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Bashkin v. Hickman

January 16, 2008

PAUL BASHKIN, PLAINTIFF,
v.
MICHAEL J. HICKMAN, AN INDIVIDUAL; MUSICK, PEELER & GARRETT, LLP, A LIMITED LIABILITY PARTNERSHIP; WHITE & OLIVER, A PROFESSIONAL CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER AMENDING SCREENING ORDER; AND ORDER SCREENING AMENDED COMPLAINT AND DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF PROCESS; AND ORDER DENYING REQUEST TO FILE MOTION FOR RECONSIDERATION

Plaintiff filed his complaint along with a motion for leave to proceed in forma pauperis ("IFP"). On December 6, 2007, the Court issued an order granting Plaintiff's motion to proceed IFP and, pursuant to 28 U.S.C. § 1915(e)(2), screening Plaintiff's complaint (the "Screening Order").

The Court noted the State of California, the judges sued for acts in their judicial capacity, and the Doe Defendants identified as the court staff attorneys were immune from suit, and the only non-immune Defendants were two law firms and an attorney. The Court dismissed all Plaintiff's § 1983 claims without leave to amend because all Government Defendants were immune. The Court further noted the applicability of the Rooker-Feldman doctrine. The Court also held Plaintiff's § 1985 claims for alleged conspiracy to obstruct justice failed to meet the heightened pleading standard for conspiracy and dismissed these claims without prejudice and with leave to amend. The Court ordered Plaintiff to file his amended complaint no later than 21 days from the date its order was entered, or December 27, 2007.

On December 27, 2007, Plaintiff filed his amended complaint. On January 4, 2008, he filed a motion for leave to file a motion for reconsideration. (the "Reconsideration Motion"). The motion he seeks leave to file requests reconsideration of the Court's Screening Order.

I. Amendment of Previous Screening Order

The Court now amends and clarifies its previous order. To the extent Plaintiff alleges the Non-Government Defendants conspired with judges to pervert the course of justice, he has alleged the non-government Defendants were acting under color of state law. Dennis v. Sparks, 449 U.S. 24, 28--29 (1980) (holding that private parties alleged to have corruptly conspired with a judge acted under color of state law, even though the judge himself was immune from suit). Therefore, the Court's previous order dismissing Plaintiff's § 1983 claims without leave to amend is hereby amended to dismiss with leave to amend those § 1983 claims against the Non-Government Defendants for conspiracy with judges and judicial employees. The dismissal of all other § 1983 claims remains unaltered.

II. Screening of Amended Complaint

On December 27, 2007, Plaintiff filed his amended complaint. He now names as Defendants only the attorney, Hickman, and the two law firms, Musick, Peeler & Garrett, LLP ("MPG") and White & Oliver, PC ("W&O"). He has limited his claims to a claim under 42 U.S.C. § 1985 for conspiracy to interfere with his civil rights, a claim for fraud, and a claim for intentional infliction of emotional distress. As discussed, the Court will also consider whether Plaintiff can bring § 1983 claims against Defendants Hickman, MPG, and W&O on the same facts as his § 1985 claims.

A. Legal Standards

Because Plaintiff is proceeding IFP, the Court is required to dismiss his complaint to the extent it fails to state a claim. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("[S]section 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.")

The Court applies the same standard as for motions to dismiss under Fed. R. Civ. P. 12(b)(6). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The Court therefore accepts as true all allegations of material fact and construes those facts in the light most favorable to Plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). "However, the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

B. Discussion

Plaintiff must overcome two major hurdles. First, Plaintiff is essentially complaining that he was deprived of justice in California state court. The Rooker-Feldman doctrine, then may bar his claims. Second, Plaintiff's § 1983 and § 1985 claims are based on allegations that Defendants Hickman, MPG, and W&O conspired with a large number of California state appellate justices to interfere with his due process rights in the litigation of certain cases in California state courts. (See Am. Complaint at 3:9--15 (naming 23 justices as co-conspirators).) In the Ninth Circuit, conspiracy claims are subject to a heightened pleading standard. Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997); Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (holding that vague and conclusory allegations are not sufficient to support a claim for civil rights violations based on conspiracy).

The parties are not diverse, so the Court can only exercise supplemental jurisdiction over the state law claims for fraud and intentional infliction of emotional distress. If the § 1985 claim is dismissed and Plaintiff has not pleaded facts on which a § 1983 claim could be based, the Court cannot exercise supplemental jurisdiction over these ...


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