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Lonnie G. Schmidt, et al v. United States of America

May 20, 2011

LONNIE G. SCHMIDT, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction and Summary

This is the third dispositive motion proceeding in the above referenced case. The historical adage: You have to know where you've been before you know where you're going, is especially pertinent here. The undersigned will first give a concise background which lays out the general nature of this case. Thereafter, the undersigned will detail:

1. The defendants remaining;

2. The claims pertinent to any remaining defendants and the plaintiff(s) related to those claims;

3. The precise issues to be determined in this case;

4. The recommended determination of those issues.

After extensive review, the undersigned concludes that most of the claims against the remaining defendants be dismissed. These Findings and Recommendations will help to bring order to a case potentially spinning out of control.

Procedural Background

The action is part of the continuing saga involving these plaintiffs in what probably can be construed as spite litigation. The initiation of the saga involved the filing of lawsuits by the Securities and Exchange Commission (SEC) in federal court in Texas against individuals not plaintiffs herein. Apparently, however, some of the plaintiffs herein were in possession of assets subject to seizure by a court appointed receiver. A lengthy history of conduct contemptuous of the Texas federal court by Lonnie and Daniel Schmidt ensued, resulting in arrest warrants being issued, and the actual incarceration of Lonnie Schmidt for a substantial period of time. It also appears that plaintiff Daniel Schmidt was a longtime fugitive on an outstanding arrest warrant issued by the Texas federal judge. The receiver appointed in the Texas actions has sought to seize assets of the plaintiffs in order to comply with his appointing authority orders. The remaining plaintiffs allege that they were "victims" of the enforcement of the federal court orders and the appointed receiver's orders.

Defendants in these actions are grouped into two sets: the Receiver defendants (Warfield, Crawford, Murphy and Atwood) and the Federal Defendants (the United States, United States District Judge Buchmeyer, United States Marshal Antonio Amador, Deputy Marshals Timothy Ashton, Marta Fonda, Randy Ely, and SEC Attorney, Jeffrey Norris). The undersigned issued Findings and Recommendations with respect to the Receiver defendants on March 16, 2010, in which the undersigned recommended the dismissal of the Receiver defendants based on quasi-judicial immunity. This recommendation was adopted by the district judge on July 28, 2010, and these defendants have been dismissed from the case. Insofar as several of the claims only involved these defendants, the undersigned will detail such in the sections regarding remaining claims below.

With respect to the federal defendants, Judge Buchmeyer was dismissed as he is deceased, and no appropriate substitution was tendered. See Findings and Recommendations dated May 27, 2010, and the district judge adopting same of July 28, 2011.*fn1 In that same order, defendants Ely, Fonda and Norton were dismissed for lack of personal jurisdiction. Thus, the only defendants remaining in the case in any respect were the United States, and individual defendants Amador and Ashton.

The second ruling further dismissed nearly all claims as well as defendants pertinent to those claims, or barred many claims based on the applicable statute of limitations. All claims against federal defendants, with the exception of Amador and Ashton, were barred on account of a lack of personal jurisdiction. Claims against the United States were limited to Claim I. Plaintiff Jordyn Manzer was not barred by a limitations defense as she was under legal age until fairly recently. She was given to leave to amend to fully state her individual claims. Instead of doing that, she simply amended her status as a "full age" woman, and then "reiterated (verbatim) all claims of all plaintiffs and assuming that all defendants were still in the case. The amended complaint is drafted as if the first and second rulings were irrelevant. However, rather than strike her amended complaint on account of ignoring the district court's orders, and thereby take more time in the final analysis, the undersigned will analyze each pertinent claim as presented for which she provides any actionable allegations personal to her.

The amendment by Jordyn Manzer leaves the case in a bit of a procedural twist. The original complaint filed by all plaintiffs remains open, as the court required the United States to seek certification that its employees were acting within the course and scope of their employment before it ruled on the state law claim and the FTCA claim. The Manzer amended complaint remains open as well. Nevertheless, because the two complaints are substantively identical, indeed for all substantive purposes verbatim identical, the undersigned can consolidate a dispositive ruling on the two complaints.

After the second ruling by Judge Karlton, and with respect to these remaining defendants, the only possible claims remaining at issue in both identical complaints, and the plaintiff's/defendants potentially involved are: Claim I-- FTCA claim encompassing allegations of malicious prosecution, malicious abuse of the legal process, abuse of process, assault, battery, false arrest etc.:

Plaintiffs: All

Defendants-- United States

Claim II-- Bivens actions for violation of [various amendments]

Plaintiffs: Jordyn Manzer (all other plaintiffs' claims were dismissed on statute of limitations grounds)

Defendants: Amador and Ashton

The only constitutional claim at issue concerns these two defendants' actions with respect to Manzer at the time of Lonnie Schmidt's arrest.

Claim III- 42 U.S.C. § 1983 actions against non-defendant California city and county officials for violations of various constitutional rights;

Plaintiffs: All

Defendants: None. No remaining federal defendants are state actors; the undersigned will recommend that plaintiffs be given a short time period to serve the now identified state defendants, and no further discussion will be made of this claim.*fn2 Claim IV-- Conspiracy Claim under Bivens and § 1983 Plaintiffs: Jordyn Manzer

Defendants: Amador and Ashton to the extent a conspiracy could be alleged for any actions taken against Jordyn Manzer.

Claim V-- State law claim for malicious prosecution--

Plaintiffs: All

Defendants: None remaining. This claim was stated against the receiver defendants only, and none of them remain in the case. This claim should be finally dismissed, and no further discussion will be made.

Claim VI-- State law claim for conspiracy

Plaintiffs: All

Defendants: this claim contains a mixture of receiver defendants (dismissed) and federal defendants; the only defendants not dismissed on immunity or personal jurisdiction are Amador and Ashton.

Claim VII- Unlawful search and seizure based on the California Constitution and the Fourth Amendment

Plaintiffs: To the extent there exist any pertinent allegations, Jordyn Manzer only with respect to the Fourth Amendment claim; all plaintiffs with ...


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