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Clem v. Riebe

February 3, 2010



Presently pending are two motions to dismiss plaintiffs' first amended pro se civil rights complaint. Dckt. Nos. 15, 17. Also pending is plaintiff Clem's August 19, 2009 motion to appoint counsel. Dckt. No. 44.

The motions to dismiss were heard on June 24, 2009. Plaintiffs Krista Clem and John O'Sullivan appeared and represented themselves.*fn1 John A. Whitesides appeared on behalf of the "Amador County defendants" (defendants Amador County, Amador County District Attorney's Office, Amador County District Attorney Todd Riebe, Amador County District Deputy Attorney Melinda Aiello and Amador County Animal Control Director John Vail).*fn2 Dckt. No. 17. Franklin G. Gumpert appeared on behalf of the "El Dorado County defendants" (defendants El Dorado County, El Dorado County District Attorney's Office, El Dorado County District Attorney Vern Pierson and El Dorado County Deputy District Attorney Trish Kelliher).*fn3 Dckt. No. 15.

For the reasons set forth below, the court recommends that the motions to dismiss be granted and the motion to appoint counsel be denied. The court also notes that plaintiff John O'Sullivan died in August 2009. Therefore, where leave to amend is granted, the effect of O'Sullivan's death on those claims will be discussed below.*fn4


The First Amended Complaint was filed on February 26, 2009. Dckt. No. 11. The following facts are set forth therein, and in the state court documents that were submitted with the Amador County defendants' Request for Judicial Notice, Dckt. No. 17.*fn5

As a threshold matter, the amended complaint fails to conform to the pleading requirements of Federal Rule of Civil Procedure ("Rule") 8. The complaint, 157 pages in length (93 pages, plus exhibits), Dckt. No. 11, purports to assert twenty-two "causes of action." Many of these claims are repetitious or fail to clearly set forth an appropriate cause of action. Some set forth multiple claims within the same "cause of action" while others confusingly cross reference other claims and repeat the same set of facts many times over. There is also confusion as to which defendants the claims are directed against and which plaintiff seeks redress.

At the relevant times in plaintiffs' first amended complaint, plaintiffs Clem and O'Sullivan resided together with their children at O'Sullivan's ranch in Fiddletown, Amador County. On or before January 4, 2006, one of O'Sullivan's horses died. On January 4, 2006, representatives of Amador County Animal Control, in consultation with its director, defendant John Vail, came to the O'Sullivan ranch, seized five emaciated horses, including one pregnant mare and posted a notice of entitlement to a post-seizure hearing. At the request of O'Sullivan, the dead horse was transported to the University of California at Davis, College of Veterinary Medicine ("U.C. Davis") to determine the cause of death. First Amended Complaint ("FAC") at 12-13, 17.

Also on January 4, 2006, O'Sullivan was arrested and taken into custody on a felony charge of making criminal threats against a neighbor. FAC at 13. On January 6, 2006, O'Sullivan was arraigned on this matter in Amador County Superior Court, pursuant to a complaint filed by defendant Amador County Deputy District Attorney Melinda Aiello (Case No. 06CR9571). Id. at 13, 19. Plaintiffs maintain that exculpatory evidence then existed (recordings of telephone conversation between O'Sullivan and others) but was never admitted. Id. at 13, 17. On January 9, 2006, O'Sullivan was released on bond. Id. at 13-14.

On January 18, 2006, a post-seizure hearing was held in Amador County before an administrative law judge ("ALJ") who found that the seizure of the horses was justified, but that there was no evidence of criminal neglect. Id. at 14. Director Vail was present at the hearing. The ALJ ordered that the horses be made available to O'Sullivan's veterinarian who, in consultation with the veterinarian for Animal Control, would decide when the horses were fit to be returned to O'Sullivan. Id. at 14, 18. O'Sullivan acknowledged ownership of and responsibility for the horses, and asked for an accounting and opportunity to pay the charges to date. Id. at 18. Plaintiffs allege that to date, plaintiffs and plaintiffs' veterinarian have been denied access to the horses. Id. at 15.

On January 20, 2006, both plaintiffs were arraigned on a criminal complaint for felony animal cruelty (Case No. 06CR9662), filed by defendant Amador County District Attorney Todd Riebe and defendant Deputy District Attorney Aiello. Id. at 20. At the arraignment, Clem stated that she did not own the horses (although she maintains that she had, and continues to have, an ownership interest in the foal). Id. Both plaintiffs were released on their own recognizance. Id.

Also on January 20, 2006, a preliminary hearing was held in Case No. 06CR9571 (criminal threats), wherein probable cause was found to hold O'Sullivan for trial on a felony charge of violating California Penal Code ("Penal Code") section 422, for making criminal threats of bodily injury against an individual who reported O'Sullivan to the Animal Control authorities. Dckt No. 17, Ex. 1, 2. On March 24, 2006, Deputy District Attorney Aiello requested that the criminal threats case be dismissed and the court dismissed the case. FAC at 20. U.C. Davis released necropsy reports on O'Sullivan's dead horse in January 2006 (preliminary report) and February 2006 (final report), showing a potentially fatal, but readily treatable, parasitic disease. Plaintiffs contend that this evidence was exculpatory, but defendants did not admit the preliminary report into evidence at the May 2006 preliminary hearing, and withheld the final report until dismissal of charges in March 2007. FAC at 21-22, 43-44.

On May 19, 2006, a preliminary hearing was held in Case No. 06CR09662 (animal cruelty), wherein the judge found probable cause to move the case to trial against both Clem and O'Sullivan. Id. at 44, Dckt. No. 17, Ex. 3, 4.

On November 29 or 30, 2006, a second animal cruelty felony complaint was filed against both plaintiffs in Amador County Superior Court (Case No. 06CR11579). Id. at 22, 44.

On March 19, 2007, a plea agreement was accepted by the Amador County Superior Court in Case No. 06CR9662 (first animal cruelty case), pursuant to which O'Sullivan pled no contest to two misdemeanor violations of Penal Code section 597.1, and agreed to pay restitution, in exchange for the return of his horses, and the dropping of charges against Clem in Case No. 06CR9662 (first animal cruelty case), and against both Clem and O'Sullivan in Case No. 06CR11579 (second animal cruelty case). Id. at 23-24, 44, Dckt. No. 17, Ex. 5, 6.

On March 23, 2007, two horses were returned to O'Sullivan, which he sold on March 25, 2007. FAC at 24. Defendant Vail informed O'Sullivan that the remaining three horses and new foal needed to be quarantined because of recent exposure to a highly contagious bacterial disease. Id. at 24, 45-46.

On March 29, 2007, the Amador County District Attorney's Office filed a motion to set aside the plea agreement in Case No. 06CR9662 (first animal cruelty case), on the ground that the return of the horses was barred by statute upon defendant's conviction of Penal Code section 597.1(k). Id. at 27.

Meanwhile, on April 6, 2007, plaintiffs learned from a member of the press that U.C. Davis had issued a final necropsy report in February 2006; plaintiffs sought and obtained a faxed copy of the report from U.C. Davis. Id. at 26. In late April 2007, plaintiffs obtained an independent review of the report from an expert who opined that O'Sullivan's horse had died from "larval cyathostominosis," which causes "massive rapid weight loss and death." Id. at 26-27. Plaintiffs argue that this demonstrates they did not mistreat the horses. Id.

On May 15, 2007, in Amador County Superior Court, O'Sullivan's plea was vacated in in Case No. 06CR9662 (first animal cruelty case), and the animal cruelty charges against him reinstated under Penal Code section 597.1 in Case No. 06CR9662 (first animal cruelty case). Id. 28-29, Dckt. No. 17, Ex. 7. The Amador County Superior Court held that the plea agreement violated the terms of the statute under which O'Sullivan pled no contest, and was therefore an invalid plea. Dckt. No. 17, Ex. 7. No charges were reinstated against Clem. Id.

On March 13, 2008, O'Sullivan pled no contest to a misdemeanor count of violating Penal Code section 597.1 in Case No. 06CR9662 (first animal cruelty case), with the amount of restitution to be subsequently determined.*fn6 Dckt. No. 17, Ex. 8. The parties concurred at the hearing before this court that a restitution hearing has not yet been scheduled.

The allegations in the complaint against Beth DiCaprio contend that she conspired with the other defendants to take the horses from plaintiffs and used the horses for her own benefit. DiCaprio is associated with the Grace Foundation, a private horse rescue group located in El Dorado County, that had at some point housed the seized horses.*fn7 Plaintiffs also contend that DiCaprio pressured the district attorney's office into vacating the first plea agreement and defamed plaintiffs. FAC at 27, 78.

The complaint sets forth twenty-two federal and state law claims which are addressed below. Defendants maintain the complaint should be dismissed pursuant to Rules 12(b)(6) and 4(m).


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 at 1388, 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 v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).


Service of Process

This case commenced in January 2008, and was beset by service of process issues for nearly a year. Plaintiffs filed the original complaint on January 2, 2008. Dckt. No. 1. On the same day, the court ordered service of process to be completed within one hundred twenty days pursuant to Rule 4(m). Dckt. No. 4. On June 30, 2008, more than two months after the deadline passed and plaintiffs had failed to effect service of process, the court ordered plaintiffs to show cause why the case should not be dismissed for failure to timely serve process and failure to follow court orders. Dckt. No. 6. Plaintiffs responded and requested additional time and expressed their intent to file an amended complaint. Dckt. No. 7.

On November 25, 2008, the court found that plaintiffs failed to show good cause for the lengthy extension sought and denied the request. Dckt. No. 8. However, mindful of plaintiffs' pro se status, the court granted plaintiffs ten days to complete service as required by Rule 4 and indicated that failure to comply may result in a recommendation that the action be dismissed. Id. On December 4, 2008, plaintiffs filed a response indicating they did not receive the court's order until December 1, 2008, because their post office box cannot be accessed on the weekends and requested an additional extension. Dckt. No. 9.

On December 31, 2008, the court issued another order and, again mindful of plaintiffs' pro se status, provided plaintiffs sixty days to file an amended complaint and complete service of process. Dckt. No. 10. Despite this extension, the court reserved for a later determination all legal issues concerning the timing, filing and service of plaintiffs' pleadings. Id. However, plaintiffs again failed to fully abide by the court's order. While certain defendants were timely served with the amended complaint, pursuant to the court's order, service was not timely as to defendants Vern Pierson, Trish Kelliher, Melinda Aiello and Beth DiCaprio. Dckt. Nos. 11, 12, 13, 14.

Rule 4(m) requires a district court to grant an extension of time to serve a defendant if the plaintiff shows good cause for the delay in service. Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007); In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). The court must consider whether a plaintiff has shown good cause for the delay in service of process on a case-by-case basis. In re Sheehan, 253 F.3d at 512. To justify more time for service of a complaint based on "good cause," a plaintiff may "be required to show that: (a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed." Boudette v. Barnette, 923 F.2d 754, 755 (9th Cir. 1991) (analyzing Rule 4(j), the predecessor of Rule 4(m).)

Here, plaintiffs failed to demonstrate good cause for an extension of time. Indeed, they failed to provide any information as to whether the defendants in question received actual notice of the lawsuit. Despite several extensions provided by the court, plaintiffs failed to even attempt service until more than one year after the original complaint was filed. While pro se parties are entitled to some lenity, they must at least attempt to comply with the rules and ...

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