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Boulware v. Dep't of Insurance

October 8, 2009


The opinion of the court was delivered by: Manuel L. Real United States District Judge


For the reasons discussed below, the Complaint is dismissed with leave to amend. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).


Plaintiff, a state prisoner proceeding pro se, lodged a "Civil Rights Complaint" on June 16, 2009. On June 30, 2009, the Court issued an Order denying Plaintiff leave to file the action without prepayment of the full filing fee, accompanied by an explanatory Attachment ("Attachment"). On August 5, 2009, Plaintiff filed a "Motion for Reconsideration Pursuant to Local Rule 7-18" ("Motion for Reconsideration"). On August 7, 2009, the Court issued an Order permitting Plaintiff to file the Complaint without prepayment of the full filing fee, and the Complaint was filed on that date.


Plaintiff's claims arise out of his conviction in 2003 on two counts of worker's compensation fraud in violation of California Insurance Code section 1871.4(a)(1) and one count of insurance fraud in violation of California Penal Code section 550(a)(1). See People v. Boulware, 2004 WL 2384372 (Cal. Ct. App., Oct. 26, 2004). The worker's compensation fraud convictions were based on evidence that Plaintiff knowingly failed to disclose to examining physicians a previous injury that was material to the evaluation of Plaintiff's worker's compensation claim. The insurance fraud conviction was based on evidence that, in support of Plaintiff's claim concerning an injury allegedly received at a Von's market, Plaintiff submitted a physician's receipt reflecting payment in connection with a different injury.

On January 5, 2007, this Court entered judgment granting conditional habeas relief with respect to Plaintiff's worker's compensation fraud convictions only. See Boulware v. Ollison, CV 06-3744-R(E). This Court also determined that the evidence sufficed to support the worker's compensation fraud convictions, and that Plaintiff was not entitled to habeas relief on his insurance fraud conviction. The State subsequently announced that it was unable to proceed with a retrial of the worker's compensation counts, and the state court dismissed those counts. See Boulware v. Marshall, 621 F. Supp. 2d 882, 886 (C.D. Cal. 2008). The state court resentenced Plaintiff on the insurance fraud count. Id. Plaintiff filed a habeas petition in this Court challenging the resentencing. See Boulware v. Marshall, CV 08-4665-R(E). On December 9, 2008, this Court denied the petition. See Boulware v. Marshall, 621 F. Supp. 2d 882 (C.D. Cal. 2008).

The present Complaint purports to allege civil rights violations pursuant to 42 U.S.C. sections 1983 and 1985(2), violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68, and a state law malicious prosecution claim. Defendants are: (1) California Department of Insurance ("DOI") Commissioner Steve Poizner, in his individual and official capacity; (2) former DOI Commissioners Harry Low and John Garamendi, in their individual capacities only; (3) DOI "fraud division agents" Shawn Ferris, Ruby Favis, Willie Lawrence, Kimberly Staal, Daniel McKerren and Barbra Bridgewater, in their individual and official capacities; (4) twenty insurance companies; (5) Los Angeles County deputy district attorneys Lance Wong and David Wells; (6) private attorney Gene Shioda; (7) private party Paul Cain III; and (8) fictitious "Doe" Defendant DOI agents, insurance companies and deputy district attorneys.


The Complaint is somewhat confusing, but appears to allege the following:

In 1999, Plaintiff allegedly filed a worker's compensation claim after assertedly sustaining an on-the-job injury to his shoulder while working for Defendant Cain (Complaint, pp. 18, 24-25). Defendants Cain and Shioda allegedly delayed the Worker's Compensation Appeals Board ("WCAB") trial for years (id., p. 18). Defendants Cain, Shioda and Staal allegedly attempted to stop the WCAB proceeding by asserting that Plaintiff had committed fraud (id., p. 18). Defendant Shioda allegedly falsely told the California Department of Insurance Fraud Division that Plaintiff was an independent contractor (id., p. 25). Shioda's assertedly fraudulent complaints to the Fraud Division allegedly resulted in an official investigation of Plaintiff (id., p. 25). Plaintiff alleges that Cain was an "illegally uninsured employer," and that DOI officials had no power to investigate claims of insurance fraud made by an uninsured employer (Complaint, p. 19). Defendants Ferris and Lawrence allegedly caused Plaintiff's parole to be revoked on October 12, 2000 based on assertedly false allegations of worker's compensation fraud, as a result of which Plaintiff allegedly was incarcerated for a year (id., p. 26).

On January 5, 2000, Plaintiff allegedly cut his finger on a piece of shelving at Von's market (id., p. 19). On January 7, 2000, Von's manager John Robinson allegedly telephoned Plaintiff and instructed Plaintiff to obtain a receipt for the injuries so that Von's could pay Plaintiff (id., p. 19). On January 7, 2000, the office manager at the office of the doctor who was treating Plaintiff's shoulder injury allegedly authorized Irene Ochoa to treat Plaintiff's cut thumb, and allegedly instructed the billing clerk, Maria Alvarez, to write a receipt for this treatment (id., p. 20). On January 10, 2000, Robinson allegedly told Plaintiff the claim was denied (id.).

On September 13, 2002, a WCAB judge allegedly entered judgment for Plaintiff in the amount of $20,000 on Plaintiff's worker's compensation claim (id.). On September 17, 2002, Defendants McKerren and Staal interviewed Alvarez (id.). On October 29, 2002, Alvarez allegedly told Defendant McKerren that she did not write or recognize the handwriting on the doctor's receipt given to Plaintiff (id.). On November 6, 2002, Defendants Staal and McKerren allegedly interviewed Robinson concerning Plaintiff's claim regarding the alleged Von's injury (id., p. 21). On December 17, 2002, Defendant Staal allegedly filed a report identifying Cain as a victim of worker's compensation fraud and identifying Von's as the victim of attempted grand theft (id.). On January 7, 2003, Defendants Staal and Wells allegedly obtained a warrant for Plaintiff's arrest, without probable cause, for worker's compensation fraud and insurance fraud (id., pp. 22, 28). Defendants Staal and Wells allegedly omitted facts from the warrant application (id., pp. 28-29). Plaintiff was arrested on January 9, 2003 (id., p. 28).

On July 7, 2003, Defendants Staal and Wells allegedly instructed Alvarez to change Alvarez' initial statement concerning Plaintiff's asserted finger injury (id.). On March 10, 2003, Defendant Wells allegedly instructed Staal to induce Alvarez to change Alvarez' statement identifying the person who wrote the doctor's receipt (id., p. 22). Defendants Staal and Wells allegedly instructed Alvarez to fabricate her statement (id.). Based on these alleged "fabricated facts and omissions," Plaintiff was "falsely convicted" (id.).

The Complaint contains four claims for relief, alleging:

(1) violation of RICO, 18 U.S.C. section 1962(b); (2) malicious prosecution; (3) violation of Plaintiff's civil rights protected by the First, Fourth and Eighth Amendments and Due Process, pursuant to 42 U.S.C. section 1983; and (4) conspiracy ...

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