Hoff v. United States of America, No. 2:2012cv00235 - Document 6 (D. Nev. 2012)
Court Description: ORDER Granting 4 Motion/Application for Leave to Proceed in forma pauperis. This Order granting leave to proceed in forma pauperis shall not extend to the issuance of subpoenas at government expense. The Clerk of the Court shall file the Complaint. Plaintiff's Complaint is Dismissed. Plaintiff shall have until 1/17/2013 to file an Amended Complaint. Signed by Magistrate Judge Peggy A. Leen on 12/17/2012. (Copies have been distributed pursuant to the NEF - SLD)
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Hoff v. United States of America Doc. 6 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 KEITH HOFF, ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) Case No. 2:12-cv-00235-MMD-PAL ORDER (IFP App - Dkt. #4) 12 This matter is before the court on Plaintiff Keith Hoff’s Application to Proceed In Forma 13 14 Pauperis (Dkt. #4). Plaintiff is proceeding in this action pro se. Previously, Plaintiff submitted 15 Initiating Documents (Dkt. #1), but failed to pay the $350.00 filing fee or submit an application to 16 proceed in forma pauperis. The court entered an Order (Dkt. #3) directing Plaintiff to pay the filing fee 17 or file an application. Plaintiff complied by filing the Application. This proceeding was referred to this 18 court by Local Rule IB 1-9. 19 I. In Forma Pauperis Application Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees 20 21 and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be 22 granted pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff’s complaint. 23 II. 24 Screening the Complaint Upon granting a request to proceed in forma pauperis, a court must additionally screen a 25 complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the action is 26 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a 28 court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the complaint Dockets.Justia.com 1 with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the 2 deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 3 1995). 4 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for 5 failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a 6 ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 7 2000). A properly pled complaint must provide a short and plain statement of the claim showing that 8 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 9 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more than labels 10 and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 11 S.Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as 12 true all well-pled factual allegations contained in the complaint, but the same requirement does not 13 apply to legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, 14 supported only by conclusory allegations, do not suffice. Id. at 1949. Secondly, where the claims in the 15 complaint have not crossed the line from plausible to conceivable, the complaint should be dismissed. 16 Twombly, 550 U.S. at 570. 17 The complaint was filed on the court’s form civil rights complaint pursuant to 42 U.S.C. § 1983. 18 To state a claim under section 1983, a plaintiff must allege that a right secured by the Constitution has 19 been violated, and the deprivation was committed by a person acting under color of state law. See West 20 v. Atkins, 487 U.S. 42 (1988) (citation omitted). States and state officers sued in their official capacity 21 are not “persons” for the purposes of a section 1983 action, and generally, they may not be sued under 22 the statute. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). Section 1983 does allow suits 23 against state officers in their individual capacities. Hafer v. Melo, 502 U.S. 21, 26 (1991). 24 Plaintiff’s complaint is difficult to follow, but it appears to allege that the named Defendants 25 violated Plaintiff’s rights under the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth 26 Amendments of the United States Constitution. See Complaint at 4. Here, Plaintiff’s complaint names 27 the following Defendants: E. Tabaldi, a special agent with the Federal Bureau of Investigation; Patrick 28 Marshall, a former California attorney who was disbarred in 2011; several unnamed state and federal 2 1 judges; Fidelity National Title, and Fernando Jiminez, a California accountant. The caption also names 2 the United States of America, but the body of the complaint contains no allegations against this 3 Defendant. Plaintiff contends that Defendants violated his constitutional rights over a period of twenty 4 years, causing Plaintiff to spend six months in jail. Additionally, Defendants took all of Plaintiff’s 5 “money, collateral, entitlements and gave them to frauds.” Id. Plaintiff alleges that Defendant Marshall 6 used Plaintiff’s money to subpoena records “which would of [sic] either got [him] paid over 2 million 7 dollars or [his] real property back.” Id. He notes that Marshall was disbarred by the State Bar of 8 California, and alleges Marshall used Plaintiff’s retainer fee to build a custom home in La Quinta, 9 California. Id. at 5. Plaintiff asserts Defendant Jiminez lied to a jury, stating Jiminez legally took 10 Plaintiff’s interest in notes and property when, in truth, Defendant Jiminez embezzled cash and 11 property. Plaintiff alleges Defendant Tabaldi was “unintentionally” deceived by “these professional 12 crooks,” had Plaintiff wrongfully arrested, and later threatened Plaintiff. Id. at 4. Defendant Tabaldi 13 made “untrue allegations” against Plaintiff that he was a “crook, thief, and uncivil person.” Id. at 6. 14 Plaintiff alleges that the state and federal court judges named as Defendants were deceived by 15 “numerous lawyers who knew they were causing the judges to maliciously prosecute [Plaintiff] while 16 they were being paid hundreds of thousands of dollars.” Id. at 4. He objects to a decision by an 17 unnamed bankruptcy judge that “allowed the group of crooks to go unpunished for depriving [Plaintiff] 18 of any money rightfully belonging to [him].” Id. Plaintiff also asserts that Fidelity National Title “put 19 title insurance policy belonging to [Plaintiff] in a corporation [owned] by frauds and professional equity 20 skimmer.” Id. at 2. Plaintiff seeks “tens of millions” of dollars in punitive damages. Id. at 9. 21 As an initial matter, Plaintiff has not pled sufficient facts to support his claims against the 22 Defendants. A complaint must allege facts “to state a claim that is plausible on its face.” Twombly, 23 550 U.S. at 570. It is unclear whether Plaintiff’s claims against the Defendants are related or involve 24 separate incidents. Throughout the complaint, Plaintiff refers to a criminal case in which he was 25 arrested, a bankruptcy case, and a civil lawsuit filed against Plaintiff in California, but Plaintiff has not 26 provided any factual detail at all about any of these cases or how they relate to his claims in this case. 27 Furthermore, the complaint does not allege when any of the Defendants’ conduct occurred. Plaintiff 28 contends his constitutional rights have been violated over a period of twenty years, but Plaintiff has not 3 1 alleged when, during this twenty year period of time, Defendants allegedly violated Plaintiff’s 2 constitutional rights. Plaintiff has failed to plead sufficient facts to support a claim on which relief can 3 be granted, and therefore, it will be dismissed with leave to amend. 4 In addition, however, Plaintiff has not stated a section 1983 claim against the named Defendants 5 because he has alleged no facts to indicate that any of the Defendants are state actors. The purpose of 6 § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their 7 federally guaranteed rights.” McDade v. West, 223 F.3d 1135, 1139 (emphasis added) (citing Wyatt v. 8 Cole, 504 U.S. 158, 161 (1992)). The “under color of state law” requirement is an essential element of 9 a § 1983 action, and it is Plaintiff’s burden to establish they were acting under color of state law when 10 they deprived him of federal rights. See Lee v. Katz, 276 F.3d 550, 553-54 (9th Cir. 2002). A 11 defendant acts under color of state law where he has exercised power possessed by virtue of state law 12 and made possible only because the wrongdoer is clothed with the authority of state law.” See West, 13 487 U.S. at 49. 14 A. 15 With respect to Marshall, a lawyer; Jiminez, an accountant; and Fidelity National Title, a title Defendants Marshall, Jiminez, and Fidelity National Title. 16 company, Plaintiff has not stated a claim under section 1983. As a general matter, the “under-color-of- 17 state-law element of § 1983 excludes from its reach merely private conduct, no matter how 18 discriminatory or wrongful.” Marsh v. Cty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (citing 19 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)); see also Simmons v. Sacramento 20 County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (explaining that lawyer in private practice 21 does not act under color of state law). Plaintiff has not alleged that any of these Defendants are state 22 actors or that they were acting under color of state law. Based upon Plaintiff’s allegations, these 23 Defendants appear to be private parties, and Plaintiff has not stated a claim under section 1983 against 24 Marshall, Jiminez, or Fidelity National Title. Accordingly, Plaintiff’s claims against these Defendants 25 will be dismissed. 26 B. 27 Plaintiff also attempts to assert claims against “Judges, both State and Federal.” Complaint at 2. 28 The Judicial Defendants. However, he has not specifically named any particular person as a Defendant and refers to “several 4 1 judges,” asserting they were “deceived by numerous lawyers who knew they were causing the judges to 2 maliciously prosecute me while they were being paid hundreds of thousands of dollars.” Complaint at 3 4. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, grouping multiple defendants together in 4 a broad allegation is insufficient to provide the defendants with fair notice of the claims against them 5 and the grounds for relief. See In re Sagent Technology, Inc., 278 F. Supp. 2d 1079, 1094-95 (N.D. 6 Cal. 2003) (citing Conley v. Gibson 355 U.S. 41, 47-78 (1957), abrogated on other grounds by 7 Twombly, 127 S.Ct. 1955 (granting motion to dismiss because complaint did not allege which 8 defendant was responsible for which alleged wrong)). In order to state a claim under § 1983, a plaintiff 9 must: (a) identify each individual he believes caused him harm; and (b) as to each individual, 10 specifically identify the constitutional right violated and the specific facts demonstrating that 11 individual’s conduct. Here, Plaintiff has not identified any particular state or federal judge or alleged 12 specific facts against them. His claim that these unspecified judges “unintentionally ruled against” 13 Plaintiff is insufficient to put any specific person on notice of any specific claim, and does not state a 14 claim on which relief may be granted. 15 Additionally, even if Plaintiff’s allegations complied with Rule 8's pleading requirements, his 16 claims against the judges involve actions taken by them in their official judicial capacity. As a result, 17 the judges are absolutely immune from suit. The United States Supreme Court has repeatedly held that 18 judges and those performing quasi-judicial functions are absolutely immune from damages for acts 19 performed within their judicial capacities. See Nixon v. Fitzgerald, 457 U.S. 731, 766 (1982); see also 20 Miller v. Davis, 521 F.3d 1142m 1145 (9th Cir. 2008); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th 21 Cir. 1986) (en banc) (stating “[j]udges . . . are absolutely immune from damage liability for acts 22 performed in their official capacities”). Plaintiff’s allegations concerning actions undertaken in the 23 judges’ official judicial capacities fail to state a claim upon which relief can be granted for this reason 24 as well. 25 C. 26 Plaintiff may be attempting to state a constitutional claim against Defendant Tabaldi under the Defendant Tabaldi. 27 United States Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Fed’l Bureau of 28 Narcotics, 403 U.S. 388 (1971), because Tabaldi is an agent of the Federal Bureau of Investigation, a 5 1 federal agency. In Bivens, the Supreme Court recognized an implied right of action for damages against 2 federal officers alleged to have violated a person’s constitutional rights. See Correctional Svs. Corp. v. 3 Malesko, 534 U.S. 61, 66 (2001). Bivens actions against federal employees are the “judicially[-]crafted 4 counterpart” to claims against state actors arising under 42 U.S.C. § 1983. See Chavez v. I.N.S., 17 F. 5 Supp. 2d 1141, 1143 (S.D. Cal. 1998) (citing Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 6 1986), cert. denied, 479 U.S. 1054 (1987)). A Bivens claim differs from a §1983 claim only because a 7 federal, rather than a state, defendant is sued. Id. (citing Kreines v. United States, 959 F.2d 834, 837 8 (9th Cir. 1992)). 9 Plaintiff alleges Agent Tabaldi lied to a grand jury when he testified that Plaintiff traded a 10 $1,600 note for a Corvette. The complaint also alleges Tabaldi threatened Plaintiff, telling Plaintiff that 11 if he tried to recover money owed to him, Tabaldi “had concealed boxes of evidence to re-arrest” 12 Plaintiff. Complaint 2. Plaintiff also alleges that Tabaldi “unintentionally was deceived” by 13 Defendants Marshall and Jiminez, which caused Tabaldi to wrongfully arrest Plaintiff. Complaint at 4. 14 Two years after Plaintiff’s arrest, Tabaldi allegedly threatened Plaintiff saying “you shut up and give up, 15 or I’ll get you.” Id. 16 Although difficult to tell, it appears Plaintiff is attempting to state a claim for wrongful arrest 17 against Defendant Tabaldi. The Fourth Amendment protects “[t]he right of people to be secure in their 18 persons, houses, papers, and effects, against unreasonable search and seizure.” U.S. Const. amend. IV. 19 An arrest made without a warrant requires a showing of probable cause. Gilker v. Baker, 576 F.2d 245, 20 246 (9th Cir. 2001). An arrest made without probable cause or other justification provides the basis for 21 a claim of unlawful arrest under § 1983 as a violation of the Fourth Amendment. Dubner v. City of San 22 Francisco, 266 F.3d 959 (9th Cir. 2001). A warrantless arrest is reasonable where the officer has 23 probable cause to believe a crime has been or is being committed. Devenpeck v. Alford, 543 U.S. 146, 24 152 (2004). “If an officer has probable cause to believe that an individual has committed even a very 25 minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the 26 offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). However, Plaintiff has not alleged 27 facts to support his Fourth Amendment claim or any other claim against Tabaldi. He has also failed to 28 allege the time frame during which Tabaldi’s alleged conduct occurred. Therefore, Plaintiff has failed 6 1 to state a Bivens claim, and his claims against Defendant Tabaldi will be dismissed with leave to 2 amend. 3 Based on the foregoing, 4 IT IS ORDERED that: 5 1. be required to pay the filing fee of three hundred fifty dollars ($350.00). 6 7 Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 8 prepayment of any additional fees or costs or the giving of a security therefor. This 9 Order granting leave to proceed in forma pauperis shall not extend to the issuance of subpoenas at government expense. 10 11 3. The Clerk of the Court shall file the complaint. 12 4. Plaintiff’s complaint is DISMISSED with leave to amend. 13 5. Plaintiff shall have until January 17, 2013, to file an amended complaint, if he believes 14 he can correct the noted deficiencies. The amended complaint must be a complete 15 document in and of itself, and will supersede the original complaint in its entirety. Any 16 allegations, parties, or requests for relief from prior papers that are not carried forward in 17 the amended complaint will no longer be before the court. 18 6. Plaintiff shall clearly title the amended complaint as such by placing the words “FIRST 19 AMENDED COMPLAINT” on page 1 in the caption, and Plaintiff shall place the case 20 number, 2:12-cv-00235-MMD-PAL, above the words “FIRST AMENDED”in the space 21 for “Case No.” 22 23 24 7. Plaintiff is expressly cautioned that if he does not timely file an amended complaint in compliance with this order, this case may be immediately dismissed. Dated this 17th day of December, 2012. 25 26 27 _________________________________________ PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 28 7
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