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Laura Leskinen v. Carolyn A. Halsey

March 4, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, who is proceeding without counsel, filed her complaint on December 17, 2010.*fn1 Presently before the court is plaintiff's application to proceed in forma pauperis (Dkt. No. 2) and three requests submitted by plaintiff on February 14, 2011 (Dkt. No. 3.). For the reasons stated below, the undersigned grants plaintiff's application to proceed in forma pauperis, but dismisses her complaint pursuant to 28 U.S.C. § 1915(e)(2). Such dismissal is without prejudice, and plaintiff is granted leave to file an amended complaint as provided herein. Plaintiff's additional requests for relief filed on February 14, 2011, are addressed below.

I. Plaintiff's Application to Proceed In Forma Pauperis Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff's application and declaration make the showing required by 28 U.S.C. §§ 1915(a)(1) and 1915(2). Accordingly, the undersigned grants plaintiff's request to proceed in forma pauperis.

The determination that a plaintiff may proceed in forma pauperis does not complete the inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against an immune defendant.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous if that claim is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

In assessing whether a plaintiff's complaint fails to state a claim on which relief can be granted, the court adheres to the "notice pleading" standards. Under the notice pleading standards of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facialplausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez, 203 F.3d at 1130-31.

II. Screening of Plaintiff's Complaint

Generally, plaintiff's 33-page, 155-paragraph complaint alleges 12 claims for relief against 14 defendants, all of whom are alleged to be involved in an overarching conspiracy to deprive plaintiff of a portion of assets allegedly willed to plaintiff in the will of plaintiff's grandmother. Plaintiff alleges all claims against all defendants in rather conclusory fashion. Plaintiff alleges that this court has subject matter jurisdiction over this action under the federal question and diversity jurisdictional statutes. See 28 U.S.C. §§ 1331, 1332. At least provisionally, the undersigned finds that this court has subject matter jurisdiction to consider plaintiff's claims.

There are several deficiencies in plaintiff's complaint that preclude service of the complaint. These pleading deficiencies are addressed below.

A. Lack of Distinction Among Defendants

Plaintiff's complaint is plagued with an overarching pleading problem in that plaintiff has alleged all of her claims against all defendants. Although such an approach is not per se impermissible, plaintiff must state a plausible claim against each defendant in accordance with the pleading standards discussed above. Instead, plaintiff has indiscriminately alleged a number of claims against all defendants with no indication of the conduct by each defendant that supports each claim against that defendant. Additionally, it is not sufficient to simply allege a vast conspiracy as a substitute for factual allegations. For this reason alone, plaintiff's complaint is dismissed without prejudice. Plaintiff will be given leave to amend her complaint to more adequately apprise defendants of the claims against them. The undersigned turns next to the myriad additional deficiencies that require dismissal of plaintiff's complaint as presently pled.

B. Plaintiff's Mail Fraud and Wire Fraud Claims In her first two claims, plaintiff alleges that all defendants committed criminal wire fraud and mail fraud in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 1341, respectively. The undersigned dismisses these claims because Sections 1341 and 1343 are criminal statutes that courts have concluded do not provide a plaintiff with a direct, private right of action. See Wilcox v. First Interstate bank of Ore., N.A., 815 F.2d 522, 533 n.1 (9th Cir. 1987) ("Other than in the context of RICO, federal appellate courts hold that there is no private right of action for mail fraud under 18 U.S.C. § 1341."); Idowu v. Astheimer, No. C 10-02672 SBA, 2011 WL 89965, at *2 (N.D. Cal. Jan. 11, 2011) (unpublished) (collecting cases). Accordingly, plaintiff's first two claims are dismissed.

Although plaintiff cannot directly sue any defendants under the federal mail and wire fraud statutes, a violation of those provisions may serve as predicate acts in support of a claim brought pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010). The Ninth Circuit Court of Appeals recently summarized the mechanics of a RICO claim:

Under RICO, it is "unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c). "To state a claim under § 1962(c), a plaintiff must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir. 2007) (en banc). A " 'pattern' . . . requires at least two acts of racketeering activity." 18 U.S.C. ยง 1961(5). " '[R]acketeering activity' is any act indictable under several ...

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