with, and as directed by the Board Defendants, Kampa, and Goff, was willfully negligent, unlawful, and a nuisance per se [footnote omitted]. 25 Id. at 20. 26 e. 17 18 19 20 21 22 23 27 28 Goff Plaintiff states that Goff “represented himself” as the Chief Systems Operator for the HCSD and, as such, as Dingman’s supervisor. Id. Plaintiff alleges that “Goff acted in 13 1 concert with the Board Defendants, Bowles, Kampa, and Dingman to extract improper 2 payments from the HCSD for duties he was supposed to perform but did not. . . .” Id. Plaintiff 3 further alleges that Goff operated HCSD facilities in a manner inconsistent with law, causing a 4 nuisance. See id. According to Plaintiff, Goff did so “with the agreement, ratification, and 5 assistance of Slote, Puckett, Kampa, and the HCSD. . . .” Id. at 20-21. 6 7 8 The gravamen of Plaintiff’s claim against Goff appears to be set forth in paragraph 57: 16 57. Goff knowingly permitted Dingman to operate the HCSD water production, treatment, and distribution facilities in an unsafe manner, and in a way that was contrary to Federal, State [footnote omitted], and local laws. Goff failed to actually supervise or direct Dingman during the performance of any of the tasks Dingman performed for the HCSD. Goff failed to maintain proper logs and documentation of water use and/or the water treatment and distribution systems of the HCSD; failed to provide for an undertake testing of the “crossconnections” to the HCSD distribution system as required by law; failed to give notice to Plaintiff, the public and to the State concerning multiple occasions Dingman caused Chlorine to exceed the maximum contaminant level as set by the State of California while also assisting Dingman in hiding those events form the public and from the State Water Resources Control Board; and, knowingly permitted Dingman to conduct water treatment and distribution activities/operations at the HCSD water plant and otherwise, while Dingman did not have certifications required by the State. 17 Id. at 21-22. 9 10 11 12 13 14 15 18 19 f. Kampa Plaintiff states that Kampa was the General Manager of the HCSD and direct 20 supervisor of Dingman and Goff. See id. at 22. According to Plaintiff, despite being 21 responsible for the day-to-day operations of the HCSD, Kampa “simply us[ed] the phone from 22 his residence in Southern California to make calls to HCSD Board meetings, the individual 23 Board members, Goff, and Dingman.” Id. As with the other individual defendants, Plaintiff 24 alleges in general terms that Kampa “agreed with, assisted, aided, abetted, Slote, Puckett, Goff, 25 Dingman, and the HCSD in the common plan to create, file with the State Water Board, and 26 distribute, false public records, consisting of documents, logs, and reports concerning the 27 operation of the HCSD and its facilities.” Id. at 22-23. Plaintiff does not state which records 28 were false or otherwise describe with any particularity the alleged conspiracy. Plaintiff claims 14 1 Kampa ignored his General Manager obligations. See id. at 23. 2 According to Plaintiff: 3 12 62. As the General Manager for the HCSD, Kampa had a mandatory duty imposed by law to regularly inspect, oversee, supervise, and provide for the direct control by properly State-certified personnel, the daily operation of the water treatment plant and distribution system as mandated by Federal and State laws [footnote omitted], and the HCSD Bylaws. Kampa failed to perform those duties by: failing to maintain and provide for the use of the “creek diversion” of the HCSD and associated water rights, thus jeopardizing the HCSD’s diversion rights with the State [footnote omitted]; failing to supervise and direct Dingman concerning the maintenance and safety of the water plant and surrounding area; failing to require that Dingman obtain and maintain Water Treatment and/or Distribution Operator certifications from the State of California while Dingman was operating the HCSD’s facilities as was required by law; failing to timely and properly respond to deficiency notices by the State Water Board; and, failing to timely, and/or properly (or, sometimes, at all) respond to CPRA requests by Plaintiff in the manner provided by law concerning the public records of the HCSD’s operations. Kampa also charged the HCSD for supposed “General Manager” services relating to these duties, but without actually providing them as promised. 13 Id. 4 5 6 7 8 9 10 11 14 g. Crittenden 15 Plaintiff claims Crittenden is a member of the HCSD board. See id. at 24. 16 Plaintiff alleges that Crittenden “engaged in improper, ex parte ‘spoke and wheel,’ ‘daisy 17 chain’ meetings, and other wrongful, corrupt, conduct with Puckett and Slote, and through 18 them Bowles and Dingman, in order to agree and act with them to obtain legally impermissible 19 gifts of public funds to the benefit of HCBC [Hornbrook Community Bible Church], and 20 himself, in the form of unlawfully reduced and/or waived water rates, fees, and charges.” Id. 21 Plaintiff asserts that Crittenden conspired with other defendants to obtain reduced water rates 22 for the church and the attached parsonage. See id. at 24-25. Once again, Plaintiff does not 23 allege any specific facts relating to a conspiracy. 24 h. Martin 25 Plaintiff alleges that Martin is a resident of Siskiyou County, a water customer 26 of the HCSD, and owner of Crossroads Mini Storage and adjoining residential property. See 27 id. at 25. As with Crittenden, Plaintiff alleges that Martin conspired with other defendants to 28 obtain reduced water rates. See id. Plaintiff claims this amounted to a gift of public funds. 15 1 See id. at 26. Martin is not alleged to be a state actor. 2 i. 3 Soares Plaintiff alleges that Soares is a resident of Siskiyou County, an HCSD water 4 customer, and owner of at least one rental property within the boundaries of the district. See 5 id. As with Crittenden and Martin, Plaintiff contends that Soares conspired with other 6 defendants in order to obtain improper gifts of public funds in the form of reduced and/or 7 waived water fees. Soared is not alleged to be a state actor. 8 3. Legal Theories 9 As in the original and first amended complaint, Plaintiff alleges various federal 10 and state law theories of relief, which Plaintiff calls “Counts.” See id. at 31-49. In doing so, 11 Plaintiff incorporates all earlier allegations. See id. at 31-32. Plaintiff’s federal law claims are as 12 follows: 3 13 Count I Violation of right to free speech, association, and petition. 14 Count II Deprivation of right to due process (against HCSD, Board Defendants, Bowles, Kampa, and Dingman). Count III Violation of procedural due process. Count IV Deprivation of rights to due process and equal protection. Count V Deprivation of right to due process (against Hornbrook Community Bible Church and Crittenden). Count VI Deprivation of right to due process – gifts of public funds to Dingman. Count VII Retaliation (against HCSD, Board Defendants, and Kampa). Count VIII Count IX Violation of § 1985 (against HCSD, Board Defendants, and Kampa). Violation of § 1985 (against HCSD, Board Defendants, Kampa, Dingman, and Bowles). 24 Count X Civil conspiracy to violate civil rights. 25 Id. at 31-42. 15 16 17 18 19 20 21 22 23 26 Plaintiff’s state law claims are as follows: 4 27 3 28 4 Plaintiff refers to all of his federal claims as the “First Claim for Relief” Plaintiff refers to all of his state law claims as the “Second Claim for Relief.” 16 1 Count I Violation of HCSD bylaws Count II Willful negligence; negligence. Count III Retaliation in employment (against Board Defendants, Kampa, and HCSD). 5 Count IV Gifts of public funds. 6 Count V Gifts of public funds (against Board Defendants); false claims and fraud (against Dingman). Count VI Gifts of public funds (against Goff and Bowles). Count VII Gifts and waste of public funds (Doe Defendants). Count VIII Violation of Article 1, section 2, of the California Constitution. Count IX Unfair business practices (against Bowles). Count X Unfair business practices (against Goff). Count XI Unfair business practices (against Kampa). Count XII Negligence. Count XIII Unfair business practices (against Hornbrook Community Bible Church). 16 Count XIX 5 Civil conspiracy. 17 Count XX Violation of California Public Records Act (against HCSD, Board Defendants, and Kampa). Count XXI Purported official acts of the Board Defendants are void. Count XXII Improperly unbilled fees and charges; gifts/waste of public funds. 2 3 4 7 8 9 10 11 12 13 14 15 18 19 20 Count XXIII Gifts of public funds (against Board Defendants, Martin, Bowles, and Soares). 21 22 Count XXIV Violation of the Bane Act (against HCSD, Board Defendants, and Kampa). 23 Count XXV State law claims; exemplary damages. 24 Id. at 42-49. 25 26 27 28 5 The second amended complaint contains no state law “counts” XIV through XVIII. 17 II. PLAINTIFF’S LITIGATION HISTORY 6 1 2 Roger Gifford, the plaintiff in this case, and Kimberly Olson are frequent litigants 3 in the Eastern District of California as well as the Siskiyou County Superior Court, which has 4 declared Olson and Gifford to be vexatious litigants primarily based on frivolous lawsuits 5 alleging mismanagement of HSCD by its directors, officers, and others. With respect to 6 Plaintiff’s allegations against HCSD and related defendants, the following actions are pending in 7 the Eastern District in addition to the instant action: 8 Olson v. Hornbrook Community Services District, et al., 2:15-CV-0646-KJM-DMC. 9 Olson v. Slote, et al., 2:16-CV-0956-KJM-EFB. 10 11 Olson v. Hornbrook Community Services District, et al., 2:19-CV-2127-KJM-DMC. 12 Gifford v. Hanson, et al., 2:21-CV-0119-TLN-DMC. 13 14 Each of these actions raises claims against HCSD, its former and/or current board 15 members, and others regarding alleged mismanagement of HCSD. For whatever reason, the 16 allegations in these actions are strikingly similar. Additionally, the format, wording, phrases 17 used, organization, and styling of claims in all of the pleadings filed by Olson and Gifford in 18 these cases are nearly identical. The instant action has been related to Gifford v. Hanson, et al. 19 See ECF No. 70 (related-case order). The related case, Gifford v. Hanson, et al., proceeds on a complaint which is 20 21 nearly identical to the original complaint in the instant action. On March 3, 2022, the 22 undersigned issued findings and recommendations in the related case recommending that the 23 original complaint be dismissed with leave to amend. See ECF No. 28 in case no. 2:21-CV-0119- 24 TLN-DMC. The matter is currently before the District Judge. 25 26 27 28 6 Error! Main Document Only.The Court may take judicial notice pursuant to Federal Rule of Evidence 201 of matters of public record. See U.S. v. 14.02 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008). Thus, this court may take judicial notice of state court records, see Kasey v. Molybdenum Corp. of America, 336 F.2d 560, 563 (9th Cir. 1964), as well as its own records, see Chandler v. U.S., 378 F.2d 906, 909 (9th Cir. 1967). The Court’s discussion in this section is based on judicially noticed state and federal court records. 18 1 Other active pending cases filed by Olson and Gifford are: 2 Gifford v. Hornbrook Fire Protection District, et al., 2:16-CV-0596-DAD-DMC. 3 Olson v. Bynum, et al., 2:20-CV-2481-TLN-KJN. 4 5 Olson v. Puckett, et al., 2:21-CV-1482-KJM-DMC. 6 Gifford v. Dingman, et al., 2:21-CV-1726-KJM-DMC. 7 8 9 The last two cases listed above – Olson v. Puckett, et al. and Gifford v. Dingman, et al. – illustrate how Olson and Gifford appear to file cases in tandem. Olson initiated her 10 lawsuit in Olson v. Puckett, et al. in August 2021 on allegations that HCSD and its officers and/or 11 directors improperly disconnected her water service. See ECF No. 1 in case no. 2:21-CV-1482- 12 KJM-DMC. Among Olson’s allegations is the contention that a vehicle was unlawfully towed 13 from her property in order to allow for access to equipment connecting Olson’s home to the 14 district’s water supply. See id. Apparently, that vehicle belonged to Gifford, who a month later 15 filed his own lawsuit, captioned Gifford v. Dingman, et al., in September 2021 on virtually 16 identical allegations as those presented in Olson v. Puckett, et al. See ECF No. 1 in case no. 2:21- 17 CV-1726-KJM-DMC. As with other Olson/Gifford actions, the complaints in Olson v. Puckett, 18 et al. and Gifford v. Dingman, et al. bear striking similarities in form, organization, phrases used, 19 and legal theories presented. 7 In addition to these active pending cases, Olson and Gifford have, collectively, 20 21 filed nine prior actions, 8 none of which resulted in a judgment in favor of either Olson or Gifford, 22 and only one of which survived past the pleading stage. Closed cases filed by Olson and Gifford 23 are: 24 25 26 27 28 7 Defendants have filed a motion to dismiss in Olson v. Puckett, et al., which has been submitted on the record without oral argument and is pending. See ECF No. 47 in case no. 2:21-CV-1482-KJM-DMC. Defendants’ response to the complaint in Gifford v. Dingman, et al. is due in September 2022. See ECF No. 34 in case no. 2:21-CV-1726-KJM-DMC. 8 In another action filed by Olson, Gifford was a named defendant, apparently because Gifford was serving at the time in some capacity with the HCSD. Gifford is also a defendant in Olson v. Hornbrook Community Services District, et al., case no. 2:15-CV-0646KJM-DMC, in which Olson seeks approval of a “settlement” with Gifford. 19 1 Olson v. Kennard, et al., 2:00-CV-0872-WBS-GGH. Dismissed for failure to comply with court order. 2 3 Olson v. Lemos, et al., 2:06-CV-1126-TLN-CMK. Voluntarily dismissed at pleading stage. 4 5 Olson v. City of Etna, et al., 2:08-CV-0882-FCD-EFB. Voluntarily dismissed shortly after scheduling order issued. 6 7 Olson v. Commissioner of Social Security, 2:11-CV-2059-MCE-CMK. Dismissed for failure to state a claim. 8 9 Gifford v. Siskiyou County Sheriff, et al., 2:11-CV-2484-KJM-CMK, Voluntarily dismissed at pleading stage. 10 11 Gifford v. Hornbrook Community Services District, et al., 2:15-CV-1274-MCE-AC. Dismissed for failure to state a claim. 12 Gifford v. Puckett, et al., 2:16-CV-0955-KJM-GGH. Dismissed for failure to state a claim. 13 14 Olson v. Rural Community Assistance Corp., et al., 2:21-CV-0700-KJM-AC. Voluntarily dismissed. 15 16 Olson v. Carter, et al., 2:21-CV-0929-JAM-CKD. Voluntarily dismissed at screening stage 17 18 19 III. SUMMARY OF DEFENDANTS’ ARGUMENTS 20 Defendants 9 argue that Plaintiff’s second amended complaint should be 21 22 dismissed in its entirety for failure to state a claim consistent with the pleading requirements of 23 Rule 8. See ECF No. 86. More specifically, Defendants contend as follows with respect to 24 Plaintiff’s federal claims: (1) Plaintiff cannot bring an action directly under the United States 25 Constitution; (2) Plaintiff cannot state a claim for violation of his First Amendment rights; (3) 26 Plaintiff cannot establish a claim for violation of procedural due process; (4) Plaintiff cannot 27 28 9 Moving defendants are: HCSD, Kampa, Puckett, Tulledo, Bowles, Dingman, Slote, Dixon, and Goff. 20 1 establish any equal protection claims; (5) Plaintiff’s claims based on alleged gifts of public 2 funds fail because Plaintiff presents no facts establishing that the disbursements of funds were 3 not rationally related to a public purpose; and (6) Plaintiff has not pleaded any facts to 4 establish a violation of his right to vote. See id. at 5-8. Defendants also argue that Plaintiff 5 cannot maintain any federal statutory claims. See id. at 8. The Court, however, does not 6 consider this argument because the District Judge has dismissed Plaintiff’s federal statutory 7 claims with prejudice. See ECF No. 82. 8 As to Plaintiff’s state law claims, Defendants argue: (1) HCSD and its 9 employees are immune under California Government Code § 820.2; (2) Plaintiff has pleaded no 10 facts suggesting Defendants were negligent; (3) Plaintiff has pleaded no facts to support a claim 11 for nuisance against HCSD, the Board Defendants, Dingman, or Goff; (4) Plaintiff’s state law 12 claims for retaliation in employment fail because Plaintiff was not an HCSD employee; and 13 (5) Plaintiff’s state law claims based on alleged gifts of public funds fail as a matter of law. See 14 ECF No. 86, pgs. 8-10. 15 IV. DISCUSSION 16 The Court finds Plaintiff’s non-compliance with Federal Rule of Civil 17 Procedure 8’s pleading standards to be dispositive of the pending motion to dismiss. 18 Rule 8’s pleading requirements are not met by a “complaint that contains 19 conclusion or surmise and requires a court to decide whether events not pleaded could be 20 imagined in a plaintiff’s favor.” Levin v. Miller, 763 F.3d 667, 671 (7th Cir. 2014). Rather, in 21 order to establish plausibility, allegations in a complaint “may not simply recite the elements of a 22 cause of action but must contain sufficient allegations of underlying facts to give fair notice and 23 to enable the opposing party to defend itself effectively.” Eclectic Props. E., LLC v. Marcus and 24 Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014 (internal quotation and citation omitted). 25 “. . .[T]he factual allegations that are taken as true must plausibly suggest an entitlement to relief, 26 such that it is not unfair to require the opposing party to be subjected to the expense of discovery 27 and continued litigation.” Id. While pleadings of pro se litigants are held to less rigid standards 28 than those drafted by attorneys, see Haines v. Kerner, 404 U.S. 519, 520-522 (1972), even pro se 21 1 pleadings “must meet some minimum threshold in providing a defendant with notice of what it is 2 that it allegedly did wrong,” Brazil v. United States Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 3 1995). 4 Although the Federal Rules adopt a flexible pleading policy, a complaint must give 5 fair notice and state the elements of the claim plainly and succinctly. See Jones v. Community 6 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree 7 of particularity overt acts which defendants engaged in that support Plaintiff's claim. See id. The 8 allegations must be short and plain, simple and direct, and describe the relief Plaintiff seeks. See 9 Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. 10 11 County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). In Olson v. Slote, et al., which proceeds on an amended complaint against HCSD 12 and others that is almost identical to the amended complaint currently before the Court in the 13 instant action, Judge Brennan observed as follows in recommending Plaintiff’s first amended 14 complaint be dismissed without further leave to amend: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As explained below, the first amended complaint suffers from the same deficiencies as plaintiff’s original complaint, and it too must be dismissed for failure to state a claim. *** Plaintiff’s first amended complaint asserts claims under 42 U.S.C. §§ 1983, 1985, 1986; 1988; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, et seq., the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.; the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; 18 U.S.C. § 1513, as well as more than 20 state law claims. ECF No. 7. The claims are brought against 16 defendants, including the Hornbook Community Services District (“HCSD”) and its directors, agents, and customers; the Hornbook Community Bible Church and its employees; Basic Labs; and the law firm of Kirsher, Winston & Boston. Id. The crux of the amended complaint is that defendants participated in grand a conspiracy to mismanage HCSD. Like her earlier complaint, plaintiff’s amended complaint fails to comply with Rule 8. Rather than providing a short and plain statement for each of plaintiff’s claims, the 58-page amended complaint consists largely of vague and conclusory allegations concerning various events that allegedly occurred from 2004 through 2017. Further muddling the matter, numerous allegations in the amended complaint that appear unrelated, or only tangentially related, to plaintiff’s dispute with the defendants’ alleged mismanagement of HCSD. See, e.g., id. ¶¶ 15, 18 (alleging HCSD directors permitted defendant Dingman and his dog to occupy a water 22 1 treatment facility for personal use and storage); ¶ 17 (alleging that defendant Puckett stored hazardous material on his property). As drafted, it is nearly impossible to discern the specific claims plaintiff intends to allege against each of the 17 named defendants, as well as the particular facts supporting each claim. Plaintiff purports to assert 17 federal causes of action, many setting forth multiple claims within the same cause of action. For instance, plaintiff’s 17th “count” is entitled “Violation of Fourth Amendment.” Id. at 42. But the allegations provided in connection with that cause of action do not implicate the Fourth Amendment. Instead, the single paragraph supporting that claim alleges defendants violated California’s Brown Act, Cal. Gov’t Code §§ 54950, et seq. and plaintiff’s right to due process by holding “non-agendized” HCSD board meetings that included segments that were not open to the public. [footnote omitted]. Id. ¶ 127. Further, each of plaintiff’s claims confusingly seek to incorporate by reference various sections of the complaint. Indeed, the amended complaint includes a section entitled “Incorporation of Factual Allegations into Counts,” under which plaintiff explains that she seeks to incorporate earlier sections of the complaint into her claims. Id. at 7. As previously explained to plaintiff, proceeding in this fashion renders it impossible for the court and defendants to ascertain the factual basis for each particular claim. *** 2 3 4 5 6 7 8 9 10 11 12 But even if the court were able to ascertain plaintiff’s claims, as well as the specific allegations purporting to support each claim, dismissal would still be warranted. Despite spanning 58 pages, the amended complaint is nearly devoid of specific factual allegation. Instead, it is replete with redundant legal statements and vague and conclusory allegations that fail to support a cognizable legal claim. See, e.g., id. ¶ 105 (alleging defendants, “in acting as set forth above in manners adverse to Plaintiff, did so willfully, with intent to interfere with, impede, coerce Plaintiff into abandoning, and in retaliation for, her excise of statutory and constitution rights to speak freely, petition the government, and courts, for redress of grievances; and her attempt to assert the right to vote . . . [,] violated Plaintiff’s First Amendment rights to assemble with the other electors . . . .”), ¶ 113 (“Defendants HCSD and Board Defendants improperly conspired with, were unduly influenced, and engaged in corrupt activity with Defendants HCBC, Crittenden, and Bowels, in order to utilize the Board Defendants authority under color of State law, for the HCBC and Crittenden to wrongfully receive gifts of public funds . . . .”). 13 14 15 16 17 18 19 20 21 ECF No. 8, pgs. 2-4, in case no. 2:16-CV-0956-KJM-EFB. 10 22 23 24 25 The undersigned includes Judge Brennan’s analysis here for two reasons. First, it demonstrates the close similarity among the various pending Olson and Gifford actions alleging mismanagement of HCSD pursuant to some kind of grand scheme. Second, Judge Brennan’s analysis applies plainly and point by point to the instant action, again because the complaints filed 26 27 28 10 Judge Brennan’s findings and recommendations were issued on September 25, 2020. Olson filed objections on October 2, 2020, and the matter is pending before the District Judge. 23 1 by Olson and Gifford are so similar, as discussed below. 2 As in Olson v. Slote, et al., Plaintiff’s complaint here, which is 53 pages long (and 3 seven pages longer than the first amended complaint), is largely written in vague and conclusory 4 legal terms, such as “aided and abetted,” which are repeated throughout and which concern wide 5 range of events occurring throughout 2017. Also mirroring Olson v. Slote, et al., the complaint 6 here contains a number of tangential and seemingly unrelated allegations. In Olson v. Slote, et 7 al., Plaintiff alleges in the instant case that Dingman was improperly permitted to live on district 8 property with his dog. See ECF No. 85, pg. 19. Gifford makes the exact same claim in Gifford v. 9 Kampa, et al., see ECF No. 85, pg. 19, in case no. 2:17-CV-2421-TLN-DMC (Gifford’s second 10 amended complaint), and Olson makes the exact same claim in Olson v. Hornbrook Community 11 Services istrict, et al., see ECF No. 1., pg. 16, case no. 2:19-CV-2127-KJM-DMC. The precise fit of Judge Brennan’s analysis in Olson v. Slote, et al. to this case is 12 13 further illustrated in the context of the number of claims raised and the way they are presented. 14 Here, Plaintiff raises 10 federal claims (some having already been dismissed), many with various 15 sub-claims, and 20 state law claims, also with sub-claims. And as in Olson v. Slote, et al., 16 Plaintiff here attempts to incorporate other sections of her pleading by reference into the various 17 federal and state law claims. The undersigned agrees with Judge Brennan’s conclusion that 18 “proceeding in this fashion renders it impossible for the court and defendants to ascertain the 19 factual basis for each particular claim.” ECF No. 8, pg. 3, in case no. 2:16-CV-0956-KJM-EFB. 20 Plaintiff’s complaint here is bereft of specific factual allegations explaining who 21 did what, when, how, and why. Nor does the complaint here link any specific facts to specific 22 defendants and the specific elements of the legal theories asserted. Even allowing a wide range of 23 latitude because Plaintiff is proceeding pro se, the Court simply cannot find that Plaintiff’s 24 complaint complies with Rule 8 such that Defendants have received fair notice sufficient to 25 answer. 26 Plaintiff’s failure to comply with Rule 8 alone justifies dismissal of her complaint. 27 See Schmidt v. Hermann, 614 F.2d 1221, 1223 (9th Cir. 1980) (upholding the dismissal of a 28 complaint where it was “impossible to designate the cause of action or causes of action attempted 24 1 to be alleged in the complaint.”); In re Sagent Tech., Inc., 278 F.Supp.2d 1079, 1094 (N.D. Cal. 2 2003) (“[T]he complaint fails to state a claim because plaintiffs do not indicate which individual 3 defendant or defendants were responsible for which alleged wrongful act.”); see also McHenry v. 4 Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (affirming Rule 8 dismissal of complaint that was 5 “argumentative, prolix, replete with redundancy, and largely irrelevant” and providing an 6 example of a properly pleaded claim, which could be “read in seconds and answered in minutes”). 7 The Court has previously advised Plaintiff of the defects in his pleading and 8 provided Plaintiff an opportunity to amend. As outlined in detail above, Plaintiff’s allegations 9 have not materially changed in such a way as would provide the defendants faire notice. In short, 10 the Rule 8 violation persists. The undersigned recommends that Plaintiff’s second amended 11 complaint be dismissed without further leave to amend. 12 13 14 V. CONCLUSION Based on the foregoing, the undersigned recommends that Defendants’ motion to 15 dismiss, ECF No. 86, be granted and that this action be dismissed in its entirety with prejudice for 16 failure to state a claim upon which relief can be granted. 17 These findings and recommendations are submitted to the United States District 18 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 19 after being served with these findings and recommendations, any party may file written objections 20 with the Court. Responses to objections shall be filed within 14 days after service of objections. 21 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 22 Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 25 26 Dated: August 30, 2022 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 27 28 25
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