UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 22, 2012
MEL M. MARIN,
ESCONDIDO CARE CENTER, ET AL,
The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
Order Sua Sponte Dismissing Complaint for Failure to State a Claim, Revoking In Forma Pauperis and Denying Motion to Reconsider Dismissal Order [Doc. Nos. 18 and 20]
Presently before the Court is the Plaintiff's First Amended Complaint ("FAC"), (Doc. No. 18-1), and the Plaintiff's motion to rehear dismissal order, (Doc. No. 20). For the reasons stated herein, the sua sponte DISMISSES the Complaint for failure to state a claim and DENIES the Plaintiff's motion to rehear the dismissal order.
On July 21, 2011, the Plaintiff, Mel. M. Marin, a non prisoner proceeding pro se, filed a complaint against approximately 24 defendants.*fn1 (Doc. No. 1.) In the Complaint, the Plaintiff alleges that Defendants committed numerous torts including, conversion, fraud and deceit, intentional infliction of emotional distress, assault and battery, personal injury, deceptive trade practices, financial abuse, false representation, breach of fiduciary duty, violation of the civil rights act, and wrongful death. (Id.)
Simultaneously, the Plaintiff filed a Motion to Proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and Local Rule 3.2(a). (Doc. No. 2.) On September 29, 2011, this Court denied the Plaintiff's Motion to Proceed in forma pauperis because his motion failed to state an inability to pay costs or give security with particularity, definiteness, and certainty. (Doc. No. 3.) The Plaintiff thereafter submitted additional information regarding his economic status and this Court granted his Motion to Proceed in forma pauperis on December 12, 2011. (Doc. No. 8.) On May 21, 2012, the Plaintiff filed a Motion to Direct Marshal to Serve. (Doc. No. 14.) On May 30, 2012, the Court dismissed the Plaintiff's complaint for failure to state a claim and for lack of standing. (Doc. No. 16.) The Plaintiff was granted 30 days to file an amended complaint correcting the deficiencies. (Id. at 7.) On July 3, 2012, the Plaintiff filed his FAC. (Doc. No. 18.) In the FAC, the Plaintiff includes approximately sixty-two Defendants and alleges thirty-four causes of action. (Id.) The Plaintiff requests relief in the form of monetary damages against all the Defendants for varying reasons and amounts,*fn2 for a total of over 6.5 billion dollars in damages.
A court may dismiss, sua sponte, a case at any time if it determines the plaintiff failed to state a claim on which relief may be granted pursuant to § 1915(e)(2). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short an plain statement of the claim showing that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Rule 8 of the Federal Rules of Civil Procedure "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678. (citations and internal quotation marks omitted). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Id. at 678. (citations and internal quotation marks omitted).
I. Unauthorized Practice of Law
In the Plaintiff's FAC, he maintains that he brings this action on behalf of himself, his deceased mother and deceased father. (Doc. No. 18-1, at 10.) The Plaintiff claims that he has standing to sue on their behalf because they bestowed upon him power of attorney before they died. (Id.) However, "[a]lthough a non-attorney may appear in propria persona in his own behalf, that privilege is personal to C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (1987) (citations omitted). "While a non-attorney may appear pro se on his own behalf, [h]e has no authority to appear as an attorney for others than himself." Johns v. Cnty of San Diego, 114 F.3d 874, 876 (1997) (citations and internal quotation marks omitted). The Plaintiff's power of attorney can not correct this deficiency. Johns, 818 F.2d at 876. If the Court were to allow the Plaintiff to continue litigating his parents claims pro se the Plaintiff would be engaging in the unauthorized practice of law. All claims on behalf of the Plaintiff's deceased mother and father must be dismissed without prejudice. If the Plaintiff wishes to litigate these claims he must retain a licensed attorney to do so.
II. Failure to State a Claim Upon Which Relief Can be Granted
Even if the Plaintiff could appear on behalf of his deceased parents,
his FAC fails to state a claim upon which relief can be granted. Due
to the length of the Plaintiff's FAC,*fn3 the number
of Defendants*fn4 and causes of action,*fn5
and in the interest of time and judicial economy, the Court
will address the causes of action together. The Plaintiff's
allegations are too numerous for this Court to describe and are, at
times, incomprehensible. The Plaintiff, in essence, alleges that all
62 Defendants conspired to kill and torture his mother so she could
not testify against them for numerous other offences that occurred
over the course of ten years. All of the Plaintiff's claims share the
same defect. The Plaintiff's allegations are conclusory in nature and
lack sufficient factual matter to state a claim upon which relief can
be granted. Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain a short plain statement of the
claim showing that the pleader is entitled to relief. Iqbal, 556 U.S.
at 677. The Plaintiff's FAC is lengthy and contains rambling
allegations of the wrongs allegedly done to him, his mother, and his
father over the past 10 years by the sixty-two named Defendants. The
Plaintiff attempts to remedy the defects in his complaint by including
allegations tailored to the elements of the various causes of action.
However, these allegations simply offer conclusory labels in a
formulaic recitation of the elements of the causes of action. This is
not enough to remedy the defects in the Plaintiff's complaint. Iqbal,
556 U.S. at 678. (citations and internal quotation marks omitted). The
Plaintiff simply gives general conclusions that the Defendants have
harmed him and he is entitled to relief and that the Defendants
conspired to commit these wrongs against him, and are therefore liable
for each other's actions. However, the Plaintiff fails to explain this
alleged conspiracy. He merely gives the general conclusion that all
sixty-two Defendants conspired to kill his mother to stop her from
testifying in numerous alleged court cases and they are therefore all
liable. Based upon the foregoing, the Court finds the conclusory
nature of the Plaintiff's claims fail to provide sufficient factual
support to state a claim upon which relief can be granted.
The Court further notes that the Plaintiff has an extensive history of litigation. This history includes the Plaintiff's habit of abusing the courts and the legal system to file numerous frivolous claims.*fn6
III. Request for Summary Judgment
In the fifth cause of action, the Plaintiff requests that the Court grant summary judgment against Defendants Richter, the Arizona Bank of Trustees, Michael McGrath and the law firm Mesch, Clark, and Magnolia Bearcat. (Doc. No. 18-1, at 36.) The Plaintiff requests that the Court find that "Richter did not speak for Mother because son had the only valid power of attorney or a greater right, and that the purported settlement agreement in the Arizona bankruptcy court did not affect the rights of either Mother or Father or son as to any property." (Id.)
Summary judgment requires the trial judge direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Anderson v. Liberty Lobby, INC., 477 U.S. 242, 251 (1986). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. The
Court finds that the Plaintiff has failed to meet this standard because the Plaintiff has failed to demonstrate he is entitled to judgment as a matter of law and has failed to show that there is no genuine issue of fact.
IV. Motion to Rehear Dismissal Order
The Plaintiff filed a motion, (Doc. No. 20), to rehear dismissal order. The Plaintiff requests that the Court reconsider the sua sponte dismissal, (Doc. No. 16), of his original complaint. (Doc. No. 20, at 1.) The Court finds the Plaintiff's motion to be without merit as the Plaintiff's original complaint was dismissed with leave to amend.
V. In Forma Pauperis
The Court "has the inherent power to reconsider or modify an interlocutory order at any time prior to the entry of judgment." Murr Plumbing, Inc., v. Scherer Bros. Fin. Servs. Co., 48 F.3d 1066, 1070 (8th Cir. 1995). On December 12, 2011 this Court granted the Plaintiff's motion to proceed in forma pauperis. (Doc. No. 8.) However, the Court has determined that it's December 12, 2001 order was in error, because the Court inadvertently overlooked several factors tending to prove that the Plaintiff did not make an adequate showing that he is unable to pay the filing fee. In his affidavit, Plaintiff claims he is currently unemployed, but expects to receive a payment of $85 for temporary work painting a house. (Doc. No. 2, at 2.) Plaintiff also alleges that during the last academic year, he received $660 a month to attend college, and that he owns a 1995 Dodge Caravan. (Id.) Plaintiff claims that he owns a house in Pennsylvania as a trustee for family trust, but that the house has no value. With regard to his current debt obligations, Plaintiff states that he has "plenty," but "do not have those records." (Id.) Plaintiff fails to provide the sources of funds for his day-to-day expenses. The Plaintiff does not demonstrate that he lacks the financial resources or assets to pay the costs of commencing this action. The Plaintiff owns his car outright, and he lists a house in Pennsylvania as his property. In light of the forgoing, the Court finds that given the Plaintiff's assets and failure to articulate his financial resources for day-to-day expenses, the Court lacked sufficient basis to grant the Plaintiff in forma pauperisstatus. As such, the Plaintiff's in forma pauperisstatus is hereby revoked and the Plaintiff is ordered to file an amended application that sets forth all of the relevant information required or pay the filing fee, should he chose to file an amended complaint.
For the reasons set forth above, the Court finds the Plaintiff fails to state a claim upon which relief can be granted. This Court therefore, DISMISSES Plaintiff's FAC without prejudice. The Plaintiff's motion to rehear dismissal order is DENIED. Plaintiff has thirty (30) days from the date of this order to file an amended Complaint correcting the deficiencies noted herein and to file an amended in forma pauperis application that sets forth all of the relevant information required or pay the appropriate filing fee. Failure to do so will result in the Court's dismissal of this case.
IT IS SO ORDERED.