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Ambler v. Parks

March 3, 2009



In these findings and recommendations, the undersigned addresses four unopposed motions to dismiss plaintiff's complaint as well as a motion for preliminary injunctive relief referred to the undersigned for preparation of findings and recommendations after the then-assigned district judge determined that plaintiff failed to set forth any immediate injury that would warrant a temporary restraining order.*fn1

Upon consideration of all written materials filed in connection with plaintiff's and defendants' motions, as well as the entire file, the undersigned recommends that plaintiff's motion for preliminary injunctive relief be denied, that defendants' motions to dismiss be granted, and that the entire action be dismissed as to all claims.


This matter came before the court on June 27, 2008 for hearing of three motions to dismiss brought by defendants. Plaintiff appeared in propria persona. Daniel B. Alweiss, Esq. appeared as counsel for defendants Mize, Candee, Brown, Krabbenhoft, and Krause. Laura Jean Marabito, Esq. appeared as counsel for defendants Parks, Simpson, County of Sacramento, County of Sacramento Planning & Community Development Code Enforcement Division, O'Brien, Marsh, Acero, Scully, Dickinson, and McGinness. The court addressed plaintiff's failure to file opposition to defendants' motions and granted plaintiff's oral request for an extension of time to file opposition. Hearing of the three motions was continued to August 15, 2008. Subsequently, a motion to dismiss filed by defendants Hollows, Scott, Montoya, and Hall was also noticed for hearing on August 15, 2008.

Despite having been granted an extension of time to do so, plaintiff did not file opposition or a statement of non-opposition to any of the defendants' motions. Nor did he seek an extension of time to do so.*fn2 By order filed August 6, 2008, the undersigned vacated the hearing set for August 15, 2008 and deemed defendants' unopposed motions submitted pursuant to Local Rule 78-230(c) and (h).


Pursuant to Local Rule 83-183(a), "[a]ny individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure and by these Local Rules"*fn3 and "[f]ailure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules." Failure of counsel or any party to comply with the Federal Rules, the Local Rules, or any order of the court may be grounds for imposition of any and all sanctions authorized by statute or rule or within the inherent power of the court. Local Rule 11-110.

Local Rule 78-230 governs civil motion calendars and procedure. If a case has been referred to the magistrate judge pursuant to Local Rule 72-302(c)(21), all motions must be noticed, briefed, and argued before the Magistrate Judge. Local Rule 78-230(l). Opposition to the granting of a motion must be filed not less than fourteen calendar days preceding the noticed hearing date. Local Rule 78-230(c). A party who fails to file timely opposition to a motion is not entitled to be heard in opposition to the motion at oral argument. Local Rule 78-230(c). Failure to appear at the hearing of a properly noticed motion may be deemed a withdrawal of opposition to the motion or may result in the imposition of sanctions. Local Rule 78-230(j).

Plaintiff violated Local Rule 78-230 initially by failing to file opposition to the three motions noticed for hearing on June 27, 2008. He violated the same rule a second time, after having obtained an extension of time to file opposition, by failing to file opposition to any of the motions noticed or set for hearing on August 15, 2008. Because of plaintiff's repeated failure to oppose defendants' motions, the court could deem his lack of opposition and his waiver of oral argument to be a withdrawal of any opposition he may have had. In the interests of justice, however, the undersigned addresses defendants' motions on their merits.


I. Legal Standards Applicable to Motions to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(6) Defendants' motions have been brought pursuant to Federal Rule of Civil Procedure 12(b)(6). Such a motion tests the legal sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). See also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, U.S. , , 127 S.Ct. 1955, 1974 (2007).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and liberally construes those allegations, as well as the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Love v. U.S., 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court may disregard allegations in the complaint that are contradicted by facts established by exhibits attached to the complaint. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider matters of public record, including pleadings and other papers filed with the court. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

II. Judicial Notice of Public Records

In support of their motions to dismiss, some of the defendants have requested that the court take judicial notice of public records. On a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). A court may take judicial notice of its own files and of documents filed in other courts. Reyn's Pasta Bella, LLC v. Visa USA, Inc.,442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of documents related to a settlement in another case that bore on whether the plaintiff was still able to assert its claims in the pending case); Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (taking judicial notice of court filings in a state court case where the same plaintiff asserted similar and related claims); Hott v. City of San Jose, 92 F. Supp. 2d 996, 998 (N.D. Cal. 2000) (taking judicial notice of relevant memoranda and orders filed in state court cases). Cf. In re Zoran Corp. Derivative Litigation, 511 F. Supp. 2d 986, 1001 (N.D. Cal. 2007) (declining to take judicial notice of a fact document filed in a wholly unrelated action that involved the same legal principles but involved different parties making different allegations and asserting different claims, theories, and arguments).

Defendant Acero requests that the court take judicial notice of three documents:

(1) a complaint filed on December 27, 2007, by Sharon Martin in Martin v. Parks, et al., case No.2:07-cv-2796 LKK EFB PS (E.D. Cal. 2007); (2) a complaint filed on January 4, 2008, by Jackie Mellow and Sharon Martin in Mellow, et al. v. Sacramento County, et al., case No. 2:08-cv-0027 LKK EFB PS (E.D. Cal. 2008); and (3) a motion to dismiss filed February 1, 2008 by defendant Acero on behalf of the County defendants in the Martin case.

Defendants Hollows, Scott, Montoya, and Hall also request that the court take judicial notice of the Martin and Mellow complaints. In addition, these defendants request that the court take judicial notice of the following adjudicative facts: (1) Gregory G. Hollows is and was at all relevant times a magistrate judge for the United States District Court for the Eastern District of California; (2) McGregor W. Scott was at all relevant times the United States Attorney for the Eastern District of California; (3) Benjamin E. Hall is and was at all relevant times an Assistant U.S. Attorney in the Eastern District of California and represents Gregory G. Hollows in the Martin case; and (4) Bobbie J. Montoya is and was at all relevant times an Assistant U.S. Attorney in the Eastern District of California and represents McGregor W. Scott in the Martin case.

Plaintiff has not opposed defendants' requests for judicial notice. In light of the arguments made by defendants in their motions to dismiss, and in light of the allegations of plaintiff's complaint, the undersigned finds it appropriate to take judicial notice of the two complaints and the motion to dismiss because they are documents in this court's own files. In addition, the undersigned finds that the four adjudicative facts asserted by defendants Hollows, Scott, Hall, and Montoya are not subject to reasonable dispute in that the facts are generally known within the territorial jurisdiction of this court and are also capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. The defendants' requests for judicial notice are therefore granted.

III. Analysis

The caption of plaintiff's voluminous complaint identifies the pleading as a "Civil RICO Complaint." In the opening paragraph, plaintiff alleges that he seeks civil remedies and injunctive relief pursuant to 18 U.S.C. §§ 1964(a)-(c) "for injury to person and property by a Racketeering Influenced and Corrupt Organization committing an [sic] pattern of predicate acts of 'collection of unlawful debt' in violation of §§ 1341 and 1962(d) of Title 18 U.S.C."

Although the complaint is typed and contains allegations in numbered paragraphs, the pleading is virtually incomprehensible because plaintiff has interpolated numerous exhibits, some of which are lengthy. Exhibits include entire copies of published court decisions as well as copies of documents filed in other cases and administrative materials that have exhibits of their own or contain numbered paragraphs of their own. For example, page 13 of the complaint contains numbered paragraphs 16 through 20. It is followed by 22 pages of exhibits, and plaintiff's paragraph 21 does not appear until page 36. Numbered paragraph 25 is the final paragraph on page 37, which is followed by 31 pages of exhibits, so that numbered paragraph 26 does not appear until page 69. Plaintiff's use of headings is erratic at best, and the headings do little to assist the reader. The complaint totals 143 pages, but plaintiff's seven causes of action and prayer for relief do not appear until pages 137 through 141. Many of plaintiff's allegations are vague and conclusory, and some of the details that are alleged have no apparent relevance to plaintiff's claims.

Although plaintiff's prayer for relief is headed "Plaintiffs [sic] Claims for Damages and Injunctive Relief," the prayer identifies only various forms of monetary relief, with no mention of any injunctive relief against any defendant.

A. The State Defendants

Defendants James Mize and Roland Candee are state superior court judges, defendant Edmund Brown is the state attorney general, and defendants William Krabbenhoft and Peter Krause are deputy attorneys general. The court will refer to these defendants collectively as the State defendants.

The State defendants seek dismissal of the claims against them on the ground that the complaint fails to state a claim upon which relief can be granted because (1) plaintiff's claims are barred by the Younger abstention doctrine, (2) the state court judges and deputy attorneys general are immune, and (3) plaintiff's RICO claim is insufficient.

1. Younger Abstention

While federal courts have an obligation to exercise jurisdiction where it exists, particularly in civil rights cases, abstention may be required under Younger v. Harris, 401 U.S. 37 (1971), when there are ongoing state proceedings that implicate important state interests and there is adequate opportunity in the state proceedings to raise federal questions. Confederated Salish v. Simonich, 29 F.3d 1398, 1405 (9th Cir. 1994); Miofsky v. Superior Court of the State of California, 703 F.3d 332, 337-38 (9th Cir. 1983). The abstention doctrine extends to state administrative proceedings. Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627 (1986). "When a case falls within the proscription of Younger, a district court must dismiss the federal action." Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1356 (9th Cir. 1986). In addition, there is no discretion to grant injunctive relief if the case is within the Younger category of cases. Id. (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 816 n. 22 (1976)).

The State defendants assert that Younger abstention applies because there is already an ongoing state administrative proceeding in which plaintiff attended a hearing regarding the various citations he had received, as evidenced in plaintiff's own complaint at ¶ 34 and pages 85-92. Defendants contend that important state interests are implicated in that plaintiff's property has been found to be a public nuisance which has been ordered to be abated due to the number of abandoned vehicles and rubbish on his property. Defendants argue that the state proceedings provide adequate opportunity for plaintiff to raise his federal claims because plaintiff can appeal the administrative hearing decision and order to the superior court and seek judicial review.

Nothing in plaintiff's pleading contradicts the State defendants' argument in favor of Younger abstention, and plaintiff has not opposed their motion in any way. Finding defendants' argument persuasive, the undersigned recommends that this court abstain from addressing plaintiff's claims against the State defendants.

2. Immunity

Judges acting within the course and scope of their judicial duties are absolutely immune from liability for damages. Pierson v. Ray, 386 U.S. 547, 553-54 (1967). "[T]he factors determining whether an act by a judge is a 'judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362 (1978). Judicial immunity "applies 'however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.'" Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985) (quoting Bradley v. Fisher, 13 Wall. 335, 347 (1872)). A party dissatisfied with a judge's rulings may challenge those rulings "only via appeal, not by suing the judges." In re Thomas, 508 F.3d 1225, 1227 (9th Cir. 2007) (per curiam) (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)).

A quasi-judicial immunity "is extended in appropriate circumstances to non jurists 'who perform functions closely associated with the judicial process.'" In re Castillo, 297 F.3d 940, 948 (9th Cir. 2002) (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)). Quasi-judicial immunity is available to individuals who perform functions that are judicial in nature or "have a sufficiently close nexus to the adjudicative process." Id. at 948. The Supreme Court has found that such immunity is available to prosecutors when they are initiating a prosecution and presenting the state's case, and when they are taking action and making decisions in preparation for the initiation of a prosecution or for trial. Id. Quasi-judicial immunity applies to administrative law judges and agency hearing officers when they are performing adjudicative functions within a federal agency, to agency officials performing functions analogous to those of a prosecutor, to agency attorneys when arranging for the presentation of evidence in the course of an administrative adjudication, and to individuals who participate in the judicial process when they are acting within the scope of their duties. Id.

The State defendants assert that plaintiff's allegations against defendants Candee and Mize are related to the issuance of warrants, apparently for the inspection of plaintiff's property regarding violations of various ordinances, as well as to their role in the related matter involving Sharon Martin. Defendants contend that the issuance of inspection warrants falls squarely within the exercise of judicial authority provided for in California Code of Civil Procedure § 1822.50 and that plaintiff has not pled any facts regarding the conduct of defendants Candee and Mize that would support a conclusion that judicial immunity should not apply.

The State defendants also argue that defendants Krabbenhoft and Krause have absolute quasi-judicial immunity from suit because the allegations against them are related to their role as deputy attorneys general defending state court judges and the state attorney general in this case and in the related matter involving Sharon Martin.

Nothing in plaintiff's pleading contradicts the State defendants' arguments in favor of judicial and quasi-judicial immunity, and plaintiff has not opposed their motion in any way. Finding defendants' arguments persuasive, the undersigned recommends that plaintiff's claims against defendants Candee, Mize, Krabbenhoft, and Krause be dismissed because these defendants are entitled to judicial or quasi-judicial immunity.

3. Insufficiency of RICO Claims

Under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), it is criminal to conduct an enterprise's affairs through a pattern of racketeering activity, which is defined as behavior that violates specific federal or state laws that address specified topics and bear specified penalties. Rotella v. Wood, 528 U.S. 549, 552 (2000). For example, racketeering activity includes "any act or threat involving . . . bribery" that is chargeable under State law and punishable by imprisonment for more than one year, and acts that are indictable under 18 U.S.C. § 201, which relates to bribery of public officials. 18 U.S.C. § 1961(1)(A) & (B). RICO includes a private right of action "by which '[a]ny person injured in his business or property' by a RICO violation" may seek damages and ...

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