FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
I. Procedural History, Screening Requirement, and Standard
On July 8, 2010, Plaintiff Douglas W. Hysell ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging various violations, namely RICO. Doc. 1. On July 6, 2011, the Court issued a screening order, dismissing Plaintiff's complaint, with leave to amend. Doc. 10. On September 14, 2011, Plaintiff filed a first amended complaint. Doc. 16.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint, or portion thereof, if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.
While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.
Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at 1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
II. Allegations in Plaintiff's First Amended Complaint
In Plaintiff's first amended complaint, he names thirty-two Defendants and Does Defendants: Matthew Cate, Scott Kernan, James Yates, Dana Allen, Michael Steele, F. Rue, W. Fellows, R. Prokop, R. Spradling, James Wooded, Nathaniel Greene, James Buttle, G. Pbelan, Paul Soares, Jose Andrade, Alfonso Santos, Darrin V. Huckabay, Christine Hudson-Huckabay, Sgt. Oxborrow, C/O Smith, Victor Guerra, Wendy Myers, Roberto Rodriguez, Mary Gellerson, November Erickson, J. Herrera, Mark Sturkey, M. Hodges Wilkins, Nola Grannis, Lateashia Harton, Aaron Shimmin, Ellen Y. Hung, and Does 1-10. Am. Compl. at 1, Doc. 16.
Plaintiff states this is a first amended RICO complaint and cites 18 U.S.C. §§ 1961 et seq. and 18 U.S.C. § 4 Felony Misprison. Id. Plaintiff states that his name is Douglas William Hysell known as "Secured Party," and he appends the ® symbol following his name, for a registered trademark. Id. at 1-2. In July 2007, Plaintiff was transferred from Mule Creek State Prison ("MCSP") to Pleasant Valley State Prison ("PVSP"). Id. at 3. Plaintiff states that when he was transferred Mary Gellerson, J.A. Herrera, Defendant Yates, Defendant Hodges Wilkins, and Defendant Grannis used an underground regulation to confiscate his twenty-six Wicca religion books, oils, incense, and a multi-plug extension cord for candles. Id. at 3-4. Plaintiff and inmate William Rouser both practice the Wicca (Pagan) religion and were transferred in retaliation from MCSP to PVSP. Id. at 5-6. Plaintiff missed his filing deadline for an appeal to the Ninth Circuit because of the transfer. Id. at 6.
On January 25, 2009, Officer Mark Sturkey confiscated his religious oils. Id. at 7. On July 2, 2009 and July 3, 2009, Defendants Pbelan, Soares, Santos, and Rodriguez had Plaintiff attacked by another inmate, which placed Plaintiff in C-Status. Id. at 8. Plaintiff was assisting inmate Rouser with a court case, and when inmate Rouser was transferred from PVSP, the lawyers would no longer be keeping track of prison staff. Id. at 13.
On August 13, 2009, Plaintiff had a rules violation report ("RVR") hearing for the fabricated RVR of disruptive behavior. Id. at 14, 18. Defendant Steele was the hearing officer, and Defendant Erickson is Defendant Steele's ex-wife, and Plaintiff has a two million dollar lien against her from when she fabricated an RVR at Defendant Darrin Hackabay's orders. Id. at 14. Plaintiff was found guilty of the RVR, assessed a thirty-day loss of credits, a ninety-day loss of yard and phone, and placed on A/C status. Id. All appeals and complaints filed by Plaintiff were arbitrarily screened out. Id. at 19. They took over a thousand dollars worth of Plaintiff's property; they reinvest the extorted property back into their corrupt gang; they pay off their liabilities with stolen property; and inmates are paid with artwork and paintings. Id. at 21.
III. Legal Standard and Analysis for Plaintiff's Claims
The Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968 allows a private citizen to sue to recover treble damages for injury "by reason of a violation of section 1962," which prohibits conducting or participating in the conduct of an enterprise through a pattern of racketeering activity or through the collection of an unlawful debt. 18 U.S.C. § 1962. A violation of section 1962(c) requires 1) conduct 2) of an enterprise 3) through a pattern 4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). Furthermore, the plaintiff must actually be injured by the conduct which purportedly violates 18 U.S.C. § 1962. Sedima, 473 U.S. at 496.
The RICO statute enumerates specific acts which constitute predicate acts to satisfy the racketeering activity element. 18 U.S .C. § 1961(1). In the present case, Plaintiff's RICO allegation is confusing at best. Plaintiff alleges that Defendants took over a thousand dollars worth of Plaintiff's property; they reinvest the extorted property back into their corrupt gang; they pay off their liabilities with stolen property; and inmates are paid with artwork and paintings. Am. Compl. at 21, Doc. 16.
In pleading a RICO violation, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face . . . and [the facts] must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556. In the present case, although Plaintiff states that defendants or CDCR violated 18 U.S.C. § 1962(c), his allegations are vague and conclusory.
An alternative to proving a pattern of racketeering activity is to prove that the enterprise acquired or operated by means of an unlawful debt. 18 U.S.C § 1961(6) defines an unlawful debt as "a debt (A) incurred or contracted in gambling activity which was in violation of the law of the United States, a State or political subdivision thereof, or which is unenforceable under State or Federal law in whole or in part as to principal or interest because of the laws relating to usury, and (B) which was incurred in connection with the business of gambling in violation of the law of the United States, a State or political subdivision thereof, or the business of lending money or a thing of value at a rate usurious under State or Federal law, where the usurious rate ...