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Zochlinski v. Regents of the University of California

January 27, 2010



Presently pending are three motions to dismiss plaintiff's complaint pursuant to Rule 12(b)(6), Federal Rules of Civl Procedure ("Fed. R. Civ. P.") submitted for decision on the papers on June 9, 2009. Dckt. Nos. 12, 16, 17. Plaintiff also filed a request to proceed in forma pauperis on May 19, 2009. Dckt. No. 29. For the following reasons, the court recommends that plaintiff's complaint be dismissed with prejudice.


Plaintiff, who proceeds pro se, filed this action on March 28, 2008, in the Yolo County Superior Court. He alleges a conspiracy by various officials of the University of California, the City of Davis and Yolo County to harass him.*fn1 On January 21, 2009, defendants Regents of the University of California, Larry Venderhoef and Jeffrey Gibeling ("University Defendants"), removed this pro se action from the Yolo County Superior Court. Dckt. No. 1. The next day, defendants McDonough Holland & Allen PC, Harriet Steiner, Seth Merewitz and Kara Ueda ("Law Firm Defendants") and defendants City of Davis, Lorrie Thornton, Mark Wood, Elvia Garcia-Ayala, Don Saylor, William Emlen, Tanya Nakatani, Steven Pierce, Katherine Hess and County of Yolo ("Local Defendants") joined in the removal of this action from state court. Dckt. Nos. 4, 5. The defendants now move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

As a threshold matter, the complaint fails to conform to the pleading requirements of Fed. R. Civ. P. 8. It lacks a straightforward and complete statement of the pertinent facts and fails to articulate precisely what claim(s) is asserted as to which defendant. While plaintiff has attempted to match legal claims to defendants, it appears that nearly all legal claims are vaguely being asserted as to all defendants. However, given the text of the complaint the court can only guess. The confusing and dense fifty-five page First Amended Complaint names nearly fifty defendants and sets forth a dizzying array of factual allegations that appears like a diary recounting plaintiff's interactions in the City of Davis with various defendants concerning the property he rents and incidents at city meetings and hearings. Plaintiff also describes in detail, most irrelevant, his problems with neighbors and his various medical ailments. The court notes that the First Amended Complaint in question here is not plaintiff's only attempt at amending the pleading in this case, this action is now the fifth of plaintiff's cases that has come before this court.*fn2

The instant complaint alleges that the University Defendants conspired with the City of Davis and Yolo County officials to harass plaintiff and inequitably enforce against him local housing and nuisance ordinances in order to hamper plaintiff's ability to continue his other litigation against UCD. Compl. at 39. Plaintiff states that defendants conspired to obtain plaintiff's eviction from his Davis residence, one side of a rented duplex, while ignoring similar violations by other neighbors on the same street. Compl. at 11-12. The complaint further contends that several of the defendants conspired with UCD officials to slander plaintiff. Compl. at 7-8.

The complaint describes in detail the condition of the exterior grounds of plaintiff's property, and plaintiff's efforts to comply with city directives. Plaintiff recounts numerous citations against him for ordinance violations; meetings with local officials, most of which plaintiff states he recorded; site visits by city officials; plaintiff's interactions with his landlord, plaintiff's neighbors and occupants of a nearby homeless encampment.

Throughout this recitation, plaintiff emphasizes his other prior and ongoing legal issues with local and University officials. At the heart of plaintiff's allegations is his assertion that University officials are persecuting plaintiff to ensure that he does not return to the University, to render him unable to retain housing in Davis and to prevent him from actively pursuing litigation against the University.

Plaintiff sets forth a long menu of potential federal and state causes of action and asserts generally that he should be permitted to amend his complaint pursuant to the court's instructions, and to initiate discovery in order to elucidate the factual underpinnings of his claims. For the reasons discussed below, the court declines the invitation to suggest causes of action for plaintiff.

Plaintiff seeks injunctive relief and monetary damages in the amount of thirty million dollars. Compl. at 54.

Plaintiff's Prior Cases

The first of plaintiff's federal suits was filed in 1994 against the Yolo County District Attorney's Office, the Davis Police Department, the Regents of the University of California and various University employees alleging numerous civil rights violations. Zochlinski v. County of Yolo, et al., Civ. S-95-1687 DFL DAD PS.*fn3 This action was dismissed for failure of the second amended complaint to comply with the pleading requirements of Fed. R. Civ. P. 8, and as frivolous under 28 U.S.C. § 1915. The Ninth Circuit upheld the dismissal because the complaint "is unintelligible." Zochlinski v. County of Yolo, 1998 WL 78354 (9th Cir. 1998).

Plaintiff filed his second action in this court in 2002. Zochlinski v. University of California, et al., Civ. S-02-2336 LKK DAD PS. The court described plaintiff's amended complaint as follows: "The amended complaint . . . alleges that plaintiff 'has been involved with the University of California as a student and/or employee from 1971 through 1976 and 1984 through 1992.' [] According to the amended complaint, plaintiff's efforts to attend and/or work at the University have been thwarted by the more than one hundred named defendants, including the Regents of the University of California and various departments and faculty, staff and students associated with the University of California system over the past thirty years." Case No. Civ. S-02-2336 LKK DAD PS, Dckt. No. 7, at 3. The court dismissed the amended complaint for failure to comply with Fed. R. Civ. P. 8, as legally frivolous and failing to state a claim. Dckt. Nos. 7, 9. The Ninth Circuit upheld the dismissal on the ground that "Zochlinski failed to cure the deficiencies the Magistrate Judge identified in dismissing his original complaint." Zochlinski v. Regents of University of Cal., 109 Fed. Appx. 893 (9th Cir. 2004).

Plaintiff's third action, Zochlinski v. University of California, et al., Civ. S-04-1702 DFL PAN PS, was filed in state court in 2003 and timely removed to this court in 2004. The court found this case virtually indistinguishable from plaintiff's second case, and dismissed the complaint for failure to comply with Rule 8 and based on res judicata grounds. Case No. Civ. S-04-1702 DFL PAN PS, Dckt. Nos. 19, 24. The court explained that further opportunity for amendment would be futile, stating: "Plaintiff has demonstrated time and again his inability to cure deficiencies in his complaints despite ample opportunity, specific instructions and repeated extensions of time. It would, moreover, be unduly prejudicial to defendants to permit further amendment of the pending complaint. Defendants have been tasked for more than ten years with defending the same set of facts in state and federal court. Plaintiff's repeated filings coupled with his failure adequately to present his claims suggests harassment as a motive this court should not further tolerate." Id., Dckt. No. 19, at 18. The Ninth Circuit upheld the dismissal on the ground that plaintiff's complaint failed to comply with the requirements of Rule 8, being "'prolix in evidentiary detail, yet without . . . clarity as to whom [Zochlinski] [was] suing for what wrongs.'" Zochlinski v. University of CA, 246 Fed. Appx. 418, 419 (9th Cir. 2007).

The fourth of plaintiff's actions to come before this court was filed by plaintiff in 2008. In that case, Zochlinski v. University of California, Civ. S-08-0024 LEW KJM PS, plaintiff again challenges his disqualification from the UCD graduate program in 1993. Although the court granted in part defendants' motion to dismiss due to the failure of the complaint to comply with the pleading requirements of Rule 8, the case remains administratively stayed pending resolution of a mandamus action addressing the same claims in state court. See id.; UC's Request for Judicial Notice, Dckt. No. 13, Ex. C.

The instant complaint shares many of the same deficiencies as plaintiff's prior complaints. Plaintiff repeatedly requests the opportunity to amend his complaint once he receives instructions from the court. The court is mindful of plaintiff's litigation history and his repeated failures to properly amend his complaints or abide by court orders, despite many opportunities, in numerous cases.


In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll ...

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