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Hamer v. El Dorado County

February 19, 2010

PATRICK MICHAEL HAMER; DONNA LEE HAMER, PLAINTIFFS,
v.
EL DORADO COUNTY, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Presently before the court are (1) defendants Ted Gaines and Steve Davey's motion to dismiss, Dckt. No. 42; (2) defendants County of El Dorado, Vern Pierson, Dick Jones, Worth Dikeman, Ray Nutting, Helen Bauman, Brenda Bailey, Jeff Neves, Fred Kollar, and Dan Johnson's (the "County defendants") motion to dismiss, Dckt. No. 44; (3) defendant Bob Anderson's motion to dismiss and motion to join in the other pending motions to dismiss, Dckt. No. 45; (4) defendant David Randall's motion to join in the other motions to dismiss, Dckt. Nos. 55, 57, 65; and (5) defendant Edmund G. Brown, Jr.'s motion to dismiss,*fn1 Dckt. Nos. 58, 59.*fn2 Plaintiffs oppose the motions.*fn3 Dckt. Nos. 48, 49, 54, 68, 69, 70, 71. For the reasons stated herein, the undersigned recommends that the motions be granted.

I. BACKGROUND

On October 20, 2008, plaintiffs filed a first amended complaint in this action. Dckt. No. 5. The County defendants, Bob Anderson, Ted Gaines, and Steve Davey moved to dismiss that complaint on various grounds. Dckt. Nos. 6, 8, 28. On June 9, 2009, the undersigned granted the motions to dismiss and gave plaintiffs thirty days to "file and serve a Second Amended Complaint that does not exceed 25 pages in length and conforms to the pleading requirements set forth [in that order]." Dckt. No. 34. The order noted that plaintiffs' 132-page first amended complaint did not conform to Federal Rule of Civil Procedure ("Rule") 8(a) and provided plaintiffs with detailed requirements for any second amended complaint. Id.

Plaintiffs filed a second amended complaint on July 9, 2009. Dckt. No. 35. The claims stated therein stem generally from an alleged dispute between plaintiffs and their former neighbor, defendant Randall, and the other defendants' failure to protect plaintiffs from Randall. Id. Plaintiffs contend, inter alia, that defendants' failure to protect them (or to apprehend Randall for his allegedly criminal activities) was in retaliation for complaining about defendants' conduct. Id. Plaintiffs assert the following claims for relief:

(1) RICO, 18 U.S.C. § 1962 (including but not limited to 42 U.S.C. § 1341 (intangible right of honest services); Cal. Penal Code §§ 132, 134 (fraud and deceit, instrument in writing), 182(a)(1)(2)(4)(5)(b) (conspiracy to commit a crime and obstruct justice); 18 U.S.C. §§ 1961-68; 18 U.S.C. § 241 (conspiracy to injure or intimidate for the exercising of federal right)

(2) Cal. Civ. Code § 1708 (duty of care); 42 U.S.C. § 1983 conspiracy to deprive rights (including, but not limited to 42 U.S.C. § 1341 (the intangible right of honest services); Cal. Penal Code §§ 132, 133, 134 (false statement, fraud and deceit, instrument in writing); 182(a)(1)(2)(4)(5)(b) (conspiracy to commit a crime and obstruct justice); 18 U.S.C. § 241 (conspiracy to injure or intimidate for the exercising of federal right)

(3) Cal. Civ. Code § 1708 (duty of care); Fourth Amendment (unreasonable search); First Amendment (right to redress grievances); 42 U.S.C. § 1983 conspiracy to deprive rights (including, but not limited to 42 U.S.C. § 1341 (the intangible right of honest services); Cal. Penal Code §§ 132, 133, 136.1, 136.2 (false statement, fraud and deceit, instrument in writing, injunction); 182(a)(1)(2)(4)(5)(b) (conspiracy to commit a crime and obstruct justice); 18 U.S.C. § 241 (conspiracy to injure or intimidate for the exercising of federal right)

(4) Cal. Civ. Code § 1708 (duty of care); conspiracy to deprive rights (including, but not limited to 42 U.S.C. § 1341 (judicial corruption, the intangible right of honest services); Cal. Penal Code §§ 132, 133, 134 (false statement, fraud and deceit, instrument in writing); 182(a)(1)(2)(4)(5)(b) (conspiracy to commit a crime and obstruct justice); 18 U.S.C. § 241 (conspiracy to injure or intimidate for the exercising of federal right)

(5) Fourth Amendment; Fourteenth Amendment (deprivation of property); conspiracy to deprive rights (including, but not limited to 42 U.S.C. § 1341 (the intangible right of honest services); Cal. Penal Code §§ 132, 133, 134 (false statement, fraud and deceit, instrument in writing); 182(a)(1)(2)(4)(5)(b) (conspiracy to commit a crime and obstruct justice); 18 U.S.C. § 241 (conspiracy to injure or intimidate for the exercising of federal right)

(6) First Amendment; Fourteenth Amendment (redress grievance and due process)

(7) Cal. Civ. Code 1708.7 (stalking)

(8) Intentional infliction of emotional distress

(9) Conversion

(10) Declaratory relief

(11) Preliminary injunction

(12) Duress

As a threshold matter, plaintiffs have again failed to comply with the pleading requirements of Rule 8. They have also failed to comply with the specific instructions in this court's prior order of June 9, 2009. Although their second amended complaint is technically 25 pages in length, it is in a very small font, uses decreased margins, and is even more difficult to read than the former complaint. It also continues to be rambling and repetitive, continues to obscure rather than clarify plaintiffs' claims, and continues to make legal arguments in lieu of alleging facts. See Dckt. No. 34 at 3. Plaintiffs' first through fifth claims set forth multiple claims within the same "cause of action." It is unclear which facts support which claims, which defendants specific claims are directed against, and which plaintiff seeks redress. Many of the supposed causes of action include references to multiple possible claims but fail to focus on any and the court must guess as to what claim is actually being asserted. Although in some instances a claim can be discerned, in most it is simply not possible to determine what cause of action is pleaded.

Put generally, the second amended complaint does not "set forth a short and plain statement of the relevant facts, followed by a brief statement of each legal claim, sequentially setting forth the elements of each claim, and how the facts of this case specifically satisfy those elements, with reference to the challenged conduct of each defendant." See Dckt. No. 34 at 3. Although the second amended complaint will ultimately be dismissed on these grounds, the court first address the arguments set forth in the five pending motions to dismiss as certain purported claims in the complaint cannot possibly be cured by amendment.

II. LEGAL STANDARDS

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 ...


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