Johns v. Leavitt et al, No. 2:2008cv01510 - Document 50 (D. Nev. 2009)

Court Description: ORDER Granting 9 Motion to Dismiss. Granting 28 Motion to Dismiss. Granting 19 Motion to Dismiss. Claims against John Keamy are Dismissed. Clerk to enter judgment for defendants and against Plaintiff Hans Johns. Signed by Judge Kent J. Dawson on 9/21/09. (Copies have been distributed pursuant to the NEF - AXM)
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Johns v. Leavitt et al Doc. 50 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 HANS JOHNS, 11 Plaintiff, 12 v. 13 MICHELLE LEAVITT, DARREN DAULTON, SEAN CLAGGETT, et al., Case No. 2:08-CV-01510-KJD-GWF ORDER 14 Defendants. 15 16 Presently before the Court is Defendants Sean Claggett and Darren Daulton’s Motion to 17 Dismiss (#9). Plaintiff filed a response in opposition (#15) to which Defendants replied (#17). Also 18 before the Court is Defendant Michelle Leavitt’s Motion to Dismiss (#19). Plaintiff filed a response 19 in opposition (#22). Additionally, before the Court is Defendant Barry Solomon’s Motion to 20 Dismiss (#28). Plaintiff filed a response in opposition (#29) to which Defendant replied (#32). 21 I. Background 22 According to the allegations of the complaint, Defendant Darren Daulton (“Daulton”) brought 23 a state court action against Plaintiff Hans Johns (“Johns”) in December 2006. Daulton was 24 represented in the action by Defendant Sean Claggett (“Claggett”). The state court complaint 25 asserted claims of fraud, theft, civil RICO, violation of fiduciary responsibility, and embezzlement 26 1 amongst others. The judge in the state case, Michelle Leavitt, appointed a receiver, Defendant Barry 2 Solomon, over most of Johns’ assets for violating her orders. Judge Leavitt then struck Johns’ 3 answer in the action and entered Default for Daulton. 4 Plaintiff Johns then commenced this action in federal court asserting claims against Michelle 5 Leavitt for deprivation of state and federal constitutional rights as contained in his first claim, claims 6 against Sean Claggett and John Keamy for fraud on the court, deprivation of constitutionally 7 protected rights, and acting in concert with Leavitt, and claims against Defendant Barry Solomon for 8 fraud on the court, due process violations, abuse of the legal process and unreasonable seizure, and 9 claims against all Defendants for intentional infliction of emotional distress and conspiracy. 10 Plaintiff filed the present complaint on November 3, 2008. Defendants Claggett and Daulton 11 then filed the present motion to dismiss asserting that the action is barred by the Rooker-Feldman 12 doctrine and that all federal claims must be dismissed.1 13 II. Standard for a Motion to Dismiss 14 In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as 15 true and construed in a light most favorable to the non-moving party.” Wyler Summit Partnership v. 16 Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 17 Consequently, there is a strong presumption against dismissing an action for failure to state a claim. 18 See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). 19 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 20 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 21 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the 22 context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court to 23 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 24 1 25 26 The Rooker-Feldman doctrine does not apply in this action, because the state court judgment was not final when this action was filed and this action does not seek direct review of the state court’s final order. See Exxon Mobil Corporation v. Saudi Basic Inds. Corp., 125 S.Ct. 1517, 1521-22 (2005). However, the state court proceedings do raise issues of preclusion which have not been argued by Defendants. See id. 2 1 The Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the 2 allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations 3 which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the 4 Court considers the factual allegations “to determine if they plausibly suggest an entitlement to 5 relief.” Id. at 1951. If the allegations state plausible claims for relief, such claims survive the motion 6 to dismiss. Id. at 1950. 7 III. Analysis 8 Though Plaintiff’s complaint appears to only bring claims against Daulton for conspiracy and 9 intentional infliction of emotional distress, Plaintiff’s opposition appears to argue that all civil rights 10 claims apply to Daulton as well as Claggett. Conspiracy and infliction of emotional distress are state 11 law causes of action which the Court will decline to assert supplemental jurisdiction over. A district 12 court has discretion to decline to exercise supplemental jurisdiction over a claim if all claims over 13 which it has original jurisdiction have been dismissed or if the claim raises a novel or complex issue 14 of state law. See 28 U.S.C. § 1367(c). Accordingly, those state law claims are dismissed without 15 prejudice. 16 A. Claims arising under 42 U.S.C. § 1983 17 Plaintiff alleges claims arising under 42 U.S.C. § 1983. A section 1983 individual capacity 18 claim seeks to hold a state officer liable for actions he takes under color of state law. See Kentucky 19 v. Graham, 473 U.S. 159, 165 (1985). Section 1983 is not itself a source of substantive rights, but 20 merely the procedural vehicle by which to vindicate federal rights elsewhere conferred. See Albright 21 v. Oliver, 510 U.S. 266, 273 (1994). To make a prima facie case under § 1983, a plaintiff must show 22 that the defendant: (1) acted under color of state law, and (2) deprived the plaintiff of a federal or 23 constitutional right. See Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988). 24 In this case, Plaintiff has not alleged that Defendant Daulton is a state actor. Therefore, the 25 Court must dismiss the claims arising under 42 U.S.C. § 1983, because Daulton is not acting under 26 the color of state law. Furthermore, private parties may only be liable under 42 U.S.C. § 1983 where 3 1 they wilfully participate in joint action with state officials to deprive others of their constitutional 2 rights. See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 3 1989)(en banc). “To prove a conspiracy between private parties and the government under section 4 1983, an agreement or ‘meeting of the minds’ to violate constitutional rights must be shown.” Fonda 5 v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). Plaintiff has failed to meet his burden in alleging that 6 Defendant Daulton, other than filing his complaint, came to a meeting of the minds to violate 7 Plaintiff’s constitutional rights with anyone acting under color of state law. In fact, amending the 8 complaint to allege such a claim would be futile, because it is clear that no such conspiracy exists 9 except in the mind of Plaintiff. Plaintiff’s claim is merely a conclusory assertion and does not 10 plausibly suggest an entitlement to relief. See Iqbal, 129 S.Ct. at 1949-51. 11 To the extent that Johns is claiming that Claggett acts under color of law as an officer of the 12 court, attorney’s representing clients in court are not acting “under color of law” within the meaning 13 of section 1983. See Hoai v. Vo, 935 F.2d 308 (D.C. Cir. 1991); Franklin v. Oregon, 662 F.2d 1337, 14 1345 (9th Cir. 1981); Blevins v. Ford, 572 F.2d 1336, 1339 (9th Cir. 1978). Therefore, the claims 15 arising from the assertion that Claggett is a state actor, or that others colluded with Claggett, must be 16 dismissed. 17 B. Judicial Immunity 18 To any extent that Plaintiff asserts that Michelle Leavitt is liable as a state actor or that she 19 conspired with the other Defendants, Plaintiff has pled no facts for which she may be liable, other 20 than actions taken in Leavitt’s judicial capacity for which she has complete immunity. It is well 21 established that judges have absolute immunity from civil liability for actions taken in their judicial 22 capacity. See Pierson v. Ray, 386 U.S. 547 (1967); Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 23 1986). Actions are judicial if normally performed by the judge and if the parties dealt with the judge 24 in her judicial capacity. See Ashelman, 793 F.2d at 1075. Looking at the allegations of the 25 complaint in a light most favorable to Plaintiff, the Court finds that all of the actions by Leavitt that 26 4 1 Plaintiff complains of were taken by the defendant in her judicial capacity. Therefore, the Court 2 must dismiss the complaint against her, because she is absolutely immune to suit. 3 C. Claims arising under 42 U.S.C. § 1985 4 Plaintiffs cannot bring a cause of action under § 1985 as described in his complaint. It 5 appears from his pleadings, that Plaintiff intends to assert a cause of action under 42 U.S.C. § 6 1985(3). The Ku Klux Klan Act, codified as 42 U.S.C. § 1985 allows suits against persons who 7 conspire to (1) prevent an officer of the United States from discharging his duties or remaining in the 8 state where his duties are to be performed; (2) obstruct justice in a court of the United States; or (3) 9 deprive a class of persons of the equal protection of the equal protection of the laws by force or 10 11 intimidation. Plaintiff cannot assert a claim under § 1985(3). To bring an action under this section Plaintiff 12 must demonstrate (1) a deprivation of a right; (2) motivated by “ some racial or perhaps otherwise 13 class-based invidiously discriminatory animus behind the conspirators’ action.” See RK Ventures, 14 Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir. 2002) (quoting Sever v. Alaska Pulp Corp., 978 15 F.2d 1529, 1536 (9th Cir. 1992)). Plaintiff could satisfy the standing requirement if he was African- 16 American or a member of a class the federal government has determined “require and warrant special 17 federal assistance in protecting their civil rights.” Sever, 978 F.2d at 1536. Plaintiff has not alleged 18 that he is African-American. Nor has Plaintiff sufficiently alleged that he is a member of a protected 19 class. Therefore, this claim is dismissed as to all Defendants. 20 D. Claims arising under 42 U.S.C. § 1986 and 1988 21 Section 1986 creates a cause of action for failing to act to prevent a conspiracy mentioned in 22 section 1985. Since the Court has dismissed the claims based on section 1985, it also dismisses any 23 claims based on section 1986. Section 1988 allows an award of attorneys fees to a prevailing party in 24 a civil rights action and is not a separate cause of action upon which Plaintiff may prevail. 25 Accordingly, the Court dismisses any claims arising under this section. 26 5 1 E. Second and Third Causes of Action: Deprivation of Rights – Fraud on the Court 2 Plaintiff cites In re Intermagnetics America, Inc., 926 F.2d 912 (9th Cir. 1991) for the 3 proposition that he can bring a separate action for “fraud on the court.” However, the Intermagnetics 4 court merely agreed that a motion to set aside a judgment should be brought under Federal Rule of 5 Civil Procedure 60(b) in the court that issued the judgment that is alleged to have been fraudulently 6 obtained. See id. at 916-17(citing Hazel-Atlas Glass Co. v. Hartford Empire. Co., 322 U.S. 238 7 (1944) (district courts may consider Rule 60(b) motions without leave of appellate courts for cases 8 already reviewed on appeal)). Accordingly, no separate action exists for “fraud on the court”, other 9 than Plaintiff filing a motion to set aside the judgment for fraud in the state court. If every loser in a 10 state court action were allowed to bring a separate court action for fraud in the federal court, no state 11 court litigation would ever be resolved. Therefore, these claims are dismissed as to all parties. 12 F. Claims against Barry Solomon 13 While Plaintiff correctly asserts that a court-appointed receiver acts under color of state law, 14 the receiver as a judicial officer shares quasi-judicial immunity with the judge. See Lebbos v. Judges 15 of Sup. Ct., 883 F.2d 810, 818 n.10 (9th Cir. 1989); Stump v. Sparkman, 435 U.S. 349, 355-56 16 (1978); T&W Inv. Co. v. Kurtz, 588 F.2d 801 (10th Cir. 1978)(to deny the receiver this immunity 17 “would make [him] a lightning rod for harassing litigation aimed at judicial orders”). Accordingly, 18 the claims against Solomon must be dismissed because he is immune from the allegations of this 19 complaint, because Johns “had an opportunity to and did object throughout the state court 20 proceedings” to the actions of the receiver. See id. at 803. Actions taken when Solomon was no 21 longer the receiver were not taken under “color of state law” and therefore are, at best, claims arising 22 under state law which the Court declines to exercise supplemental jurisdiction over. 23 G. Claims against John Keamy 24 The Court has quashed service on Defendant Keamy. Other than “acting in concert” with 25 state actors, Plaintiff has made no surviving allegations that Keamy was acting under color of state 26 law. Accordingly, the claims against Keamy are dismissed. Even if the Court were not to dismiss 6 1 the claims against Keamy, the Court would dismiss the complaint against Keamy for failure to serve 2 him with the summons and complaint in accordance with Rule 4(m). 3 H. Any remaining state law claims 4 A district court has discretion to decline to exercise supplemental jurisdiction over a claim if 5 all claims over which it has original jurisdiction have been dismissed or if the claim raises a novel or 6 complex issue of state law. See 28 U.S.C. § 1367(c). Since the Court has dismissed all claims over 7 which it has original jurisdiction, the Court declines to exercise its supplemental jurisdiction over 8 Plaintiff’s state law claims if any. 9 IV. Conclusion 10 11 12 13 14 15 Accordingly, IT IS HEREBY ORDERED that Defendants Sean Claggett and Darren Daulton’s Motion to Dismiss (#9) is GRANTED; IT IS FURTHER ORDERED that Defendant Michelle Leavitt’s Motion to Dismiss (#19) is GRANTED; IT IS FURTHER ORDERED that Defendant Barry Solomon’s Motion to Dismiss (#28) is GRANTED; 16 IT IS FURTHER ORDERED that claims against Defendant John Keamy are DISMISSED; 17 IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants 18 19 and against Plaintiff. DATED this 21ST day of September 2009. 20 21 22 23 _____________________________ Kent J. Dawson United States District Judge 24 25 26 7