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MICHAEL J. WILLIAMS v. JAY EDWARD CERNY dba LOS OLIVOS

December 1, 2010

MICHAEL J. WILLIAMS,
PLAINTIFF,
v.
JAY EDWARD CERNY DBA LOS OLIVOS CML, INC., CCOW DBA COUNTY BANK OF (DOCUMENT 1) MERCED, MATT PERETZ DBA ARGO EQUITIES,
DEFENDANTS.



Plaintiff Michael J. Williams ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant complaint against Defendants Jay Edward Cerny, dba Los Olivos CML, Inc., CCOW, dba County Bank of Merced, and Matt Peretz, dba Argo Equities, on September 30, 2010. (Doc. 1.)

The opinion of the court was delivered by: Gary S. Austin 6i0kij United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S COMPLAINT

DISCUSSION

A. Screening Standard

Pursuant to Title 28 of the United States Code section 1915(e)(2), the Court must conduct an initial review of the complaint for sufficiency to state a claim. The Court must dismiss a complaint or portion thereof if the Court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . .." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While legal conclusions can provide a framework of a complaint, they must be supported by factual allegations. Iqbal, 129 S.Ct. at 1950. While factual allegations are accepted as true, legal conclusion are not. Iqbal at 1949.

In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. V. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

A pleading may not simply allege a wrong has been committed and demand relief. The underlying requirement is that a pleading give "fair notice" of the claim being asserted and the "grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47-48 (1957); Yamaguchi v. United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997).

B. Plaintiff's Allegations

Plaintiff's complaint alleges a violation of his rights pursuant to Title 18 of the United States Code section 1346, or "the 'honest services' fraud statute," as well as a breach of fiduciary duty pursuant to Title 29 of the United States Code section 1109. (Doc. 1 at 1.) Generally speaking, Plaintiff claims that Defendants were privy to certain financial information related to his business, B & T Industries, and that Defendants used the information improperly, to the degree Plaintiff suffered significant losses while Defendants benefitted financially. (Doc. 1 at 2-4.) Plaintiff seeks damages in the amount of $4,200,000. (Doc. 1 at 4-5.)

C. Analysis

1. 18 U.S.C. § 1346

Plaintiff claims that all Defendants have "violated rights protected under federal law" pursuant to Title 18 of the United States Code section 1346, the "'honest services' fraud statute." (See Doc. 1 at 1.)

Title 18 of the United States Code involves crimes and criminal procedure. More particularly, section 1346 of that title, specifically referenced by Plaintiff, provides as follows: "For purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or ...


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