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Adrian Joe White v. Johnathon Bittis Ruskovish; et al

January 27, 2011

ADRIAN JOE WHITE,
PLAINTIFF,
v.
JOHNATHON BITTIS RUSKOVISH; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT AND GRANTING THIRTY (30) DAYS LEAVE TO AMEND

FACTUAL BACKGROUND

On September 8, 2010, Plaintiff filed this action against Liberty Mutual Fire Insurance Company and Johnathon Bittis Ruskovish. Plaintiff stated that his claims arose under 42 U.S.C. § 1983, and requested declaratory relief pursuant to 28 U.S.C. §§ 2201, 2202. On November 19, 2010, the Court dismissed Plaintiff's complaint with leave to amend.

On December 12, 2010, Plaintiff filed a First Amended Complaint ("FAC"), adding Scranton Law Firm, Glen R. Bennett, Robert J. Beren Jr., Joe Lopez, Nancy Lopez, Gregory A. Williams, Tamela G. Kennedy O'Keefe, and Michael A. Scranton as defendants (collectively "Defendants"). The FAC states that Plaintiff's claims arise out of 42 U.S.C. §§ 1983, 1984,*fn1 and 1985 as well as 28 U.S.C. §§ 2201 and 2202.

The factual basis of Plaintiff's complaint is not particularly clear. Plaintiff asserts that while on his bicycle he was hit by a vehicle driven by Defendant Ruskovish at an intersection in Fresno, California. (Doc. 9, Attachment B at 37.) Defendant Ruskovish is apparently insured by Liberty Mutual Fire Insurance Company ("Liberty Mutual"). Plaintiff filed suit against Defendants in Sacramento County Superior Court for, among other things, personal injuries he received during the accident.

The first cause of action is for breach of contract against the Scranton Law Firm and several of the attorneys employed by the Scranton Law Firm, including "Glen R. Bennett,"*fn2 Robert J. Beren Jr., Tamela G. Kennedy O'Keefe, and Michael Scranton. (Doc. 9 ¶¶ 15-26.) Plaintiff alleges that he employed the legal services of the Scranton Law Firm and its attorneys to represent him in his personal injury suit against Defendant Ruskovish and Liberty Mutual. (Doc. 9 ¶ 15.) Although the events as set forth in the complaint are not entirely clear, it appears Plaintiff was initially represented in his personal injury suit by the Scranton Law Firm, but that firm withdrew from its representation of Plaintiff before the case concluded. Plaintiff asserts that Scranton Law Firm's agreement to represent him was binding "until a settlement was reached from the defendants." (Doc. 9 ¶ 16.) Further, Plaintiff asserts that the Scranton Law Firm filed his case in the Sacramento Superior County Court, which was the wrong venue as the events underlying his claims occurred in Fresno. (Doc. 9 ¶ 17.)

Plaintiff also explains that, although he thought the person who hit him while on his bike was Defendant Ruskovish, insurance documents indicate that the vehicle driven by Ruskovish was actually owned and insured by Joe and Nancy Lopez. Plaintiff has deduced that Joe and Nancy Lopez must necessarily have been the people who were driving the car, and asserts that the Scranton Law Firm failed to correctly identify them for purposes of bringing suit against them. (Doc. 9, ¶ 18 ("yet on a legal letter dated November 6, 2006[,] to the defendant who struck plaintiff with his large truck causing the injuries, defendant Bennet[t] redressed the defendant Ruskovish as being Joe and Nancy Lopez the driver and owner of the vehicle that hit plaintiff, yet attorney Bennett never sued the defendant as being Joe Lopez but sued him as being Johnathan Bettis Ruskovish, in the complaint . . . ").)*fn3

Plaintiff asserts that the Scranton Law Firm and its attorneys decided against representing him in violation of the agreement he had signed with them. After the attorneys wrongfully refused to represent him, they attempted to settle the litigation with Liberty Mutual, collected damages for Plaintiff's injuries through a lien, and wrongfully prevented Plaintiff from receiving any monetary recovery for his injuries. (Doc. 9 ¶ 20 ("defendant attorney on behalf of the Firm placed a lien on the proposed settlement claim in the even that the defendants named [Liberty Mutual] would not settle the case for $2,000,000").)

Plaintiff asserts a second cause of action against Joe and Nancy Lopez for falsely identifying themselves to police as Johnathan B. Ruskovish. Plaintiff also appears to attempt to state a claim for negligence against Joe and Nancy Lopez for driving the vehicle that hit Plaintiff. Finally, Plaintiff asserts that Defendants violated his First, Fifth, and Fourteenth Amendment rights.

DISCUSSION

A. Screening Standard

The Court is required to screen complaints brought by parties proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2). The Court must dismiss a complaint or portion thereof if it 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. Id. 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. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

B. Failure to State a Claim

In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, __ U.S. __ 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all ...


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